PART TWO
LITIGATION AND LEGALISM
IN ELIZABETHAN ENGLAND

In respect of the state of society in which this was a normal experience, it is hardly necessary to prove that Shakespeare had any special inducement in youth to take an interest in legal procedure. But, as it happenedl he had. It is generally known, and the legalists might have been expected to remember, that Shakespeare’s father was a man of many lawsuits. But nowhere in connection with this question, I think, has note been taken of the extent and significance of that experience in the Shakespeare household. It has been left to a clerical writer—partly bent on proving the quite arguable thesis that John Shakespeare was a Puritan recusant; partly on pressing the fantastic one that William Shakespeare was a profound Biblical student—to bring out the full force of the evidence as to the father’s manifold experience of law courts. The summary is that "He was one of the most litigious of men. . . . From July, 2 Philip [146] and Mary, to March, 37 Elizabeth, there are no less than sixty-seven entries of cases in which his name appears on one side or the other; and some of his actions are with his best friends, as Adrian Quiney, Francis Herbage, Thomas Knight, and Roger Sadler; but in 1591 there is only one entry, wherein John Shakespeare sued as plaintiff in a debt recovery action and won with costs."*

This noteworthy record, and many of the details on which it is based, bring out three facts of obvious importance in the biography of Shakespeare: (1) the normality of litigation in Stratford as in Elizabethan England in general; (2,) the abundant share of the Shakespeares in legal experience; and (3) the possibility of error in the old inference, accepted by most of us, as to the father’s impecuniosity. The fact seems to be that when John Shakespeare was distrained upon for debt and the writ was returned (1586) endorsed with the note, "quod praedictus Johannes Shakspere nihil habet unde distringere potest habet," he was not at all devoid of means, but was simply baffling the suit against him. Real property he certainly possessed at that time,** as did other substantial citizens who were also being proceeded against;*** to say nothing of the obvious consideration that he must have had household furniture. I will not attempt here to decide the problem as to whether the whole episode of John Shakespeare’s finings and the disqualification consequent on his non-attendance at the Council was simply a matter of his recusancy. The prima facie case for that view is extremely strong; but it calls for a more searching investigation than I have yet met with; and I simply note that it puts in doubt the whole theory of John Shakespeare’s progressive impecuniosity, which in the past I had accepted like others. Mr. Halliwell-Phillipps had indeed pointed out that when Alderman [147] Shakespeare went on paying heavy fines for persistent non-attendance at the Council, it was "not an evidence of falling-off in circumstances, but rather the opposite, for it implies on the contrary the ability to pay the fines for non-attendance, for we cannot doubt that if he had not paid them some notice would have appeared in the books."**** This, however, was not convincing; and the theory of lack of funds was ostensibly the reasonable one. But on a review of all the data the question must be pronounced unsettled; and among other things the theory that the boy William had to leave school at thirteen because of his father’s pecuniary embarrassments is obviously put in doubt.

Whatever be the ultimate solution, it is at least clear that the boy Shakespeare had not less but more than the normal Elizabethan ground of interest in legal matters. It would be idle for the "anti-Stratfordians" to argue that we have no evidence of his taking any interest in his father’s litigations. It might as well be said that we have no evidence of his caring about anything. Common sense warrants the belief that he heard endless talk in the home circle on legal matters; and the very illiteracy of his father, so often stressed by the Baconians and their allies, carries the irresistible presumption that the boy was called on to read some legal documents for his parents. In view of our previous survey of the legalisms in the plays it is worth noting that the enigmatic document of agreement between John Shakespeare and Robert Webbe, entered into in 1579, makes mention of "feoffments, grants, entails, jointures, dowers, leases, wills, uses, rent charges, rent sects, arrearages of rent, recognizance, statute merchant and of the staple, obligations, judgments, executions, condemnations, issues, fines, amercenients, intrusions, forfeitures, alienations without license," &c.† Of most of these terms John Shakespeare, with his many litigations and title-deeds, was likely enough [148] to know the meaning, whether or not he could sign his name. Between the documents and the lawsuits, his son had occasion enough to know as well as any layman of his day the common vocabulary of lawyers, which is practically all that his plays indicate him to have known. And as that very transaction about the Asbies, with which the Webbe agreement connects, dragged on long after he was a grown man, and came into the court of Chancery in 1597—"after the days of persecution were over," as Mr. Carter notes, when a recusant could go to law without fear of amercement—William Shakespeare had a personal interest in studying all the documents concerned. If Mr. Grant White and the legalists had taken such things into account, they might have found a simple solution for the occurrence of legal terms in the plays.

But Shakespeare’s experience, be it repeated, was not abnormal in that litigious and court-haunting age. The public in general had the same proclivities, and the other dramatists, as we have seen, catered freely for the same appetite. The habit of court-haunting is indicated in Webster and Rowley’s Cure for a Cuckold (iii, 1):

and in the same scene a character sententiously puts sex attraction in a legal figure:

Latimer in the pulpit (1529) turns to homiletic account

three terms which we have common and usual amongst us, that is to say, the sessions of inquirance, the sessions of deliverance, and the execution day. Sessions of inquirance is like unto judgment; for when sessions of inquiry is, then the judges cause twelve men to give verdict of the felon’s crime, whereby he shall be judged to be indicted: sessions of deliverance is much like council: for at sessions of deliverance the judges go among themselves to council, to determine sentence against the felon; [149] execution-day is to be compared with hell-fire. . . . Wherefore you may see that there are degrees in these our terms, as there be in those terms.††

The same habit of court-haunting is taken for granted by Sir Thomas Elyot (1531):

And in the country, at a sessions or other assembly, if no gentyl men be thereat, the saying is that there was none but the commonalty.†††

The habits of Henry the Eighth’s day in this regard had not changed in Elizabeth’s. No matter in what country they lay their scene, the dramatists assume the universal interest in matters of law and litigation.

Heard he a lawyer, neer so vehement pleading,

and Chapman had made a personage say, before Dickens:

Nashe, in one of his hilarious wrangles with Gabriel Harvey, in Four Letters Confuted, plunges into the trial form as naturally as any dramatist, thus:

After a quotation and a comment, we have:

You would foist in non causam pro causa. . . . If you have any new infringement to destitute the indictment of forgery that I bring against you, so it is.

Here enters Argumentum a testimonio humano, like Tamburlaine drawn in a chariot by four kings.††††

In Greene’s story, A Quip for an Upstart Courtier, similarly, the onlooker in the quarrel between Velvet-breeches and Cloth-breeches says to the former:

Listen to me, and discuss the matter by law; . . . you claim all, he [Cloth-breeches] would have but his own: both plead an absolute title of residence in this country: then the course between you be trespass or disseisin of frank tenement: You, Velvet-breeches, in that you claim the first title, you shall be plaintiff and plead a trespass of disseisin done you by Clothbreeches, so shall it be brought to a jury, and tried by a verdict of twelve or four-and-twenty.

The reply is that Velvet-breeches cannot rely on juries’ justice, "for my adversary is their countryman and less chargeable: he shall have the law mitigated if a jury of hinds or peasants should be empannelled." Upon this comes the rejoinder:

You need not doubt of that, for whom you distrust and think not indifferent, him you upon a cause manifested, challenge from your jury.

If your law allow such large favour, quoth Velvet-breeches, I am content my title be tried by a jury, and therefore let mine adversary plead me Nul tort nul disseisin.‡ [151]

Later there is a literary jury-trial, and the narrator addresses the jury, first naming a knight as foreman:

Worshipful sir, with the rest of the jury, whom we have solicited of choice honest men, whose consciences will deal uprightly in this controversy, -you and the rest of your company are here upon your oath and oaths to inquire whether Cloth-breeches have done disseisin unto Velvet-breeches, yea or no, in or about London, in putting him out of frank tenement, wronging him of his right and imbellishing [weakening] his credit: if you find that Cloth-breeches hath done Velvet-breeches wrong, then let him be set in his former estate and allow him reasonable damages.‡‡

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* Rev. T. Carter, Shakespeare: Puritan and Recusant, 1897, p. 166. back

** Work last cited, pp. 30, 93, 124, 159. back

*** Id. p. 165. back

**** Citation by Carter, p. 125. back

† Carter, as cited, p. 98. back

†† Sermons, ed. cited, pp. 9-10. back

††† The Boke named the Governour, ed. in same series, p. 2. back

†††† Works, ed. cited, i, 293. back

‡ Works, ed. Grosart, xi, 228-9. back

‡‡ Id. p. 293. back