PART
THREE
LITIGATION AND LEGALISM
IN ELIZABETHAN ENGLAND
Greene’s story, as it happens, is
a systematic plagiarism from the doggerel poem The Debate Between
Pride and Lowliness, by Francis Thynne, a young attorney, probably
written and privately printed, but not published before 1570.*
The curious thing is, however, that Greene puts the case in a more lawyerlike
way than does the lawyer, who is mainly concerned to moralise, and whose
point lies in the destruction of Cloth-breeches by a miscellaneous jury
whose sympathies are with Velvetbreeches, the rich oppressor; whereas
Greene gives the legal victory to the man with right on his side, on
legal grounds. Thynne mentions the maxim nul tort, nul disseisin,
merely as a comment in epilogue: Greene brings it into the case.
The story was long popular: evidently the public taste for legalism
could be relied on by both authors and publishers. And Greene, as we
have seen, freely employs legal phraseology in other tales. In this
he has a phrase about "statute marchant or staple" which is
not in his original; and in the Defence of Coney-Catching (Works,
xi, 55), among other "legal" expressions, there is a transaction
in which a borrower "promised to acknowledge a statute staple"
to the borrower, "with letters of defeysance," and further
"made an absolute deed of gift from wife [152]
and children this usurer of all his lordship," [worth in "rent
of assise seven score pounds by the year"] "and so had the
2000 marks upon the plain forfeit of a bond." In Alcida,
Greene’s Metamorphosis (1588), we have the dictum "Where
love serveth his writ of command, there a supersedeas of reason
is of no avail" (Works, ix, 42). If such a quantity of technical
phraseology and procedure had been found in a Shakespearean play, it
would have been pronounced proof positive of the saturation of the poet’s
mind with legal ideas through a legal training. But Greene was no more
a lawyer than Nashe.
Even Spenser in the Faerie Queene**
follows the prevailing fashion:
On a day when Cupid held his court,
As he is wont at each Saint Valentine,
a fair cruel maid is found to have "murdred"
many sighing lovers.
Therefore a jury was impannelled straight
...
Of all these crimes she there indited was.
All which when Cupid heard, he by and by
In great displeasure willed a Capias
Should issue forth t’ attach that scornful lass.
The warrant straight was made, and therewithal
A Bailiff-errant forth in post did pass,
Whom they by name there Portamore did call,
He which doth summon lovers to love’s judgment hall.
The damsel was attacht, and shortly brought
Unto the bar whereas she was arraigned;
But she thereto nould plead, nor answer ought. .
. .
So judgment past, as is by law ordained
In cases like, which when at last she saw . . .
Cried mercy, to abate the extremitie of law.
Turning to the drama, we find the expedient of a trial
resorted to by half the dramatists of the period. Peele makes a trial
the central matter of his Arraignment of Paris (1584), which
precedes Marlowe. Jonson employs the expedient again and again. In The
Poetaster he [153] puts into the form
of a trial his quarrel with his rivals and calumniators, as does his
antagonist Dekker in Satiromastix. An elaborate trial scene is
inserted in Volpone, with "Avocatori, Notario, Commandatori,
Saffi, and other officers of justice": and the procedure is incomparably
more court-like than that in the trial of the case of Antonio and Shylock.
In The Silent Woman there is a long scene
in which a divine and a canonist debate at length on the law of divorce
as they might have done in a court. In The Staple of News there
is a parade of characters representing legal abstractions—Mortgage,
Statute, Band, Wax, with a lawyer Picklock—and in The New Inn
we have, as aforesaid,*** a "Court of Love"
scene in a room "furnished as a tribunal," where the maid
Prudence "takes her seat of judicature" and calls for the
clearing of the court and administration of oaths. In his other plays,
as we have seen, legalisms abound: in The Magnetic Lady, as we
shall see, there is far more legal "shop" and talk about lawyers
than in any three plays of Shakespeare. A plays-cene was in fact counted-on
as a "draw," though Jonson did not succeed with The New
Inn. Chapman and Rowley make their entire play of The Admiral
of France a tissue of judicial investigations. An inquiry, held
by way of a trial, and corruptly swayed by an iniquitous Chancellor,
is followed by another trial, in which, the King’s Advocate prosecuting,
the Chancellor is exposed and brought to justice. One or both of the
authors had certainly watched trials, as nearly everybody in that day
did; and there is a probability that the elaborate harangues in this
play were modelled upon printed reports. Yet neither Chapman nor Rowley
was a lawyer. A less elaborate but still lengthy trial scene occurs
in Buron’s Tragedy: the device was evidently popular in the period;
and in Chapman’s plays it must have been the main attraction. [154]
Other playwrights show the same proclivity. In Dekker’s
Old Fortunatus (v, 2), in the scene in which Vice and Virtue
and Fortune dispute, the effect of a trial is got by a reference to
the Queen in the audience:
Fortune. Thou art too insolent:
see, here’s a court
Of mortal judges: let’s by them be tried,
Which of us three shall most be deified.
And in If This Be Not a Good Play,
The Devil Is In It**** we have similar extempore
effects:
Pluto. Sit, call a sessions set the souls to
a bar.
3. Jud. Make an Oyes! . . .
Shacklesoul. A jury of brokers impannell’d
and deeply sworn, to pass on all the villains in hell.
Then follows a trial of souls of bad men—Ravaillac, Faust,
&c. In A Warning for Faire Women (1599) there is a long trial
scene to which, for detail, formality, and general realism, there is
no parallel in Shakespeare’s plays. A murderer, concerning whose case
there has already been much amateur detective investigation, is tried
before "the Lord Mayor, the Lord justice, and the four Lords, and
one clerk, and a Sheriff," who enter in due form. The Lord justice
calls:
Bring forth the prisoner, and keep silence
there.
Prepare the Inditement that it may be read.
The clerk duly does so, the document being given in full,
in the strict form of the day. The criminal is told in full legal detail
how "with one sword, price six shillings," he accomplished
his crime: and on his pleading guilty the case proceeds exactly as such
a case might, the judge pronouncing a homily before passing sentence.
The abettors of the crime are then brought in and indicted "jointly
and severally," with the same technical precision, and searching
questions are put to the guilty persons. The "inditements"
stand as documents of Elizabethan criminal procedure. Had such a scene
been found in a Shakespearean play, it would have been [155]
claimed by the legalists as overwhelming evidence of Shakespeare’s
lawyership. The play is anonymous, and is conjecturally ascribed by
Fleay to Lodge, whose training was in medicine. Shakespeare’s it certainly
is not, though Shakespeare in Macbeth echoed some of its lines.
(See below, Ch. ix.)
In A Looking Glass for London, Greene and Lodge
insert an elaborate trial scene for the purpose of showing how justice
was perverted both by advocates and judges in the interest of usurers:
the trial being here presented, as it were, for its own sake.
In The Fatal Dowry, Massinger sets out, in "A
Street before the Court of Justice," with a discussion on the arbitrary
ways of law courts; and the second scene consists in the hearing of
a plea to set aside the rigour of justice in the case of a dead body
seized for debt. In the second Act the debate is continued. In the fourth
Act the wronged husband causes his father-in-law, an ex-judge, to try
the cause of the unfaithful wife, telling the servants to set down the
body of the slain seducer "before the judgment seat"; and
the wife is to "stand at the bar":
For me, I am the accuser.
In the fifth Act, finally, the husband is himself formally
tried in court for his act of vengeance; the victim’s father, a judge,
being present. The whole conduct of these trials is sufficiently unlawyerlike;
but that is not the question. The point is that, like Shakespeare, the
other dramatists, without legal training and without concern for strict
legal form, spontaneously resorted to trials and court procedure as
a dramatic method.
In The Maid of honour, Massinger makes the heroine
plead her cause before the King as before a judge
To do me justice,
Exacts your present care, and I can admit
Of no delay. If, ere my cause be heard,
In favour of your brother you go on, sir, [156]
Your sceptre cannot right me. He’s the man,
The guilty man, whom I accuse; and you
Stand bound in duty, as you are supreme,
To be impartial. Since you are a judge,
As a delinquent look on him, and not
As on a. brother: Justice painted blind
Infers her ministers are obliged to hear
The cause: and truth, the judge, determine of it
And not sway’d or by favour or affection,
By a false gloss or wrested comment, alter
The true intent or letter of the law. . . .
I stand here mine own advocate.
Legal style and diction are lent to the scene in excess
of any need in the situation, for it takes place in a room of the palace.
The King in judicial style says:
Let us take our seats.
What is your title to him?
By this contract,
Seal’d solemnly before a reverend man,
I challenge him for my husband.
[Presents a paper to the King.]
We are witnessing a drama cast in legal forms,
for the entertainment of an audience accustomed to hear law and talk law,
by a dramatist who has no more special legal knowledge than they. Had
Lord Campbell had it before him as a Shakespearean work he would unquestionably
have professed to find in it proof of close familiarity with legal procedure,
though in point of fact, like Shakespeare’s own legal scenes, it is as
loose as may be in its imitation of the real work of courts.
Middleton, in turn, makes the whole play of The Widow
turn on the getting of warrants, arrests, bails, the attempt to secure
a widow in marriage by having concealed witnesses to her verbal "contract,"
the attempt on her part to escape by litigation, and her "deed
of gift" which, as she announces, "was but a deed in trust."
Middleton, we shall be told, was a barrister; and it must have been
his professional experience that so filled his [157]
head with legal ideas and terms that he bestows them on the widow. But
in his other plays he uses no such machinery; and Webster, who was a
"Merchant Taylor," makes three of his plays—The White Devil,
The Devil’s Law Case, and Appius and Virginia—turn upon
formal trials, besides introducing a trial scene into The Famous
History of Sir Thomas Wyat, which he wrote in collaboration with
Dekker. Concerning the second of the plays named, Mr. Devecmon has remarked
that it contains "more legal expressions, some of them highly technical,
and all correctly used, than are to be found in any single one of Shakespeare’s
Works."† Upon my citation of this judgment††
Mr. Greenwood protests††† that
the fact is that the statement as to The Devil’s
Law Case is not only not true, but so preposterously contrary
to the truth that one can hardly believe that Mr. Devecmon had read
the drama in question. There is, incredible as it may sound, practically
no law at all in Webster’s play! There are indeed a few legal terms
such as "livery and seisin," a "caveat," "tenements,"
"executors," thrown in here and there, and there is an absurd
travesty of a trial where each and everybody—judge, counsel, witness,
or spectator—seems to put in a word or two just as it pleases him
but to say that there are "more legal expressions" in the
play (and some of them highly technical and all correctly used) than
are to be found in any single one of Shakespeare’s works," is
an astounding perversion of the fact, as any reader can see who chooses
to peruse Webster’s not very delicate drama. I cannot but think that
Mr. Robertson had either not read the play, or had forgotten it when
he quoted this amazing passage.
I am quite willing to stake the entire question upon this
issue. Mr. Greenwood might, I think, have taken the trouble to collate
the legal references in The Devil’s Law Case, and compare them
with Lord Campbell’s citations from any one Shakespearean play: it would
have been more to the purpose than any amount of simple [158]
asseveration, however emphatic. He would thus have learned
that the "few" legal terms which he dismisses as of no account
are exactly on a par with most of those cited by Campbell from Shakespeare
(only more realistic), and with those cited by Grant White in a passage
which he himself has quoted with approbation. Having read Webster’s
play thrice—which is more, I fear, than Mr. Greenwood had done by Campbell’s
book—I will make good his omission. The following "legal"
phrases are cited as they come, Act by Act:
ACT 1. SCENE 1.
Romelio. He makes his colour
Of visiting us so often, to sell land.
Contayino. The evidence of the piece
of land
I motion’d to you for the sale.
Leonoya. To settle your estate.
ACT 1. SCENE 2.
Jolenta. Do you serve process on me?
Rom. Keep your possession, you have the door by
the ring
That’s livery and seisin in England.
Ercole. To settle her a jointure.
Jolenta. To make you a deed of gift.
Winifred. Yes, but the devil would fain
put in for’s share
In likeness of a separation.
Contarino. You have delivered him guiltless.
ACT. II. SCENE 1.
Julio. Any action that is but accessory.
Crispiano. One that compounds quarrels.
Ercole. Your warrant must be mighty.
Contarino. has a seal
From heaven to do it.
ACT II. SCENE 3.
Ariosto. What should move you
Put forth that harsh inter’gatory?
Romelio. The evidence of church land. . . .
A supersedeas be not su’d.
Lonora. To come to his trial, to satisfy the law. [159]
ACT II. SCENE 4.
Capuchin. The law will strictly prosecute his
life.
ACT III. SCENE 2.
Romelio. He has made a will . . . and deputed
Jolenta his heir.
Romelio. If we can work him, as no doubt
we shall,
To make another will, and therein assign
This gentleman his heir. .
Romelio. I must put in a strong caveat.
To put in execution Barmotho pigs.
Here’s your earnest.
ACT III. SCENE 3.
Romelio. You are already made, by absolute
will,
Contarino’s heir: now, if it can be prov’d
That you have issue by Lord Ercole,
I will make you inherit his land too. . . .
I have laid the case so radically
Not all the lawyers in [all] Christendom
Shall find any the least flaw in’t. . . .
No scandal to you, since we will affirm
The precontract was so exactly done
By the same words us’d in the form of marriage,
That with a little dispensation,
A money matter, it shall be register’d
Absolute matrimony.
ACT IV. SCENE 1.
A long quibbling dialogue between Ariosto, the advocate,
and Sanitonella, who has been "dry-founder’d" in a pew of
a law office "this four years, seldom found non-resident from
my desk," and presents a brief which "cost me four nights’
labour." Ariosto tears it up; and the clerk "must make shift
with the foul copy." Cantilupo, being next consulted, pronounces,
"‘Tis a case shall leave a precedent to all the world";
Sanitonella concluding, "The court will sit within this half
hour; peruse your notes; you have very short warning."
ACT IV. SCENE 2. TRIAL.
Ercole pays an officer to get a seat in "a closet
belonging to the court," where he "may hear all unseen";
and Sanitonella warns the officers to "let in no brachygraphy-men
to take notes," and, as "this cause will be long a-pleading,"
produces a pie which he "may pleasure some of our learned counsel
with," as he has done "many a time and often when a cause"
has dragged long. [160]
The judge asks whether the parties are present; and
on Romelio saying he is ignorant of what he is to be charged with,
says:
I assure you, the proceeding
Is most unequal then, for I perceive
The counsel of the adverse party furnish’d
With full instruction . . .
Sir, we will do you
The favour, you shall hear the accusation
Which being known, we will adjourn the court
Till a fortnight hence: you may provide your counsel.
After further dialogue, Cantilupo, opens:
May it please your lordship and the reverend
court
To give me leave to open to you a case
So rare ‘ so altogether void of precedent,
That I do challenge all the spacious volumes
Of the whole civil law to show the like.
We are of counsel for this gentlewoman.
We have receiv’d our fee: yet the whole course
Of what we are to speak is quite against her.
Yet we’ll deserve our fee too.
After he has lengthily stated his case, the judge comments:
A most strange suit this; ‘tis beyond example,
&c.
and proceeds to question the parties. When a witness is
asked for, Sanitonella. responds, "Here, my lord, ore tenus,"
and there is a long cross-examination.
In Act v, Scene 4, we have a passage which may be instructively
contrasted with Lord Campbell’s illustration of Shakespeare’s deep and
accurate knowledge of the procedure of trial by battle:
Julio. I have undertaken the challenge
very foolishly.
Prospero. It would be absolute conviction
Of cowardice and perjury; and the Dane
May to your public shame reverse your arms,
Or have them ignominiously fasten’d
Under his horse-tail.
And in Scene 6 we have the actual trial by battle. The
Marshal begins in due form:
Give the appellant his summons: do the
like
To the defendant; [161]
the proceedings go on with ostensible technical accuracy;
and we have the herald’s cries: "Soit la bataille, el
victoire â ceux qui ont droit!" What would not Lord Campbell
have made of it all!
________
* See J. P. Collier's preface to the Shakespeare
Society's reprint (1841) of Thynne's poem. back
** B. VI. c. vii, 33-37. back
*** Above, pp. 123-5.
back
**** Pearson's ed. vol. iii, p. 353. back
† In re Shakespeare's Legal Acquirements,
p. 8. back
†† Did Shakespeare write 'Titus Andronicus'?,
1905, p. 54. back
††† The Shakespeare Problem Restated,
p. 398. back
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