The Courts

DESPITE Shakespeare's frequent use of legal phrases and allusions his knowledge of law was neither profound nor accurate, and it is unnecessary to explain such knowledge as he had by assuming that he enjoyed even a legal education as clerk in a lawyer's office. [COMMENT 1] In Shakespeare's England the Inns of Court were not, as now, merely inhabited by practicing barristers for business purposes. Their members formed a real and very lively community, dwelt in the Inns, dined habitually in their halls, and regarded them much as University men still regard their colleges. They were the intellectual as well as the geographical centre of London. The Inns of Court men, as we know, delighted in 'masques and revels' and dramatic performances, and at least three of Shakespeare's plays were acted in the Halls of the Middle Temple and Gray's Inn. Many authors of that age beside Shakespeare made free use of legal phrases and allusions. The writings of Ben Jonson, Spenser, Webster, Beaumont and Fletcher, and others are full of them.

It seems probable, therefore, that both dramatists and actors were much in legal society, and picked up the technical phraseology and legal slang of the day. The dramatist and his father, like most of their contemporaries, were prone to litigation, and not infrequently figured in suits in the local Court of Record at Stratford-upon-Avon. The dramatist's purchases of houses and land in his later life must also have brought him into professional contact with lawyers and legal procedure.

Many of Shakespeare's allusions (such as those referring to fines and recoveries, which seemed to Lord Campbell to infer profound knowledge of the abstruse law of real property) related to picturesque and grotesque proceedings which were in Shakespeare's time of constant occurrence in the Westminster Courts, and only seem profound and difficult to lawyers of the nineteenth and twentieth centuries because they have become archaic and unfamiliar. [COMMENT 2] Possibly their solemn absurdities tickled Shakespeare's sense of humour. In addition to these considerations it must not be forgotten that the connotation of many words once in general use has, like the forensic wig, survived only in the Courts. For instance, the word 'determine', in the sense of 'put an end to', is now only used by lawyers, whereas in Shakespeare's time it was in common use. Thus in the Sonnets (xiii) Shakespeare writes as a lawyer might still write:

So should that beauty which you hold in lease
Find no determination.

But, on the other hand, in Antony and Cleopatra (IV. iv. 36-7) we find

That he and Cæsar might
Determine this great war in single fight!

where the word is used in precisely the same sense without any legal allusion whatever. [A. REFUTED]

The following passage in Love's Labour's Lost (II. i. 320-1) no doubt seems at first sight marvellously technical:

Boyet. So you grant pasture for me.
Maria. Not so, gentle beast
My lips are no common, though several they be.

This alludes to the distinction, familiar to real property lawyers, between a right to take something from another's land (e.g. fish, game, or pasture) to the exclusion of all others (in which case it is called a 'several', i.e. severed right), and a similar right exercisable in common with others (in which case it is called a 'profit in common'). Maria doubtless meant that her lips were not to be enjoyed in common, though they were intended for the several (i.e. exclusive) use of one favoured man. That Shakespeare borrowed this 'quaint conceit' from one of his legal friends is all the more probable because the allusion is not technically accurate, for it attributes the 'several' and 'common' to the lips rather than to the right to kiss them, and uses the word 'though' incorrectly, in place of 'but', which rather suggests that he considered common rights to be in some way connected with, instead of opposed to, several ones. [B. REFUTED]

However, whether Shakespeare received any legal training or not, his numerous legal allusions and those of other contemporary English authors afford interesting illustrations of the English law of the sixteenth and seventeenth centuries. The broad general principles of the Common Law with regard to civil matters still remain unchanged. The principal alterations have taken place rather in the region of criminal than of private law, and in the procedure and tone of thought of the Courts. What we call 'Equity', too (considered as a scheme of law founded on definite principles), is mainly the growth of the later seventeenth and subsequent centuries, and in Shakespeare's time the Court of Chancery was almost as unfettered by precedent as the typical Cadi under the Palm Tree. Of chief pertinence here are those branches of law and procedure with regard to which there is a strong contrast between past and present, together with the life of the Inns of Court in Elizabethan times.

At the end of the sixteenth century the Superior Courts were much the same as they were in the latter half of the nineteenth, when, by the Judicature Acts 1873 and 1875 they were consolidated into one Supreme Court of Judicature. The High Court of Chancery was there, the Queen's Bench was there, so were the Courts of Exchequer and Common Pleas. The Judges also from time to time went on circuit, as they still do, and with much the same pomp and circumstance; Justices of the Peace then, as now, held petty and quarter sessions; and in the latter they had power of life and death. But there was also another powerful Court, hated and feared, owning no obedience to law or precedent, which has long since ceased to exist, viz. the Star Chamber. There has been much speculation as to the origin of the Star Chamber, but the best opinion seems to be that it was a remnant o£ the judicial side of the King's Council, of which the other Courts were offshoots. All the King's Courts were, and indeed still are, supposed to be emanations of the King himself as the fountain of justice; the judges being merely his delegates. This theory is alluded to both in Measure for Measure (I. i. 43), where the Duke says to Angelo:

In our remove be thou at full ourself,

and also in 2 Henry IV (V. ii. 73-9), where Chief Justice Gascoyne says:

I then did use the person of your father;
The image of his power lay then in me
And, in the administration of his law
Whiles I was busy for the commonwealth,
Your highness pleased to forget my place,
The majesty and power of law and justice,
The image of the King whom I presented.

In virtue of the King's delegated justice, suitors were entitled to appeal to the King in Parliament (whence the judicial duties of the House of Lords), or to the King in Council (now represented by the Judicial Committee of the Privy Council), or to the Keeper of the King's conscience (the Lord Chancellor), when the ordinary law afforded no adequate relief. Apparently on similar grounds there appears to have been reserved to the Council a jurisdiction over criminal or quasi-criminal matters for which the ordinary law made no adequate provision, and this jurisdiction was exercised in the Star Chamber. Its particular function was the correction of such offences as riots, slanders, and libels, or even criticisms on magistrates or great officers, cozenage or embracery (i.e. corrupting or menacing juries), bribery of officers of justice, and the like, against which the Common Law then afforded no adequate protection. It was a kind of criminal Court of Equity, limited by no settled rules, and exercising jurisdiction at the discretion of the Executive in the alleged interests of good government, much as in days not very remote the Russian Government imprisoned, transported, or executed political offenders by 'administrative order' without trial. In theory it supplemented the shortcomings of the Common Law in criminal matters, just as the Court of Chancery was supposed to supplement or control it in civil proceedings. In point of fact, however, it became the servant of a tyrannical Executive. Shakespeare was well aware (as probably were most of his contemporaries) of its peculiar jurisdiction. Thus we find in The Merry Wives (I. i. 1-7):

Shallow. Sir Hugh, persuade me not; I will make a Star-chamber matter of it; if he were twenty Sir John Falstaffs he shall not abuse Robert Shallow, esquire.
Slender. In the county of Gloster, justice of the peace, and coram.
Shallow. Ay, cousin Slender, and cust-alorum.

And again, later on (I. i. 35):

Shallow. The Council shall hear it; it is a riot.

Other contemporary authors also frequently refer to the Star Chamber. Thus Ben Jonson, in The Magnetic Lady (III. iii):

Sir, you forget
There is a Court above, of the Star Chamber,
To punish routs and riots.

And again, Barry, in Ram Alley:

I will Star Chamber you all for cozenage.

The point in all these passages is the peculiar jurisdiction of the Court.

The punishments inflicted by the Star Chamber varied from heavy fines to the pillory, ear-cropping, and branding (as in Prynne's case) or whipping, but not death. They became, however, outrageously and increasingly severe and out of all proportion to the offence; and the Court's unpopularity was probably owing partly to this and partly to its practice of interrogating the accused and hearing witnesses in camera.

In his learned and interesting work on English Legal Institutions Dr. Carter gives several amazing instances of the severity of this Court. Thus, Sir John Hollis and Sir John Wentworth were in 1615 prosecuted by Bacon, then Attorney-General, for traducing public justice. Their offence was that they went to the execution of a man named Weston, who was hanged for poisoning Sir Thomas Overbury. Wentworth merely asked Weston if he really did it; and Hollis desired him to discharge his conscience by confessing and so 'satisfying the world'. Hollis had also said when the verdict was given that if he had been on the jury he should have had his doubts. For these mild observations Sir John Hollis was fined £1,000 and Wentworth 1,000 marks (£666), and each of them got a year's imprisonment in the Tower.

In another case, a London merchant was fined £2,000 and imprisoned for six years for saying that the merchants are 'in no part of the world so screwed and wrung as in England, and that they had more encouragement in Turkey'.

The case of Prynne in 1634 completed these outrageous and vindictive punishments. For political libel he was disbarred, deprived of his degrees, ordered to be placed twice in the pillory, to have one ear cut off on each occasion, to be fined £5,000, and to be perpetually imprisoned without books, pen, ink, or paper. After this it is a relief to read the sentence on a fanatic who, objecting to pork on religious grounds, was ordered by the Star Chamber to be imprisoned and fed on nothing but pig's flesh. It is not surprising that the Star Chamber was destroyed by the Long Parliament in 1641.

The Star Chamber gained additional odium from its use of torture, which was quite illegal in the other English Courts. So late as 1614, a Somerset clergyman, Edmond Peacham, was interrogated on the rack before the Star Chamber in the presence of Coke, then Attorney-General.

Another Court that existed in Shakespeare's time was the Court of Wards and Liveries, created by two statutes of Henry VIII to deal with the estates of infant wards of the King, and also apparently with lunatics and idiots. This Court was presided over by the Lord Treasurer, who had, as his associates, the two Chief Justices, the Chief Baron, the King's Serjeant, and divers Surveyors and an Attorney of the Court. The Lord of a vassal who held by military tenure was guardian of the vassal's orphan, infant heir, or heiress without any liability to account for the profits of the infant's lands until, in the case of males, the ward attained twenty-one, or in the case of females, sixteen years. On attaining these ages the infant could 'sue out livery' on payment of half a year's profits. During the infancy the guardian had the right of marrying the ward to any one he pleased of equal rank. Wardship had become odious in Shakespeare's time, and was abolished along with military tenures by 12 Charles II, c. 24.

There is no specific mention of this Court in Shakespeare's works, but he alludes (although incorrectly) to the right of the Lord as guardian in All's Well that Ends Well, where the King of France insists upon his highborn ward Bertram marrying Helena, a poor physician's daughter, who was of inferior rank to him. [C. REFUTED] The King parades all his male wards and says:

Fair maid, send forth shine eyes: this youthful parcel
Of noble bachelors stand at my bestowing; (II. iii. 58-9)

and when Bertram, whom Helena chooses, protests, the King informs him peremptorily that

It is in us to plant thine honour where
We please to have it grow. Check thy contempt:
Obey our will, which travails in thy good. (ibid. 163-5)

Other writers of the time also mention this right. For instance, Wilkins, in his Miseries of Inforst Marriage, published in 1607, writes:

You are his Ward; being so, the law intends,
He is to have your duty, and in his rule
Is both your marriage, and your heritage;
If you rebel 'gainst these injunctions,
The penalty takes hold on you; which for himself
He straight thus prosecutes; he wastes your land,
Weds you where he thinks fit, Sir.

So in Ben Jonson's Bartholomew Fair (III. v):

Grace. Now he will marry me to his wife's brother, this wise gentleman that you see; or else I must pay the value o' my land.
Quar. 'Slid, is there no device of disparagement or so?

an allusion to the condition that the spouse must be of equal rank with the ward, which Shakespeare had ignored.

The suing of livery by the ward is frequently mentioned by Elizabethan and Jacobean writers. Thus:

Our little Cupid hath sued livery
And is no more in his Minority. (Donne, Ecl., 1613)

In Richard II the Duke of York, referring to the consequences of seizing upon the rights of 'banished Hereford', says:

If you...
Call in the letters-patent that he hath
By his attorneys-general to sue
His livery, and deny his offer'd homage,
You pluck a thousand dangers on your head.
(Rich. II, II. i. 202-6)

And again in the same play Bolingbroke is made to say:

I am denied to sue my livery here. (II. iii. 129)

Si parva licet componere magnis, another ancient Court still existing in Shakespeare's day has long become obsolete, viz. the Court Leet. It was the predecessor of the modern Police Court, and like it could present for trial or indict for all crimes, and could summarily punish trivial ones. It was shorn of much of its jurisdiction by a statute of Edward IV, and is now obsolete, except in some few manors, where it survives rather as an ancient ceremonial than as a practical court of law.

Shakespeare mentions it in Othello (III. iii. 140) thus:

Keep leets and law days, and in session sit;

and again in The Taming of the Shrew (Ind. ii. 87-89):

Yet would you say ye were beaten out of door,
And rail upon the hostess of the house,
And say you would present her at the leet,
Because she brought stone jugs and no seal'd quarts.

But probably even in Shakespeare's time the Leet was but little used.

Another obsolete Court of record which flourished in Shakespeare's time was that which bore the strange name of the Court of Pie-Poudres. It and the Court of the Clerk of the Market were incident to every market. The one decided all civil disputes arising in the market (but not in any preceding one), the owner's steward acting as Judge, and the other dealt with criminal matters, mainly questions of false weights and measures. The Court of Pie-Poudres is said by Lord Coke to have gained its name from its speedy justice, which was dispensed as fast as dust could fall from the foot. Blackstone, however, gives it a more prosaic derivation from pied puldreaux, a pedlar. This picturesque Court is not mentioned by Shakespeare, but Ben Jonson speaks of it in Bartholomew Fair (II. i), where one of the characters says, 'In whose Courts of Pie-poudres I have had the honour during the three days sometimes to sit as Judge'.

Other Courts there were not mentioned by Shakespeare. The Court of Requests (not to be confounded with the local Courts of the same name which lasted down to our times and were replaced by the modern County Courts) was a kind of relief Court of Chancery, specially devoted to dispensing Equity to poor suitors. It was in the Court of Requests that one Stephen Bellott in Easter term 1612 sued his father-in-law, Christopher Montjoy, a tiremaker, of Silver Street in the city of London, for the fulfilment of certain promises alleged to be made on the plaintiff's marriage with defendant's daughter eight years before. Shakespeare had lodged in Montjoy's house when the plaintiff Bellott, who had been Montjoy's apprentice, proposed marriage to Montjoy's daughter. The dramatist was accordingly one of Bellott's witnesses, and his signed depositions are in the Public Record Office. In the result the Court remitted the dispute to the French Huguenot Church in Threadneedle Street, of which both parties to the suit were members, and the consistory upheld Bellott's plaint, severely reprimanding Montjoy and suspending him from membership of the church. In 1598 the Common Law Courts refused to recognise the authority of the Court of Requests, but it lingered on until the Civil War, when, its legal machinery being lost, it died a natural death.

REFUTATIONS ANDS COMMENTS

COMMENT 1: This statement is an extraordinary way to open a section on Law. A close reading of what follows will show that Underhill does an extremely poor job of supporting his opening statement, which must be taken as a main theme of the essay, given its prominent placement. Notice as you read how often Underhill explores an aspect of Elizabethan law, sometimes at great length, only to finish with the statement like "But it is not mentioned by Shakespeare." Given the wealth of legal allusions in Shakespeare, and that the purpose of the book is to illuminate "Shakespeare's" England, one would think that Underhill would focus on the many occasions when Shakespeare does allude to law. But it soon becomes clear that he has an agenda to give the distinct impression that Shakespeare either knew little law or made obvious errors. Whenever Underhill attempts to give an actual example of Shakespeare's errors (rather than a mere claim), we will refute him. Indeed, we will show that in some cases he was quite aware that a clear refutation had already been made but that he chose to ignore it. back

COMMENT 2: Underhill offers no supporting evidence, but George Greenwood refutes him in a rather long passage his 1920 book Shakespeare's Law (pp. 29-33), which I will post in its entirety later this year. back

A. REFUTED: What Underhill is trying to say here is that Shakespeare uses the word "determine" in a non-legal context, as if this proves that Shakespeare's use of the word has no bearing on his legal knowledge. But the opposite is true. The point is well-made by Lord Penzance: "As manifested in the plays, this legal knowledge and learning had therefore a special character which places it on a wholly different footing from the rest of the multifarious knowledge which is exhibited in page after page of the plays. At every turn and point at which the author required a metaphor, simile, or illustration, his mind ever turned first to the law. He seems almost to have thought in legal phrases, the commonest of legal expressions were ever at the end of his pen in description or illustration." In other words, it is precisely in those examples where Shakespeare aptly uses a legal term as a metaphor, simile, or illustration in a non-legal context, that he demonstrates his deep familiarity with, and integrated understanding of, the law. back

B. REFUTED: As Peter R. Moore points out in Recent Developments in the case for Oxford as Shakespeare, Shakespeare was, of course, playing on the two meanings of the word "several", as many editions of the play will explain. Also, every Shakespeare concordance reveals that Shakespeare knew both meanings of the word. Here Underhill betrays a particular lack of appreciation for Shakespeare's propensity to play with words. Since it seems highly improbable that Underhill is unaware of the profound level of wordplay in Shakespeare in particular and Elizabethan society in general, he can properly be exposed here for force-fitting his example into his argument, to the detriment of his credibility. Cushman K. Davis points out in passage No. 47 of The Law and Shakespeare that "grant" as used by Boyet is also a legal term meaning "at common law a conveyance of incorporeal things". (Co. Litt. 9) His conclusion: "Without a thorough knowledge of the legal terms employed, Maria's repartee is absolutely meaningless." (93-94) You will note in Underhill's bibliography that he lists both Davis's book and Lord Campbell's. Therefore, he was familar with this argument, yet chose to ignore it without any real attempt to refute it. back

C. REFUTED: As succintly pointed out by George Greenwood in his 1920 book Shakespeare's Law, Underhill is guilty of either ignoring or overlooking a material passage in this scene where the King of France himself reveals his ability to enoble a common subject:

King: 'Tis only title thou disdain'st in her, the which
I can build up . . .
If thou canst like this creature as a maid
I can create the rest: virture and she
Is her dower; honour and wealth from me. (Act II Sc. 3, italics added)

Greenwood continues: 'But even if it had been otherwise; if Shakespeare had made a King of France threaten a ward with the results of his displeasure should he refuse to marry a lady whom the King desired him to marry although of inferior rank, what cogency could reasonably be attached to such an incident in a drama, as evidence of ignorance of law on the part of the dramatist? Very little indeed as it appears to me.' (p. 29) back