LEGAL PROCEDURE

Although the Courts of Chancery, King's Bench, Common Pleas, and Exchequer, survived to the latter part of the nineteenth century, when, by the Judicature Acts,

The Courts that were manifold dwindled
To divers divisions of one,

yet the contrast between the procedure and the tone of those Courts in Shakespeare's day and ours is profound. Their procedure and atmosphere were pedantic, unyielding, even puerile. The respect paid to forms and fictions, and the verbal quibbles solemnly discussed without regard to the obvious reality of things, suggest to a modern mind that the whole administration of justice was regarded as an elaborate intellectual game in the course of which justice itself was entirely lost sight of. The very language of the profession was a mysterious jargon compounded of Latin, French, and English, calculated to prevent any but the initiated from having the least notion of what was meant. For instance, we read of refined but futile distinctions between 'writs of entry sur disseisin in the per, in the post, in the per and cui, and in the quibus', distinctions which we may be quite sure had but little relation to 'the merits'. The use of French and Latin in the actual proceedings had, it is true, long been forbidden by statute; nevertheless, the Records were kept in Latin, and the Reports still continued to be written in Norman French, much as physicians still veil their prescriptions in Latin. But it had become a doggerel language, and some of the reports of that date furnish amusing instances of the unfamiliarity of the reporter with the tongue as an instrument of thought. The Law reporters, who were a highly conservative class of men, strongly opposed the substitution of English. Thomas Style, in the Preface to his Reports in the year 1658, excuses himself for writing them in English in the following quaint words:

I have been always and yet am of opinion, that that part of the Common Law which is in English hath only occasioned the making of unquiet spirits contentiously knowing, and more apt to offend others than to defend themselves. I have done it in obedience to authority and to stop the mouths of such of this English age, who, though they be confessedly different in their minds and judgements, as the builders of Babel were in their language, yet do think it vain if not impious to speak or understand more than their own mother tongue.

Even now a few words and phrases survive in common use, such as 'semble', 'aliter', 'quia timet', 'in fieri', 'cestui que trust', 'alibi', &c., and all the old prerogative writs retain their Latin names, e.g. 'mandamus', 'certiorari', and 'quo warranto'.

Trial by battle still survived, and was occasionally resorted to with regard to the title to land, or in cases of felony, or in the Court of Chivalry. But it was evidently dying out, as there seems to be no recorded instance of it between 13th Elizabeth and 1639. It remained, however, part of our law so late as 1819, when it was abolished by 59 George III, c. 46.

But perhaps the most interesting item of procedure of those days was the different manner in which an action for the same cause had to be commenced according as it was in the King's Bench, the Common Pleas, or the Exchequer. The Common Pleas was from the time of Magna Charta settled at Westminster to do justice between subject and subject. For some time its jurisdiction was limited to certain fixed causes of action, for each of which a specific writ was issued. If the facts of a case could not be brought within one of these writs, there was no remedy. This of course led to frequent denials of justice, and by 1 Edward I, c. 24, a new writ was ordered to be issued in any case which could not be met by the old fixed forms. Actions commenced by these new writs became known as actions of 'trespass on the case' (or, shortly, 'actions on the case'), because the special facts of each case were stated in a writ framed as near as possible by analogy to the old writ of trespass. There was an immense amount of 'lean and wasteful learning' expended on the distinction between trespass and trespass on the case, which lasted down to our own time, and even now fine distinctions are sometimes traceable to the question whether a wrong would formerly have been remediable by 'trespass' or 'case'.

The King's Bench, however, had originally no general jurisdiction as between subject and subject, but only between King and subject. As, however, the judges in those early days were paid by suitors' fees, they had every inducement to widen their jurisdiction, and this they did in a most ingenious but disingenuous way. Having original jurisdiction over all trespasses committed in the county in which the Court was held, as being breaches of the King's peace, the Judges invented the theory that once a man got within the jurisdiction for trespass committed in that county the Court could also deal with all other wrongs which he had committed against any of the King's subjects. It accordingly became the regular procedure in the King's Bench to issue a writ directing the Sheriff of Middlesex to arrest the defendant to answer a fictitious trespass committed there, and also to answer whatever the true cause of action might be. This writ was called a Bill of Middlesex, and the clause stating the true cause of action was called the ac etiam clause. If, as frequently happened, the defendant was not in Middlesex, the Sheriff made return that he was not to be found there. Thereupon a fresh writ, called a latitat, was issued to the Sheriff of the County where the defendant resided, setting forth the issue of the Bill of Middlesex, and stating that 'it is sufficiently attested that the aforesaid William lurks (latitat) and runs about in your county', and the writ then commanded the Sheriff to arrest him. It thus came about that civil actions in the King's Bench were commenced by Bill of Middlesex, followed, if necessary, by a writ of latitat, and in either case by the arrest of the defendant, who had to give bail for his appearance. This roundabout process, strange as it may seem, lasted for centuries, until it was abolished by the Common Law Procedure Act, 1854. It is frequently alluded to by Shakespeare and his contemporaries. Thus in The Comedy of Errors (IV. ii. 41-3):

Adriana. Why, man, what is the matter ?
Dromio of S. I do not know the matter: he is 'rested on the case.
Adriana. What, is he arrested ? tell me at whose suit.

And again, in Webster's Cure for a Cuckold (IV. i):

Pettifog. The defendant was arrested first by latitat, in an action for trespass.
Compass. And a lawyer told me it should have been an action of the case.

And in Jonson's Magnetic Lady (V. iii):

Sue him at Common Law;
Arrest him on an action of choke-bail,
Five hundred thousand pound; it will affright him
And all his sureties.

And in Massinger's Fatal Dowry (I. ii):

He was arrested, and for want of bail
Imprisoned at their suit.

The Court of Exchequer, whose jurisdiction was originally confined to cases affecting the revenue, usurped jurisdiction in civil actions by a similar fiction, viz. that by reason of the defendant's wrongful conduct the plaintiff was less able to pay his taxes. This was called a writ of quo minus, and also lasted down to the middle of the last century. This usurpation is all the more singular as, down to the time of Elizabeth, the Exchequer judges were not trained lawyers, but promoted clerks, and the Court was scarcely accounted a superior Court, nor were its judges accorded equality with those of the King's Bench and Common Pleas. In Elizabeth's reign, however, Serjeant Shute was appointed a Baron of the Exchequer with the same rank as the judges of the other Courts, and thenceforward serjeants only were appointed with the like rank.

This make-believe tone of the Courts was carried into the consideration of questions of fact or intention, the most puerile distinctions being made where no sane person could have had the least doubt of the truth. It is impossible, for instance, to imagine the businesslike judges of to-day taking such extraordinarily fine, not to say childish, distinctions as the following: It was held slander to say of an Attorney that 'he hath no more law than Master Cheyney's Bull even though Master Cheyney hath no Bull, for in that case the scandal is greater' (1 Siderfin's Reports, 327). On the other hand, to say that 'he hath as much law as a monkey' was not slanderous, because 'he hath as much law and more also' (1 March, pl. 93; 1 Rolle, Ab. 58). It is scarcely surprising after this to find the sapient reporter in one case thoughtfully adding 'quaere whether it be not actionable to say an attorney hath no more law than the man in the moon' (1 Siderfin, 424).

This topsy-turvy tone of mind is also apparent in the judgements in the leading case of Manby v. Scott, decided in 1602, where Wyndham J., discussing the question whether a husband should be bound by his wife's contracts, thus describes the fancied dangers:

The husband will be accounted the common enemy, and the mercer and the gallant will unite with the wife, and they will combine their strength against the husband. Wives will be their own carvers and, like hawks, will fly abroad and find their own prey (1 Siderfin, 109).

Shakespeare parodied the quibbling prevarications which infested all legal argument when he made the First Gravedigger in Hamlet (V. i. 15 seq.) discourse on the legal meaning of suicide:

First Clown. Here lies the water: good; here stands the man: good; if the man go to this water, and drown himself, it is, will he, nill he, he goes; mark you that? but if the water come to him, and drown him, he drowns not himself: argal, he that is not guilty of his own death shortens not his own life
Second Clown. But is this law?
First Clown. Ay, marry, is 't; crowner's quest law.

There is little doubt that Shakespeare here had in mind the argument concerning the suicide by drowning of Sir James Hales, which was used in the case Hales v. Petite in 1561, and is fully reported in Plowden's Reports: 'As Sir James Hales, being alive, caused Sir James Hales to die, therefore the act of the living man was the death of the dead man, for which the living man must be punished.' The legal argument of the Gravedigger is no more obvious a 'reductio ad absurdum'.

The technicalities of the written pleadings, too, were monstrous. As an instance one may take the report of a case decided in 1651. [Usley's Case (Clayton's Reports, 50).]

Trespass. Plaintiff declares that the defendant did break his close and eat his grass etc cum averiis suis to wit oxen sheep hogs avibus anglice turkies. And the judge did hold that turkies are not comprised within the general word averia which is an old law word, and these fowls came but lately into England. And upon this it was directed to sever the damages; for otherwise, if the damages be joyntly given, and it be ill for this of the turkies, for the reason above-said, it will overthrow all the verdict.

With justice stifled by these formal futilities it is not surprising to find the Court of Chancery stepping in as a Court of Equity to set matters right. It could not interfere directly by reversing the decisions of the Common Law Courts, but it effected the same object by granting an injunction prohibiting a plaintiff who had obtained judgement from proceeding to enforce it, on pain of imprisonment for contempt. This gave great offence to the Common Law judges, and the granting of these injunctions by Wolsey was one of the chief charges against him. In Shakespeare's time, however, this battle was fought to a finish. At first the Common Law Courts had the better of it, for by an Act of 27 Elizabeth it was made a praemunire to apply to other jurisdictions to impeach or impede the execution of judgements given in the King's Courts. The Chancellors seem to have ignored this; but the matter came to a head in 1616 in the historical encounter between Lord Chief Justice Coke and Lord Chancellor Ellesmere, the latter of whom issued an injunction perpetually restraining a plaintiff who had obtained a judgement in the King's Bench under circumstances of gross fraud. Thereupon the King's Bench preferred indictments against everybody concerned -- counsel, solicitors, and suitors -- for a praemunire for daring to question in the Chancery a judgement of the King's Bench. The matter was so serious that the King himself stepped in and supported the Chancellor, and thenceforth the power of the Court of Chancery to issue injunctions against proceedings at Common Law was never questioned until it was finally abolished by the Judicature Act, 1873, by which every branch of the High Court was enabled to give equitable as well as legal relief. Curiously enough no allusion to this distinctive process of the old Court of Chancery occurs in Shakespeare's writings. [COMMENT 3] Perhaps it was too burning a question to be safely touched on. Donne, however, refers to it in his Second Satire:

I have been
In love e'er since tricesimo of the Queen.
Continual claims I have made, injunctions got
To stay my rivals suit, that he should not Proceed.

And Jonson, in An Execration upon Vulcan, says:

Lies there no writ out of the Chancery
Against this Vulcan ? No injunction,
No order, no decree ? Though we be gone
At Common Law, methinks in his despite
A Court of Equity should do us right.

The foundation of the Chancery jurisdiction was in personam, and the peculiarity of its procedure was that it got at the truth by putting searching interrogatories to the defendant himself, which he had to answer on oath, and by clapping him in prison if he disobeyed the Chancellor's orders. This power of interrogating a defendant (which was quite contrary to the spirit of the Common Law) became known as 'scraping the conscience', and was a most effective, although often a costly and dilatory, process. Shakespeare refers to interrogatories of this kind in The Merchant of Venice (V. i. 300-3):

Let it be so: the first interrogatory
That my Nerissa shall be sworn on is,
Whether till the next night she had rather stay
Or go to bed now, being two hours of day.

The main Chancery work of Elizabethan days was founded on fraud or on the unconscientious enforcement of strict legal rights. The law now administered by the Chancery Division was practically non-existent. The law of trusts, for instance, as we know it, was the work of Lord Chancellor Nottingham (1673-82). But for the following passage, Shakespeare gives no hint that he knew of the existence of Courts of Equity as distinguished from Courts of Law [D. REFUTED]:

Thou robed man of justice, take thy place;
And thou, his yoke-fellow of equity,
Bench by his side. (Lear III. vi. 39-41)

Of the aspect of the Law Courts in Shakespeare's day, much information survives. First, then, with regard to the building in which they were held, the Common Law Courts and the Court of Chancery were not, as now, held in separate chambers, but in different parts of Westminster Hall, and this practice continued till late in the reign of the Georges. [An old print, showing the interior of the Hall with several of the Courts actually sitting, is reproduced in the late Mr. Inderwick's interesting little book, The King's Peace.]

Next, as to the costume of the judges and counsel. It is not perhaps generally known that the present wig and sombre black gown date only from the funeral of Queen Anne. As the late Chief Baron Pollock is said to have remarked, the Bar then went into mourning, and has never gone out of it again. In Elizabeth's time the costumes were much more picturesque. Counsel below the rank of serjeant wore no head-gear. The ancient order of Serjeants at Law, which was abolished some quarter of a century ago, answered in the sixteenth century to the present K.C.'s. They wore a head-dress of white taffeta (somewhat similar in shape to the ordinary barrister's wig), called 'the coif ', the origin of which is lost in extreme antiquity. Over the coif (when not actually engaged in a cause) the serjeant, and apparently the judge when actually sitting on the bench, usually wore a black velvet or silk skull-cap of the same shape, but slightly smaller, so as to leave the white coif showing as an edging or border. When, after another century, wigs became general, the judges and other serjeants had small round holes cut in the top of their wigs, through which the coif was supposed to be seen; but in reality there was a small black patch edged with white inserted to cover the hole and suggest the coif.

With regard to robes, those of the judges were not very different from those used by the King's Bench judges at the present day, the colour varying according to the days of the calendar from scarlet to violet, and the lining according to the season from silk to minever.

The serjeants' robes were similar, viz. a robe somewhat like a modern dressing-gown, with a small cape just covering the shoulders, over which was a hood, similar to but not so full or long as the ordinary academic hood, and in front 'two white labels' (now the white bands or tabs worn by all counsel). The colour of the robes seems to have been left much to fancy, but in Shakespeare's time, and for some centuries before, they were parti-coloured -- the right-hand side one colour, and the left another. There is in the Inner Temple Library a very interesting illumination of the four Courts in the time of Henry VI, showing the serjeants in parti-coloured robes of blue and green, with white coifs. In the painting of the Court of Wards and Liveries, done in the reign of Elizabeth, and now the property of the Duke of Richmond and Gordon at Goodwood, the serjeants who are pleading wear parti-coloured robes. In an address delivered to some newly-created serjeants in the thirty-sixth year of Elizabeth's reign the Lord Chief Justice said, 'by the parti-coloured garments being both of deep colours, and such as the judges themselves in ancient times used (for so we receive it by tradition), is signified soundness and depth of judgement, an ability to discerne of causes, what colour soever be cast over them, and under or with what vail or shadow soever they be disguised'. Fortescue, writing in the fifteenth century, describes the serjeant's robe as parti-coloured, and differentiates it from that of a judge, partly by that fact, and also (in his quaint language) by the fact that the judge's cape is furred with minever, 'whereas the serjeant's is ever furred with lamb'.

The Elizabethan costume of counsel who were not serjeants is extremely obscure. That they wore a gown of some sort seems certain from the records of the four Inns of Court, the Benchers of which were very particular as to the wearing of gowns, even in ordinary life. Moreover, Webster, writing in the early part of the seventeenth century, says, 'My forehead has more crumples in it than the back part of a Counsellor's gown'; [Westward How, II. i.] which is suggestive of the numerous pleats in the present gown of a junior barrister. What the colour was seems very questionable, but it was probably sombre, as the wearing of gowns of a 'sad colour' by members of the Bar was enjoined by Philip and Mary; and, by an order of the judges in the time of Elizabeth, no fellow of any of the Inns of Court was to go into the city or suburbs' otherwise than in his gown, according to the ancient usage of the gentlemen of. the Inns of Court'. By the same order, the wearing of 'swords and bucklers and great ruffs and silk and fur' was forbidden.

However, if the Bar has changed its dress, it still retains that old spirit of comradeship which so annoyed Mr. Pickwick, and which Shakespeare has immortalized in The Taming of the Shrew (I. ii. 281-2):

And do as adversaries do in law,
Strive mightily, but eat and drink as friends.

It will be seen from the above sketch that the appearance of the Courts in Shakespeare's day must have differed widely from that which they present nowadays. To realize the full extent of the change one has but to go into Westminster Hall, and divide it up mentally into three open Courts, somewhat like the stalls of a modern fancy fair, and people them with judges in scarlet or purple, with the black and white coif, serjeants in parti-coloured robes of blue and green pleading in their white coifs, and junior counsel bareheaded in sad-coloured robes; while lookers-on, in all the varied costumes in which that age delighted, wandered from Court to Court.

REFUTATIONS ANDS COMMENTS

COMMENT 3: This statement is a rather curious one for Underhill to offer (if that's what he's doing) in support of his proposition that Shakespeare lacked a profound understanding of law. back

D. REFUTED: This statement by Underhill reveals a remarkable willingness to commit an unscholarly logical fallacy, that of Arguing from the End ("I already know the result, so I will interpret the evidence accordingly.") Underhill attempts to transform supportive evidence into contrary evidence by implying strongly that a single instance where Shakespeare demonstrates a knowledge of the distinguished existence of the Courts of Equity reveals his lack of such knowledge. Peter R. Moore succinctly refutes Underhill in Recent Developments in the case for Oxford as Shakespeare by pointing out that "We might as well say that, but for one remark in 1 Henry IV (I. iii. 60-62), we have no idea that Shakespeare knew that saltpeter is used in the making of gunpowder." Moore further reveals that the probable reason why Underhill makes such a statement (and which also probably explains the general tone of the entire essay) is because in 1916 Baconian writings were popular, and Underhill was attempting to deflate the notion that Francis Bacon authored the plays by indirectly hinting that since Bacon was a specialist in equity and had become Lord Chancellor -- the head of equity -- that if he were the author, references to equity and the Courts of Equity would be, in fact, more likely. back