Shakespeare and the English equity jurisdiction: The Merchant of Venice and the two texts of King Lear

Review of English Studies

Volumn 50, Issue 200, 1999, Pages 417-439

  Sokol, B J ^a   Sokol, Mary ^a  

^a NONE

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EID: 67649534749     PISSN: 00346551     EISSN: None     Source Type: Journal    
DOI: 10.1093/res/50.200.417     Document Type: Review

References (142)

1. G. Taylor, 'The Date and Authorship of the Folio Version', in G. Taylor and M. Warren (edd.), The Division of the Kingdoms: Shakespeare's Two Versions of King Lear (Oxford, 1986), 351-468: 468
2. A. Patterson, Censorship and Interpretation: The Conditions of Writing and Reading in Early Modern England (Madison, Wis., 1984), 47
3. J. E. Martin, Hanbury and Martin: Modern Equity (London, 1997), 3
4. For the classic technical definition see F. W. Maitland, Equity: A Course of Lectures (Cambridge, 1936), 1
5. S. F. C. Milsom, Historical Foundations of the Common Law (London, 1981), 82
6. J. B. Post, 'Equitable Resorts Before 1450', in E. W. Ives and A. H. Manchester (edd.), Law, Litigants and the Legal Profession (London, 1983), 68-79: 78-9, finds medieval Chancery's equitable jurisdiction neither civilian in basis nor particularly distinctive 'in the legal character of its judgments'
7. Milsom, Historical Foundations, 83-4
8. This summary is borne out in many 16th-cent. texts: see Christopher St German [d. 1540], Doctor and Student (London, 1975), 96
9. William West, The Second Part of Symboleography ... Whereunto is annexed another Treatise of Equitie (London, 1601), 174
10. r
11. William Lambard, Archeion, or a Commentary upon the High Courts of Justice in England (London, 1635), 46-7 (the spelling of the author's name in the first edition is regularized elsewhere in this article as 'Lambarde')
12. See Eth. Nic. 1137a-1138a, in Aristotle, The Basic Works (New York, 1941), 1019-20
13. West, The Second Part of Symboleography, 175
14. William Lambarde stressed the same point in one of his 'Charges to the Jurors' quoted in W. Dunkel, 'Law and Equity in Measure for Measure', Shakespeare Quarterly, 13 (1962), 275-85: 276
15. St German, Doctor and Student, 95-9, first states that 'Equytye', which 'consideryth all the pertyculer cyrcumstaunces of the dede', 'also is temperyd with the sweetness of mercye'
16. Excessive 'mercy' was indeed a political problem. It was difficult to get Elizabethan juries (and indeed constables like Dogbery and Verges) to act against roguish offences towards which local communities were more tolerant than was central authority; see K. Wrightson, 'Two Concepts of Order: Justices, Constables and Jurymen in Seventeenth-Century England', in J. Brewer and J. Styles (edd.), An Ungovernable People: The English and their Law in the Seventeenth and Eighteenth Centuries (London, 1983), 21-46, esp. 24
17. and J. Kent, 'Attitudes of Members of the House of Commons to Regulation of Personal Conduct', University of London Bulletin of the Institute of Historical Research, 46 (1973), 41-71
18. Such dereliction on the part of local quarter sessions juries that would not bring presentments was repeatedly railed against, with threats, in the series of Lambarde's instructions to juries, printed in C. Read, William Lambarde and Local Government (Ithaca, NY, 1962)
19. v. On the complex manuscript and publication history of this work see C. H. McIlwain and P. L. Ward, Lambarde's Archeion (Cambridge, Mass., 1957), 145-76
20. On its fate due to relations between Robert Cecil and Lambarde, who was Egerton's close associate, see W. Dunkel, William Lambard, Elizabethan Jurist (New Brunswick, NJ, 1965), esp. pp. 5 and 162
21. r; see below on how Cowell's dictionary caused a scandal by its definitions of prerogative as absolute
22. Lambard, Archeion, 74; pp. 74-7 offer interesting suggestions for equity reform
23. on which see McIlwain and Ward, Lambarde's Archeion, 158-9
24. In a letter of advice to Bishop John Williams, the only churchman to be appointed Chancellor after Wolsey, modernized in Yale, Lord Nottingham's 'Manual', 78-80
25. M. MacKay, 'The Merchant of Venice: A Reflection of the Early Conflict between Courts of Law and Courts of Equity', Shakespeare Quarterly, 15 (1964), 371-5: 372, 375
26. On the play's supposed condemnation of Shylock's 'old law' and praise of 'Christian civilisation', see J. S. Colley, 'Launcelot, Jacob and Esau: Old and New Law in The Merchant of Venice', Yearbook of English Studies, 10 (1980), 181-9: 189
27. for a lauding of the 'more civilised characters' and the salvation of the 'Christian community' from 'their own Shylockean tendencies' see M. J. Hamill, 'Poetry, Law and the Pursuit of Perfection: Portia's Role in The Merchant of Venice', SEL: Studies in English Literature, 1500-1900, 18 (1978), 229-43: 232 and 241
28. More or less similar polarities are adduced in e.g. J. S. Coolidge, 'Law and Love in The Merchant of Venice', Shakespeare Quarterly, 27 (1976), 243-63
29. R. M. Levitsky, 'Shylock as Unregenerate Man', Shakespeare Quarterly, 28 (1977), 58-64
30. E. Johnson, 'Shylock's Daniel: "Justice more than thou desir'st'", CLA Journal, 35 (1991), 353-66
31. See R. Weisberg, Poethics and Other Strategies of Law and Literature (New York, 1992), 93-104
32. J. L. Halio, 'Portia: Shakespeare's Matlock?', Cardozo Studies in Law and Literature, 5 (1993), 57-64: 60 and 62
33. J. O. Holmer, The Merchant of Venice: Choice, Hazard, and Consequence (Houndsmill, 1995), 232-3
34. D. Yaffe, Shylock and the Jewish Question (London, 1997), passim
35. Similar points were made in C. Slights's study of Jessica, 'In Defense of Jessica: The Runaway Daughter in the Merchant of Venice', Shakespeare Quarterly, 31 (1980), 357-68: 359
36. A. Hamilton, 'The End of Law', Cardozo Studies in Law and Literature, 5 (1993), 125-36: 128 n. 12, explicitly agrees with Halio, 'Portia: Shakespeare's Matlock?', 60, on the Old Testament enjoining mercy, yet acknowledges (p. 132), a view that a commitment to the old law is 'deadening'; she again qualifies this on p. 133
37. Errors in MacKay, 'The Merchant of Venice', including the equating of equity with mercy or pardon, a mistaken notion that English Chancellors in Shakespeare's time were churchmen, and other legal-historical faults, are identified in E. F. J. Tucker, 'The Letter of the Law in The Merchant of Venice', Shakespeare Studies, 29 (1976), 93-101
38. F. Pollock, 'A Note on Shylock v. Antonio', Law Quarterly Review, 30 (1914), 175-7: 175
39. in reply to J. Hirshfield, 'Portia's Judgment and German Jurisprudence', Law Quarterly Review, 30 (1914), 167-74, says, parenthetically, 'There is no question of equity in any technical sense'
40. F. L. Windolph, Reflections of the Law in Literature (Philadelphia, Pa., 1956), 55
41. A. T. Denning, Leaves from My Library: An English Anthology (London, 1986), 30, makes a slightly ambiguous statement that Portia applies strict construction and 'has rejected any plea for mercy or relief in equity'
42. B. J. Sokol, 'The Merchant of Venice and the Law Merchant', Renaissance Studies, 6 (1992), 60-7
43. Holmer, The Merchant of Venice, 212-13, 327-9
44. R. S. White, Natural Law in English Renaissance Literature (Cambridge, 1996), 164
45. R. Wilson, 'The Quality of Mercy: Discipline and Punishment in Shakespeare', The Seventeenth Century, 5 (1990), 1-42: 15
46. S. A. Cohen, '"The quality of mercy": Law, Equity, and Ideology in The Merchant of Venice', Mosaic, 27 (1994), 35-54: 37, 36, 39, 52
47. J. Levin, 'The Measure of Law and Equity: Tolerance in Shakespeare's Vienna', in B. L. Rockwood (ed.), Law and Literature Perspectives (New York, 1996), 193-207: 193
48. This point is noted at the end of Dunkel, 'Law and Equity in Measure for Measure', which, however, seems to equate Egerton's equity jurisdiction of Chancery with the administration of clemency (pp. 275-7)
49. White, Natural Law in English Renaissance Literature, 181-2, offers a cogent argument against theories of 'mercy' as equity in the play
50. for a delineation of several definitions. D. E. C. Yale's introduction to Edward Hake, Epiekeia: A Dialogue on Equity in Three Parts (London, 1953), pp. xiii-xxix, carefully analyses and critiques theoretical distinctions used in definitions. This comments, for example, that Hake was unconcerned 'with the antithesis of rights in rem and in personam which has so unnecessarily vexed later authors on equity jurisprudence' (p. xv), and in a note to this states: 'The whole controversy really goes to show that jurisprudence may analyse the law but only legal history explains it'
51. L. Wilson, 'Hamlet: Equity, Intention, Performance', Studies in the Literary Imagination, 24 (1991), 91-113:96
52. J. Altman, The Tudor Play of Mind (Berkeley, Calif., 1978), esp. pp. 67, 169; this book (p. 390), suggests the sort of 'equity' it discusses is only 'virtually' a kind of law
53. Hutson, '"Our old storehouse": Plowden's Commentaries and Political Consciousness in Shakespeare', in P. Davidhazi and H. Klein (edd.), Shakespeare Yearbook 7 (Lewistown, NY, 1996), 249-73
54. and L. Hutson, The Usurer's Daughter: Male Friendship and Fictions of Women in Sixteenth-Century England (London, 1994), allege more direct connections of similar matters with English legal history
55. See Knafia, Law and Politics in Jacobean England, 117. These bills are described in more detail below
56. Just possibly such conflict is implied in the wrangling over the use of Star Chamber for 'riot' in WIV 1. 1. 1-35. Such allegations were often fictional means to extend jurisdiction: see W. B. Willcox, 'Lawyers and Litigants in Stuart England', Cornell Law Quarterly, 24 (1939), 533-58: 536
57. T. G. Barnes, 'Star Chamber and the Sophistication of the Criminal Law', Criminal Law Review (1977), 316-26: 319
58. G. W. Keeton, Shakespeare's Legal and Political Background (London, 1967), 31, points out that this passage 'uses the very words of the Statute of Praemunire [16 Rich. II, C.5.], but, of course, Shakespeare would find these words in any account of the fall of Wolsey'
59. C. E. Phelps, Falstaff and Equity: An Interpretation (Cambridge, Mass., 1901) holds that Falstaff's quip 'no equity stirring' is an allusion to the 'war between the [common law and equity] courts' by way of a topical 'gag' (repeated on pp. 6, 26, 71, 87, 89)
60. See E. G. Henderson, 'Relief from Bonds in English Chancery', American Journal of Legal History, 18 (1974), 298-306
61. J. H. Baker, An Introduction to English Legal History (London, 1990), 370-1
62. e.g. W. N. Knight, 'Equity, The Merchant of Venice
63. and William Lambarde', Shakespeare Survey, 27 (1974), 93-104: 98-103
64. A. Firenze, Love's Usury: Love and Greed in the Anti-Semitic World of Shakespeare's Merchant of Venice (New York and London, 1989), pp. vii-viii
65. The documents of this dispute are partly reproduced in E. K. Chambers, William Shakespeare: A Study of Facts and Problems (Oxford, 1930), ii. 35-41
66. and translated in Phelps, Falstaff and Equity, 157-70
67. It is alleged to have influenced Measure for Measure in J. W. Dickinson, 'Renaissance Equity in Measure for Measure', Shakespeare Quarterly, 13 (1962), 287-97: 292, which also equates Seneca's clementia, which is 'not Christian mercy but merely a rational mercy', with 'equity', whereby courts may pardon offenders (pp. 288-9)
68. H. Berry, 'Shylock, Robert Miles, and Events at the Theatre', Shakespeare Quarterly, 44 (1993), 183-201, suggests that Shakespeare may have known about a roughly contemporary Chancery action over a bond involving some theatre proprietors, but it is not made clear how this lawsuit could have inspired the trial in The Merchant of Venice, where no equitable relief is sought
69. These debates are summarized in O. H. Phillips, Shakespeare and the Lawyers (London, 1972), 91-118
70. G. W. Keeton, Shakespeare and his Legal Problems (London, 1930), 18, 19
71. R. A. Posner, Law and Literature: A Misunderstood Relation (Cambridge, Mass., and London, 1988), 94. It is hard to agree that Shakespeare was disabled from expressing a theme of equity in The Merchant of Venice because of the demands of plot. For, when he chose to touch on contentious matters, he characteristically made good use of apparent artistic constraints to cover his tracks
72. Weisberg, Poethics and Other Strategies, 207-10
73. Posner, Law and Literature, 97
74. W. M. Merchant, 'Lawyer and Actor: Process of Law in Elizabethan Drama', English Studies Today, 3 (1964), 107-24: 123
75. The scandal is further articulated in T. Ziolkowski, The Mirror of Justice (Princeton, NJ, 1997), 175-82, within a chapter (pp. 163-83) which adduces the familiar law versus equity theme in The Merchant of Venice (indeed relying on Andrews), but unusually concludes that the play portrays 'an irresponsible equity'
76. For instances spanning our century see Pollock, 'A Note on Shylock v. Antonio', and W. C. Jordan, 'Approaches to the Court Scene in the Bond Story: Equity and Mercy or Reason and Nature', Shakespeare Quarterly, 33 (1982), 49-59: 58
77. In a half-hearted suggestion in a note in Pollock, 'A Note on Shylock v. Antonio', 176
78. H. Saunders, 'Staple Courts in The Merchant of Venice', Notes and Queries, 31 (1984), 190-1
79. Andrews, Law versus Equity in 'The Merchant of Venice', 49, mentions this jurisdiction. In the 16th cent, it had particular authority in cases where foreign trade was involved, but was also increasingly adjudicating domestic cases
80. Sokol, 'The Merchant of Venice and the Law Merchant'. This takes account of the fact that these tribunals in decline may not ever have been very active
81. See T. F. T. Plucknett, A Concise History of the Common Law (Boston, Mass., 1956), 663
82. Glanville's Case Cro. Jac. 344
83. For Ellesmere's views and three remarkable letters of comment by Francis Bacon see S. E. Thorne, 'Praemunire and Sir Edward Coke', Huntington Library Quarterly, 2 (1938), 85-7
84. and Francis Bacon, Works (London, 1872-), xii. 246-54, respectively
85. See also H. J. Berman, 'The Origins of Historical Jurisprudence: Coke, Selden, Hale', Yale Law Review, 103 (1994), 1651-738: 1685
86. and J. H. Baker, 'The Common Lawyers and the Chancery: 1616', Irish Jurist, 4 (1969), 368-92: 374
87. See W. Holdsworth, A History of English Law (London, 1903-), v. 438-40
88. Baker, An Introduction to English Legal History, 122-6
89. Berman, 'The Origins of Historical Jurisprudence', 1675
90. See G. W. Thomas, 'James I, Equity and Lord Keeper John Williams', English Historical Review, 91 (1976), 506-28: 508
91. Baker, 'The Common Lawyers and the Chancery', 369
92. J. P. Dawson, 'Coke and Ellesmere Disinterred: The Attack on the Chancery in 1616', Illinois Law Review, 36 (1941), 127-52: 128
93. By Circumspecte Agatis 1285 and Articuli Cleri 1315
94. Dawson, 'Coke and Ellesmere Disinterred', 128
95. id., The Reports of Sir John Spellman (London, 1978), 77
96. Baker, The Reports of Sir John Spellman, 41
97. W. J. Jones, The Elizabethan Court of Chancery (Oxford, 1967), 467
98. More recent research indicating a late date for the development of the equitable jurisdiction of Chancery is very well reviewed in J. A. Guy, 'The Development of Equitable Jurisdictions, 1450-1550', in Ives and Manchester (edd.), Law, Litigants and the Legal Profession, 80-6
99. Knafla, Law and Politics in Jacobean England, 105-6
100. See Willcox, 'Lawyers and Litigants in Stuart England'; P. Clark and P. Slack, English Towns in Transition 1500-1700 (Oxford, 1976), 83
101. J. H. Baker, 'Law and Legal Institutions', in J. F. Andrews (ed.), William Shakespeare: His World, his Work, his Influence (New York, 1985), 41-54: 41
102. W. R. Prest, The Rise of the Barristers: A Social History of the English Bar 1590-1640 (Oxford, 1986), 5-6
103. Baker, The Reports of Sir John Spellman, 51-83
104. See Jones, The Elizabethan Court of Chancery, 78-87
105. Dawson, 'Coke and Ellesmere Disinterred', 128-9
106. See the advisory opinion in 12 Coke Rep. 50. For a discussion of these events see Dawson, 'Coke and Ellesmere Disinterred', 129-30
107. For a full discussion of Coke's interventions against perceived encroachments of equity against the common law see C. Gray, 'The Boundaries of Equitable Function', American Journal of Legal History, 20 (1976), 192-226
108. C. H. McIlwain, The Political Works of James I (Cambridge, Mass., 1918), p. xxxv
109. See Coke's 'A Reading on 27 Edward the First ...', consisting of twenty-seven 'Reading[s] on Fines', in Edward Coke, 'A Reading on 27 Edward the First [or 27] Reading[s] on Fines', in Three Law Tracts (London, 1764), 211-78:222-6
110. See K. Sharpe and C. Brooks, 'History, English Law and the Renaissance', Past & Present, 72 (1976), 133-42
111. and Berman, 'The Origins of Historical Jurisprudence', 1680 and passim
112. Many common lawyers attended Oxford and Cambridge and studied the civil law before going to the Inns of Court. See Sharpe and Brooks, 'History, English Law and the Renaissance', 137
113. Berman, 'The Origins of Historical Jurisprudence', 1659
114. Berman,'The Origins of Historical Jurisprudence', 1689
115. See I. Ward, 'The Political Context of Shakespeare's Constitutionalism', in Klein and Davidhazi (edd.), Shakespeare Yearbook 7, 275-90: 275-83
116. Gray, 'Reason, Authority and Imagination: The Jurisprudence of Sir Edward Coke', in P. Zagorin (ed.), Culture and Politics from Puritanism to the Enlightenment (Berkeley, Calif., 1980), 25-66
117. Berman, 'The Origins of Historical Jurisprudence'
118. Berman, 'The Origins of Historical Jurisprudence', 1670
119. McIlwain, The Political Works of James I, 312
120. For an account of the Cowell affair see J. Simon, 'Dr. Cowell', Cambridge Law Journal, 26 (1968), 260-72
121. Simon, 'Dr. Cowell', 267
122. Proclamation on 'D. Cowels booke', in J. F. Larkin and P. L. Hughes, Stuart Royal Proclamations (Oxford, 1973), i. 243-5. In 1615 the civilians took humorous revenge by entertaining the king when he visited Cambridge with a play, Ignoramus, which mocked the common lawyers for their ignorance and crude use of Latin. The leading actor mimicked the voice and dress of Coke. The king enjoyed the entertainment so much he saw the play a second time, but Coke was said to have reacted with perhaps understandable bitterness
123. Coke's and the other versions are given and discussed in R. G. Usher, 'James I and Sir Edward Coke', English Historical Review, 18 (1903), 664-75. See 12 Coke Rep. 65
124. Usher, 'James I and Sir Edward Coke', 664
125. See also C. D. Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke 1552-1634 (London, 1957), 261-4
126. Here Circumspecte Agatis 1285 and Articuli Cleri 1315
127. W. M. T. Nowottny, 'Some Aspects of the Style of King Lear', Shakespeare Survey, 13 (1960), 49-57
128. Taylor, 'Monopolies, Show Trial, Disaster, and Invasion'
129. Taylor, 'Monopolies, Show Trial, Disaster, and Invasion'; R. Warren, 'The Date and Authorship of the Folio Version', in Taylor and Warren (edd.), The Division of the Kingdoms, 45-57
130. K. Muir, Shakespeare: Contrasts and Controversies (Brighton, 1985), 51-66, concluding 'vandals' damaged the play 'fatally' by cutting it
131. Patterson, Censorship and Interpretation, 58-73
132. Warren, 'The Date and Authorship of the Folio Version', passim; Muir, Shakespeare: Contrasts and Controversies, 57
133. On this see Merchant, 'Lawyer and Actor', 121-3
134. Bellamy, The Tudor Law of Treason, 123-4, explains that this instance presents the single case where detailed information still exists about the selection of a special commission for a state trial: the Lords were grouped in such a way that a chain of selected commissioners of particular rank selected others of lower rank
135. See B. J. Sokol and M. Sokol, 'The Tempest and Legal Justification of Plantation in Virginia', in Klein and Davidhazi (edd.), Shakespeare Yearbook 7, 353-80
136. This is the view set in the context of legal events of 1587 and 1591 in S. E. Thorne's preface to Edward Hake, Epiekeia: A Dialogue on Equity in Three Parts (London, 1953), pp. xi-xii
137. The view is strongly emphasized throughout Jones, The Elizabethan Court of Chancery. It is further set in context in Yale, Lord Nottingham's 'Manual', 10-11
138. echoed in Tucker, 'The Letter of the Law in The Merchant of Venice', and specifically discussed in relation to the Admiralty jurisdiction in L. M. Hill, Bench and Bureaucracy: The Public Career of Sir Julius Caesar 1580-1636 (Stanford, Calif., 1988), 40-53
139. See E. W. Ives, 'The Law and the Lawyers', Shakespeare Survey, 17 (1964), 73-86: 75-6
140. Minimizing the disparity between law and equity is the main thrust of all three dialogues of Hake, Epiekeia, an edition of BM Add. MS 35326. This manuscript was completed by 1603, probably mainly written somewhat earlier, and never published. In the preface to this edition (p. xii) D. E. C. Yale supposes that Hake 'perhaps hoped to minimize the differences between the two kinds of justice and bring about the kind of reconciliation Sir Thomas More had urged'
141. See A. P. Slater, Shakespeare the Director (Brighton, 1982), 49-62
142. Leslie, 'The Dialogue between Bodies and Souls: Pictures and Poesy in the English Renaissance', Word and Image, 1 (1985), 17-30: 177-9