“GOWNED VULTURES": ANTI-LEGAL ATTITUDES ' m EUZABETHAN-JACOBEAN LITERATURE Dissertation for the Degree of Ph. D. MICHiGAN STATE UNIVERSITY THOMAS FRANCIS O'CONNOR 1974 07539 9 LIBRARY ' . This is to certify that the thesis entitled "GOWNED VULTURES”: ANTI-LMAL ATTITUDES IN ELIZABETHfiN-JAOOBEAN LITERATURE presented by Thomas Francis O'Connor has been accepted towards fulfillment of the requirements for pho 4. egree in English , l W Major professor . 1' ' - x . L/ <4 '31.“ N L a arm a £341va— a ABSTRACT "GOWNED VULTURES'I ANTI-LEGAL ATTITUDES IN ELIZABETHAN-JACOBEAN LITERATURE 3? Thomas Francis O'Connor Elizabethans rued that they lived in the most litigious age ever, and they saw the lawyer as the chief cause and beneficiary of that litigiousness-a man who set peOple at odds so that he could collect fees from any resulting law cases. Whatever the validity of that charge, the lawyer became the butt of a surprisingly large body of satire and invective. This study is concerned, primarily, with that body of literature and with attacks on the entire legal profession and legal system. The study covers two major areas: the legal and the literary. The legal section of the thesis does two things. It provides a history of the courts, of their procedures, and of the legal profession in order to put the charges against the lawyer and the Judicial system, a system drasti- cally altered by the law reforms of the nineteenth century, in their Elizabethan-Jacobean context. It also provides an introduction to the legal and economic problems of the times which invited, if not encouraged, legal chicanery. Mass land transfers, caused by the dissolution of the monasteries and changing social patterns, occurred at a time when the land law was in chaos and when deeds and boundaries were easily altered. The result was a lawyer's paradise. / : ‘l . " -\~ I" / J The to the 1: vealth, r and eenax 759! m people °f Bobbie ittackg a the lawye But 1 levy". l terlstlc ‘ the Conner mth, 8U}: 30cm re of that id proStitute \C\¢/ Thomas Francis O'Connor (A) ' L007 ' The literary section concerns the reactions of writers to the litigiousness and to the rise of lawyers in numbers, wealth, and prestige. The writers attack the legal tricks and semantic hairsplitting used by the lawyer to win cases. They attack the lawyer's technical education which produces people who are steeped in legal precedent but who are devoid of sophistication, classical learning, and morality. Such attacks are aimed at the actual practices and character of the lawyer. But writers level more general charges against the lawyer. He is shown to be insatiably avaricious, a charac- teristic which causes him to think only of himself and not the common good. As such he is a danger to the commonwealth which, supposedly, operates best under a system of mutual social responsibilities; and he is representative of a new way of life, of an individualism which strikes at the heart of that ideal commonwealth. The lawyer is presented as a prostitute willing to sell his talent for his monetary gain and social rise, thereby upsetting the established stratified society. These themes are coupled with another, that of the Golden Age. Elizabeth's coming to the throne was heralded as the dawn of a new'Golden Age and she as the new Astraea, goddess of Justice and ruler of harmonious men. However, the very presence of lawyers indicates the Golden Age of ideal Justice and harmony no longer exists, and the writers use the lawyer as representative of a degenerate age. Thomas Francis O'Connor Finally, this study traces many of the Renaissance charges and literary themes associated with the lawyer through the literature of the liddle Ages. Medieval liter- ature does not ignore the lawyer; and Langland, Chaucer, and Gower have similar attitudes toward the lawyer and the English legal system as do Lodge, Dekker, and Shakespeare. ”GO'NED VUDTURES”: ANTI-LEGALtATTITUDES IN ELIZABETHAN-JACOBEAN LITERATURE 5! Thomas Francis O'Connor A DISSERTATION Submitted to Iichigan State university in partial fulfillment of the requirements ‘ for the degree of DOCTOR OF PhILOSOPHY Department of English 1974 @Oopyright by THOMAS IRANCIS O'CONNOR 1974 l u echelerlj text, In 01 the t and Prof tor the 1 An ’0? her ACKNOILEDGIENTS I am grateful to Professor Lawrence Babb for his scholarly and critical advice, his close reading of the text, and his encouragement along the way to the completion of the thesis. I also want to thank Professor Harry Hoppe and Professor James Pickering for reading the thesis and for their comments and suggestions, especially on style. An inexpressible debt of thanks is due my wife, Nancy, for her patience, encouragement, and suggestions. iii II. III, IV. Int A I Hi! Sea In No 81 I. II. III. IV. V. TABLE OF CONTENTS Introduction A Legal Labyrinth: The Growth of the Courts, the Procedures, and the Profession Lawyers in a Litigious Age Servants of flammon Lawyers: Alchemists in a Golden Age Anti-Legal Satire in the kiddie Ages Notes Bibliography iv 48 77 129 172 193 246 INTRODUCTION Kill all the lawyers: I; Henr ,‘ll The reformer and the lawyer are natural antagonists, and it should come as a surprise to no one that the legal profession is and has been for centuries a favorite target for satirists, social protestors, and revolutionaries. In literature, such diverse writers as Petronius, Langland, Shakespeare, Pope, Melville, Dickens, Tolstoy, and Kafka, separated though they were by time, geography, political interests, and social outlook, brought their talents to bear on the shortcomings of the legal profession and legal machinery of their ages. The English took particular relish in heaping abuse on men of the coif: and Dickens, though the most noted of anti-legalists, was but one of a host of English writers, spanning centuries and including the famous and anonymous, who branded the lawyer as an upstart, a social climber bent on amassing a fortune to the detriment of his batters, the poor, and the very structure of society. The flood tide of English anti-legal satire occurred in Elizabethan-Jacobean times when Englishmen ruefully admitted that they were in the midst of the most litigious age ever. Attacks on lawyers had become so common by 1601 INTRODUCTION Kill all the lawyers: [I Hear , 11 The reformer and the lawyer are natural antagonists, and it should come as a surprise to no one that the legal profession is and has been for centuries a favorite target for satirists, social protestors, and revolutionaries. In literature, such diverse writers as Petronius, Langland, Shakespeare, Pope, Nelville, Dickens, Tolstoy, and Kafka, separated though they were by time, geography, political interests, and social outlook, brought their talents to bear on the shortcomings of the legal profession and legal machinery of their ages. The English took particular relish in heaping abuse on men of the coif: and Dickens, though the most noted of anti-legalists, was but one of a host of English writers, spanning centuries and including the famous and anonymous, who branded the lawyer as an upstart, a social climber bent on amassing a fortune to the detriment of his batters, the poor, and the very structure of society. The flood tide of English anti-legal satire occurred in Elizabethan-Jacobean times when Englishmen ruefully admitted that they were in the midst of the most litigious age ever. Attacks on lawyers had become so common by 1601 that Jo.. above 0 we ltwer h Rmme'a Dmthe ottlclal there :3 did not '3 Mta; Heston, Fletche, and Mars °bJECts Lodge. 1 “N 13‘ 2 that John Day, in an attempt to raise his latest creation above ordinary hack work, announced that his play, The Isle gf_Gulls, would contain neither the stock character of a lawyer nor any timeworn attacks on the law.1 But, in 1612, Thomas Heywood admitted that actors continued to be vitu- perative and often personal in their attacks on government officials in general and lawyers in particular.2 Indeed, there was hardly an Elisabethan or Jacobean playwright who did not satirize the law or the legal profession or use both as metaphors for avarice, corruption, and social decay. Preston, Whetstone, Shakespeare, Jonson, Beaumont and Fletcher, Chapman, Webster, Middleton, Dekker, Massinger, and Iarston all paraded lawyers across their stages as objects of ridicule. In prose, Dekker, Greene, Gascoigne, Lodge, Nashe, and Barnaby Rich nipped at the heels of way- ward lawyers more interested in plundering their clients than balancing the scales of Justice. Between 1579 and 1628, there were at least twenty-five character books pub- lished containing attacks on such people as “wicked magistrates,” ”covetous lawyer,” ”a Janus-headed lawyer," ”the hypocritical lawyer,” and ”a meere pettifogger."3 In poetry, Donne, himself once a student at an Inn of Court, devoted one of his few satires to a lawyer: and Jonson and Sir John Davies kept up a small but steady volley against legal figures in their epigrams and short poems. Despite Day's aloofness from the fray, most Elizabethan-Jacobean ‘writers sallied after lawyers with a vehemence so great that 3 it raises the question why so much satire was aimed at a single group. The purpose of the present study is to answer that question, to show why the Elizabethan-Jacobean lawyer and the entire legal system were regarded with such universal abhorrence. The particular accusations against the lawyer follow him from his birth, through his training and prac- tice, to the grave. He comes from a poor economic and low social background: and his driving passions are for wealth, social prestige, and a country estate, usually bilked from a naive client. No principle stands in the way of achieving his goals. His god is commodity and his patron saint “Lady Pecunia,“ the direct descendant of Lady Heed and Sir Penny of Middle Ages' notoriety. Far from being the agent of im- partial Justice, he skillfully manipulates court machinery for his own economic ends. Not only does he engage in ”quillets and quiddities,” the verbal Juggling and legal hair-splitting still feared in lawyers, but he descends to outright bribery, forgery, perJury, and, if need be, physi- cal force to win his case. He is, too, a professional troublemaker, scouring the countryside for legal technicali- ties in order to pit neighbor against neighbor for his own benefit or devising legal means by which a landlord could rack and break his tenants. In contrast to his Machiavel- lian cunning, however, the lawyer is often seen as an intellectual lout-the speaker of a crude and esoteric language, law-French: the debaser of Latin, language of culture and e clally poetrv enough, he is things, a pan the lawyer '1 land and de. 318 llachiaveu 30111 order a n economic rise . social Order, 18' defltined 1 The char, Jacobean Eng}: attacks “at, late and tree It hind the t . wee °'9r1app legal ”at“ Won 0! the atomic Cir-c Chap," 111 w \ 4 culture and erudition: and an enemy to all the arts, espe- cially poetry. As if these characteristics were not damning enough, he is also accused of being a usurer and, of all things, a pander. (A peculiar but persistent theme connects the lawyer with sex.) In short, he encompasses the most feared and despised traits of the Elizabethan-Jacobean era. His Hachiavellian amorality make him a symbol of a corrupt moral order and a debauched citizenry, while his social and economic rise frighten a peOple who lament the decay of one social order, the feudal, and fear the anarchic individual- ism destined to replace it. The charges directed against lawyers in Elizabethan- Jacobean England are multilevel: and a study of these attacks must, out of practical necessity, arbitrarily iso- late and treat them individually: but it must also be kept in mind that they often operate simultaneously, thus causing some overlapping of material. Chapter I will review the legal system (or chaos) of Renaissance England and the edu- cation of the lawyer: Chapter II will deal with social and economic circumstances which encouraged legal chicanery: Chapter III with the image of the lawyer in Renaissance English literature as a corrupt character of insatiable greed: Chapter IV with the lawyer as a sower of disharmony in what could and should be an ideal commonwealth and as representative of the fallen nature of man and the degener- ate state of the world: and, finally, Chapter v will place Elizabethan-Jacobean anti-legal satire against the background of This exa. Partly till t has been left failure t betveen t 01 the 11 "Id the h There ya; no I d’mmtieg" ( m1“. They '1th those 8t‘ that "re 8001 the httleIIe 5 background of earlier attacks on the legal profession. This examination of the lawyer in literature will partly fill the vacuum which, as one historian has noted, has been left by modern scholars': failure to perceive the close and organic connection between the social, economic, and political malaise of the fifteenth, sixteenth, and seventeenth centuries, and the hoary but sinewy deformities of the English legal system.4 There was no “failure to perceive” the “hoary but sinewy deformities” of English law by the writers of those cen- turies. They saw and attacked the deformities, and it is with those attacks that this study is concerned, attacks that were soon to leave the stage and the printed page for the battlefields of the English Civil War. To understand the writers' comments on lawyers, a knowledge of the organization, development, and training of the legal profession is first necessary, especially because the profession differs so much from today's. The same is true also of the court system in which the lawyers worked, a system drastically overhauled by the law reforms of the nineteenth century. cmnmr A LEGAL LABYRINTH: THE GROWTH OF THE COURTS, THE PROCEDURES, AND THE PROFESSION To speak of an ”English legal system" before the nine- teenth century is to speak in metaphor, for there was no system, at least not one which could be plotted on an organizational chart showing a hierarchy of courts with interlocking Jurisdictions and courts of appeal. Instead, England was pockmarked by countless courts, Judicial fief- doms, competing with each other for cases and each unwilling to admit that any other court had greater power than its own. The result was a vast and complicated configuration of courts, each with its own bureaucracy, its own intricate procedures, and its own system of patronage and sinecures. The wonder is not that the courts worked well but that they worked at all. In and around Westminster, alone, sat nine different courts, not including the Privy Council: Parliament (which only occasionally functioned as a court), Chancery, King's Bench, Conan Pleas, Star Chamber, Requests, Exchequer, Wards and Livery, and the Palatine Court of Lancaster.1 Elsewhere in London and throughout the realm, sat the courts 01 Admiralty, Arches, the Council of the North, the Council In the Harches of Wales, the Quarter Sessions, the Assizes, 6 and the Palat historian, Hz: "1138'! Court That number (1 (With Bore. “WP (Leet ierchant Court does it incluc 3° “a! court: a” Enfllishnal the bar. But the Inch fro. the they '9“ not ilineal, 38th t10n3.4 In 00m, °f the ”med Nth c lhlhlgtEred 7 and the Palatine Courts of Chester and Durham. The legal historian, Harold Potter, lists a total of twenty-eight ”King's Courts” sitting in Elizabethan-Jacobean times.2 That number does not include a host of “Local Courts" (County, Borough, Hundred, and Sheriff's Tourn), ”Seignorial Courts” (Leet, Customary, Baron, and Honour), and "Local Ierchant Courts“ (Piepoudre, Borough, and Staple).3 Nor does it include a myriad of ecclesiastical courts. With so many courts dotting the landscape, it is unlikely that any Englishman passed his life without once standing before the bar. But the complexity of this situation derived not so much from the vast number of courts as from the fact that they were not arranged in a hierarchy of importance or appeal. Rather, they operated as little fiefdoms, actively and openly striving for and maintaining separate Jurisdic- tions.4 In London, for example, sat the five most prominent courts of the land: Exchequer, Admiralty, King's Bench, common Pleas, and Chancery. Exchequer was primarily con- cerned with cases involving royal revenue. Admiralty, which administered Civil or Roman Law, had "Jurisdiction in commerical cases, particularly those in which foreign merchants were concerned, and where the cause of action had arisen outside England.'5 King's Bench and Common Pleas both administered common Law, the former in cases between sovereign and subJect and the latter between subJect and subject. Chancery, a court of equity, was used mostly to mitigate what James I called "the rigour and extremity of our 1m' (1. There we 0! equity Ind not denying c it to me: vi“ “like the Q 'hich me is: these court; 1 "0 COIIOh L“ “kitted the ”Junction to Judge: 'OUId r Babes: COR)“a ‘ 8 our laws” (1..., the Common Law).6 There was particular competition between the courts of equity and common law. The Common Law Courts, though not denying Chancery's right to exist, wanted to ”restrict it to cases which were not triable at Common Law, and also to make the Common Law Courts immune from inJunctions,“7 which were issued solely out of Chancery. The battle of these courts reached such a ridiculous stage that in 1483 two common Law Judges "agreed that if the Chancellor committed the plaintiffs to prison for failing to obey an inJunction to cease their proceedings at Common Law, the Judges would release them on an application by writ of Habeas corpus."8 Sir Edward Coke, the champion of the Common Law, continued the argument against Chancery's use of the inJunction in 1615, contending that Chancery had no Jurisdiction in a case already Judged at Common Law. He was overruled by James, who said that the Chancellor could intervene “at any stage of the proceedings,"9 thus giving Chancery a temporary victory in the battle of the courts. The rivalry for Jurisdiction involved other courts as well. King's Bench and Common Pleas haggled over whether a case was between subJect and subJect or subJect and sovereign. The King's Bench argued that, though a litigation involved an altercation between subJect and subJect, if that altercation broke the ”King's peace” (a protean phrase) the litigation rightfully belonged in its rolls. Exchequer sniffed out all litigation over money in order to bring those cases under its purview on the grounds that a citizen who had lost none Coke, It the Court ior can originlting o ihinlty, ve 013. lary 19 under the Jar "It On vithi alil’tiinted two the Great Seal Slootn1y. “for omission" “Petition to u lag to “an eye on "tempt. The Open 1 ”Met, 0, c: n: that Ooh" “I Judges. 8“ 9 had lost money was ”less able" (guominus) to pay the King. 10 cake, at the head of Common Pleas, challenged the Admiralty Court for cases on the fantastic legal fiction that actions originating outside England, which should have been heard in Admiralty, were described as having happened “in the parish of S. flary le Bow in the Ward of Cheap"11 and, thus, came under the Jurisdiction of Common Pleas. The struggle even went on within the same court, as was the case when Elizabeth appointed two commissions to replace the deceased Keeper of the Great Seal. But the stream of Justice still did not run smoothly, “for there were disputes between the two sets of Commissioners respecting Jurisdiction and fees."12 This competition for cases existed in all courts, with each one vying to expand its own Jurisdiction while keeping a sharp eye on attempted encroachments by other courts. The open hostility and competition among the courts had a variety of causes. The primary reason for the disputes was that court officials were paid from court fees. Also, the Judges, among others, held the patronage for court positions: and a drop in a court's business and importance meant a corresponding drop in the value of the patronage. The courts, too, provided sinecures for courtiers, places which brought money to the courtier and also to the sovereign who dealt out the sinecures. The offices themselves were received as land grants with the expectation that each owner Iould prosper as he tilled his office. There were other than economic reasons, however, for the court contention. Legal theory played a role as did the social and political {melork in means, the tions Ind it the field to 10 framework in which the courts were set. For all these reasons, the courts battled among themselves for Jurisdic- tions and fees. and, when the situation arose, they took to the field to oppose the sovereign himself. Law court officials, from Judge to “keeper of the wax,” were all paid partly, if not entirely, from court 1993.13 For example, Sir Edward Coke, as Chief Justice of Common Pleas, was paid an annual salary of £141 13s. 4d.14 Yet, he amassed enough wealth to own ”upwards of sixty manors' and “land, tenements, and avowdsons' all worth more than £100,000.15 In the 1580s, the laster of Rolls in Chancery received annual payment of £34 18s. plus £16 14s. for ”livery and wine.” However, Gerard, haster for most of the 1580s, averaged more than £1,100 per annum, with his highest take of £1,599 5s. 3d. in 1586. Julius Caesar, his successon estimated his profits, too optimistically it turned out, ”at the rosy figure of £2,380 per annual."16 Lord Burghley was said, by a “panegyrist' no less, to have grown rich as flaster of the Court of wards, ”and ofttimes gratified his friends and servants that depended and waited on him” with gratuities from the same court.17 His son, Robert Cecil, while still Secretary of State, kept the two legal offices of Chancellor of the Duchy of Lancaster and laster of the court of wards, "a unique combination of offices” giving his power, patronage and profit.18 Nicholas Bacon, while laster of Wards, managed to put £500 a year into land,19 though his annual salary was 051! £90.20 The Lord Keeper of the Great Seal received £919 per um in office it on The die; “9 mm m? concouitlnt 1} into benefitsj court omen:j W “Wired these feet, 3 0“11m om Mug “8!. °’ the fees Involving ipp lino: 01““. Judge.ofe Grant ‘98:: 11 per annum in fees and annuities, yet Elizabethans valued the office at over £3,000 a year.21 The disparity between salary and gross income was made up partly from court fees. Every step in a lawsuit carried concomitant fees with it, fees that were not poured back into benefits for the community but into the pockets of_ court officials. Each document to be composed, each signa- ture required, each procedural hurdle had its price. From these fees, Judges supplemented their incomes, and ”a host of minor officials who received no salary"22 eked out a living wage. For example, the following is a partial list of the fees paid in the Court of Common Pleas in cases involving apprentices breaking their bonds. (The fees of minor officials are not included.) Judges'fees-- Granting of license to compound on a penal law . 2/- Assessing King's part of forfeiture on a penal statute after composition with the informer e e e e e e e e e e e e e e e a e e 2/- To the Judges' Clerk- . For entering in his book license to compound 03 C 903.1 1" e e e e e e e e e e e e e e e 6d. ’bf entering Kllfl'l P'ft e e e e e e e e e e e a 5d. Fees of Protonotaries- Por declarations in actions of debt Late.) . . . 2/- for every sheet over three . . . . . . . . . 8d. 33", Of information 0! penal 1" e e e e e e e 2/- for every sheet over three . . . . . . . . . 8d. Entry of license of Court to compound on DOB-1 It‘tutC. e e e e a e e e e e e e e e e 2/- Entry of writs, continuances gate.) . . . . . . 2/- tees of Protonotaries and their C erks, touching informations only-- Entry of information and signing of subpoena 031’ e e e e e e e e e e e e e e e e e e e e 2/8 Signing of any other process . . . . . . . . . . 1/4 Ingrossing every information, to clerk . . . . . 8d. Capy of information if of five sheets of p‘p‘f or 1..., t. CICTk s e e e e e e e e e 3" if over five sheets, per sh. . . . . . . . . 8d. r7 Iakir Enter 1 Regi Fees < Atto M officer consequently, "Windy was Though of the 11‘3mm: t° Protect ‘21 tile Oat inju "’9" until . held that the “r. mid! t1 Much.“ Th1 feel to con: “riled 't b 12 flaking copies for fine on an information . . . 6d. Entering general issue on the roll where information was first entered, to clerk . 8d.” Registering license to compound in office-book, t0 clerk e e e e e e e e e e e e e e e e e 4de Fees to rilazers-- For every copias, alias, [etc.] . . . . . ll- lttorney's fees- ' , 3 ‘ Per 3.030 per term e e e e e e e e e e e a 6/82 Each officer of the court was paid for the work he didl‘ consequently, the more cases brought to a court, the more everybody was paid. . Though Cbmmon Law Courts often attacked Chancery's use of the inJunction (see above p. 8), they willingly used it to protect their courts' fees. Common Pleas could, and did, take out inJunctions against King's Bench, staying suits there until the suitors paid fees to Cbmmon Pleas, which held that the cases belonged in its court. Ihen the fees were paid, the cases were allowed to continue in King's Bench.24 Thus the bewildered suitor found himself paying fees to courts in which he had never been, and Justice was arrived at by piecework.25 Tar those high in the Judiciary, there was another source of income from their offices--namely, patronage. The Judges held title to most of the positions in their courts, and anyone seeking a Job had to pay for it: the Jobs held by attorneys and clerks in Tudor-Stuart courts represented a source of income to greater men. A Iaster of the Rolls would get his cut from the fees taken by Chancery clerks. He would also expect to get a sizable sum for appointing a new clerk, and this sum would be influenced by the amount of fees previously taken and likely to be taken in the future. A Lord Chancellor, a Iaster of the Rolls, and a great number of dignitaries of law and government, had a very direct interest in the earning capacity of comparatively lowly official. Idainist equally The sort flo needed to n Ion Rhona; letter of 15 °’ lo [the 1: business '1“ the Judges . Other IOVeS the sale '1 of “Mg, 1 encted 13. mien} a Thong Nicks“); periods, ‘ (01-. the ‘ “d ”011 Beth“ 1 tions to l3 officials. in awareness of fees permeated the entire administrative structure, and it followed that men were equally aware of the work which produced fees.26 The more flourishing the court, the more officials were needed to staff it: and, naturally, more officials meant more patronage and profit for the Judges. John Cook, in a letter of 1655, complained that Judges had increased ”to 20 or 40 [the number of] Offices and Places in Court” for the business which ”3 or 4 Honest Clerks might do”: ”for where the Judges take fees, the Love of interest overcomes all other loves,” he lamented.27 An admirer of Burghley, perhaps the same 'panegyrist' who spoke of the profit in the Court of lards, forebore ”to mention the great and unusual fees exacted lately by reason of buying and selling offices, both Judicial and ministerial. . . .'28 Though exact figures for Judicial patronage in the Tudor-Stuart era are unavailable, the figures for later periods, which were arrived at by Commissions set up to re- form the Judiciary, give some idea as to the extent, power, and profit that patronage brought to a Judge's office. Between 1740 and 1815, King's Bench had 43 different posi- tions to be filled, though the actual number of Jobs was' much greatereas, for example, there would be more than one clerk occupying the position of clerkship.29 During the same period, Chancery had 60 poeitione.3° in 1325, the chief Judges of the land held the following offices in their ”gift”: Lord Chancellor, 65 offices (not all court offices- some were for commissions): Hester of the Rolls, 22; Chief Justice ling Clerk: of Ou' Nilhd't Ch‘ him of the outright '3’] offices, plug Ml Pleas The pro in 1810, Ha b7 deputy. h h“ eleven 1 (1113'. Belle] for the .1, the ““81 1h t“ 2011, (>the Paid Plug . 3313 VOTE, ‘1“ held the p: 14 Justice King's Bench, 13 plus 'Filazers, Exigenters, and Clerks of Outlawries for all the Cities and Counties of England”: Chief Justice Common Pleas, 65a and Lord Chief Baron of the Exchequer, 10.31 Some offices were considered outright ”saleable.” in 1810, King's Bench had 11 such offices, plus all the Clerks of Kiel Prius Courts while common Pleas had 14 offices, plus all the Filacers.32 The profits from such offices were substantial. Again in 1810, King's Bench had nine offices whose work was done by deputy, not by the holder of the office. Common Pleas had eleven such offices. The combined salaries for the nine King's Bench positions came to £15,000 19 3, and £4,406 10 5 for the eleven in Common Pleas. But the deputies, who did the actual work of the offices, were paid only £1,356 13 0 in the former and £739 0 1 in the latter.33 Thus a single office paid an annual salary to a deputy who did its work, plus a salary to the person who owned the office but did no work. also the office owner had to pay a Judge, or whoever held the patronage, for the office in the first place. The deputy, of course, was expected to supplement his income from the fees inherent in his office, fees from which the Judges took a slice.3‘ Just how much the Judges charged for these offices is unknown, but their going price must have been substantial as the profits from the offices amounted to over £17,300 annually according to the above figures. These figures belong to a time much later than the Thdor-Btuart era and cannot be directly applied to that era since, in all probability, the number of court offices increased 01 applicable, the fonhla ratio of pro his lfterlif: the profit t - 310 con iron the lucr the Mereigz fact, a, Pro: sector of To The off“:e 0 01 the ntte liner "Wm ”harem, ‘ Holland "en, Bench and C a mat Of mheque, a timers he the c°urt c 15 increased over the years. Relatively, however, they are applicable, especially when we hear of an Elizabethan giving ' the formula by which office profits were computed: the ratio of profits was governed by where a man wanted to spend 35--the higher his afterlife, in Heaven, Purgatory, or Hell the profit the lower the soul's resting place. But court officials were not the only ones to benefit from the lucrative business of the courts: courtiers and the sovereign himself siphoned off part of the profits. In fact, as Professor Stone says, the law courts were “the last sector of royal revenues to be exploited by the courtiers.“36 The office of Custos Brevium in Common Pleas was, by the end of the fifteenth century, "being granted by the Crown to minor favourites for life and in reversion, and was apparently worth £60 or £70 a year.“37 in 1613, the Earl of Holland ”enJoyed the profit of the seal of office in King's Bench and Common Pleas,” and Lord Norley attempted to garner ”a grant of the Crown share of fines in actions in the Exchequer and King's Bench on penal statutes.“38 Sir George Villiers had a pension of £1,000 a year from the revenues of the Court of Wards.39 Courtiers not only reaped profits from law court sinecures, but also demanded and received estates of men accused of but not yet convicted for crimes, the grantee having to arrange for prosecution and to hope for conviction. a development so obviously open to abuse was soon checked, at any rate in theory, but the grant of felons' goods continue in 1609, the Earl 1632. S or other The Earl Earl of inglesea 1633, an This p r‘e'lmtahle, e1 In court; fl cynically 9“ Win '3 But‘fo‘, 398': Rohfltl l The 1 mm“! at 16 . continued. Lord Knollys obtained the estate of a fence in 1609, the Earl of Holderness of a murderer in 1614, the Earl of Holland the goods of a suicide . . . in 1632. Star Chamber fines, whether of fallen politicians or others, offered similar opportunities of reward. The Earl of Holderness was given £7,000 (out of the Earl of Suffolk's fine) in 1618, the future Earl of Anglesea £2,000 in 1621, the Earl of Suffolk, £4,000 in 1633, and the Earl of Huntingdon £3,000 in 1639.40 This practice was odious enough: but there were less reputable, at any rate less acceptable, ways of milking the law courts for courtiers' pocket money. As Ben Jonson cynically puts it: Elg¥%y rob'd Duncote of three hundred pound wa was tane, arraign'd, condemn'd to dye: But or this money was a courtier found, Beg'd Ridwa es pardons Duncote, now, doth cryei Rob'd both of money, and the Iawes relief, The courtier is become the greater thiefe.41 John lynn's lawyer echoes the same idea, repeating what had become an aphorismi ”Hr. Wynn, I am wearied to see the tumbling and tossing of law and conscience, for both are ended, as the proverb is, as a man is befriended.”42 Law court fees and profits went into the pockets of .clerks, Judges, and courtiers. They also proved profitable to the sovereign, both indirectly and directly. if Judges controlled offices in their courts, the Crown controlled the Judgeshipsi and it is highly unlikely, given the “civil- service system” of the time, that a Judge was appointed on ability alone. Lord Chancellor Ellesmere, for example, “contributed” an annual ”New Yeare's Tyde” gift of £40 ”unto the offices of his Ia[Jesties] household”: to the ”servants of the skullsry,” “the locksmith,“ “the sweeper,” etc.43 Beyond these gifts, the Crown also had its share of law court “twat of creditors lliuhtth, a 1 “1th of) 1! thes' human”! |1Xteenth anc J'OObeah cc,“: “to their 9 Official In it M“ the u “’1! 11' "One ‘h 0 W S bout 1‘ C01 u “9 no Nutty-3 O ‘E‘iln. J8 81)- Ednrc Qbk. rm Mg hold 17 court patronage, which proliferated according to the number of creditors to and favorites of the Crown.44 lary, Elizabeth, and James were all guilty of trying to create new sinecure offices in the courts.45 if these offices brought in revenues, they also brought headaches—-soma of the great constitutional debates of the sixteenth and seventeenth centuries. Elizabethan and Jacobean courts stood their ground against royal encroachments into their patronage. On learning of the death of a high official in Common Pleas, Elizabeth proposed a replacement at mine the next morning, only to find that Judge Anderson, an early riser when necessary, ”had given the place and sworne an officer before eight a clock."46 In the famous Cavendish E223, Elizabeth had appointed Cavendish to a new post in common Pleas. But the Judges refused to admit him on the grounds that the new post would ”disseise existing officers of their freeholds,'47 and Elizabeth was frustrated again. ‘James fought with Bruce, Easter of the Rolls,48 and Sir Edward cake over their patronage. James finally removed cake from King's Bench, after he had earlier been eased out of 00-011 Pleas, partly because Coke refused to relinquish his hold oa_a choice office, the chief clerkship, valued at £4,000, an office James wished turned over to Somerset.“9 Cbke's successor was required to sign a statement giving the profit from the sale of the clerkship to Buckingham- Somerset had fallen by then-u-before James let the new Judge sit on the bench.50 ‘The debates resulting from the Crown's incursions into Judicial preserves gave rise to some 'high-eouhdi .. their intrih themed part 01 revenue, officials of into ta. ind feet Irieihg ml receive the "tron, “mused . 18 “high-sounding constitutional doctrines,” which, whatever their intrinsic validity, protected the Judiciary from royal poachers.51 ‘ The hostility and competition of the courts, then, stemmed partly from the fact that the courts were sources of revenue, besides being courts of Justice. The minor . officials of the courts actively strove to bring business into the individual courts because they were paid from the fees arising out of that business. The higher officials not only received a portion of those fees, but they also held the patronage for the lower positions. Thus Judges encouraged the industry of their infariors, an industrious- ness which increased the Judges' pay and the value of their patronage. The more work a court did, the more money a clerk could make, and that, in turn, meant the more money a Judge could charge for the clerk's position. Consequently, the courts battled amongst themselves to enlarge their own Jurisdictions, which enlargement brought a corresponding rise in their power and profit. But to say that the profit motive was the only barrier to a smoothly working court system is to underestimate the integrity and intelligence of individuals and to minimize the coercive power of rigid institutions. Had the law courts evolved in Darwinian fashion, many dinosaurian offices and sinecures would have passed into extinction. But common Law’proved more powerful than Nature's, and legal precedent overroda natural selection. Offices, once created, were almost impossible to dissolve, primarily because #7 owe“ me tact,” but The Nan] it created h '3“ refer. . mm,“ Ve decay ‘3 the “thing”. “mom;- I M has“. he! the 111‘ am" to e 19 offices were not let out by the nodern concept of con- tract,52 but by the medieval concept of land,53 a plot to be tilled and developed by the industry of the tenant. This concept was sore than a netaphor: it was a way of life. To oust an officeholder was as difficult as to oust a land- holder from his land, as Elizabeth found out in Cavendish'g 9323. There the Judges answered Elizabeth in land-law terms: she could not appoint Cavendish because his appoint- ment would 'disseise existing officers of their freeholds.~54 The result of viewing offices as freeholds was twofold: it created an inefficient and expensive bureaucracy, and it made reform of that bureaucracy alnost inpossible. Court positions were exempted fron a natural cycle of growth and decay as they became ossified in legal procedure and machinery. If a position were established to serve a particular need, that position remained even when the need had passed. Early in the growth of the courts, because few knew the intricacies of legal procedure, the courts hired clerks to expedite and properly channel cases. However, as the volume of court cases grew, the clerks could not adequately handle the work, so deputy clerks were hired. Ihen the volume of work exceeded their abilities, lawyers (more particularly attorneys and solicitors) began to do the work of the clerks. What was needed was a revamping of the court bureaucracy to expedite trials and to lower fees, now collected by the lawyer, the deputy-clerk, and the court clerk. Yet the clerks remained in office partly because legal precedent required that cases go through their hands, and also bec‘ mm, deep tori. Such a rife with te atim but centuries, d. Puritan Revel. "tomthh ( Witiong “ ire. 7'0 at! m “0 tin. Science 0! t. There ' ‘ntunhg t com, “d 1 ‘Vrit We ‘ ma 101' th- difficult, 20 and also because of the difficulty of ousting than from office, despite the fact that others oculd and did do their work. Such a “system,“ ensnared in its own bureaucracy and rife with fees, patronage, and sinecures, was ripe for satires but these conditions prevailed for another two centuries, despite the satiric attacks and despite the Puritan hevolution, which had as one of its chief alas the reformation of England's legal norasa.55 However, these conditions were not the only ones raising the satirist's ire. Two other general areas of specific attacks were, to use the title of one historian's book, ”The Iysterious Science of the Law” and the long delays in obtaining Justice. There were three naJor processes in a legal case, all mystifying to a layman. acquiring a particular writ to start a case in motion, bringing the case to a particular court, and the pleading of that case in court. Acquiring a writ was no problem. One sinply went to Chancery and paid for the writ or, if poor, received it free. The difficulty arose in knowing what writ to buy, for the writ not Only started the case but often determined what court would hear the case, what legal procedure was to be used, how the case was to be pleaded, and what Justice the plaintiff would receive. a selection of the wrong writ at the beginning of a case would Jeopardixe the entire case no matter how’Just the cause. To understand the difficulty in selecting the right writ, one must know something of the history of writs. A highly teles than used t to m that called . ." Price) Order; II the lord t com “99% on the lei-11 Nag. 21 . highly telescoped version of what happened is this. Norman kings used their royal courts as a check on the power of their feudal barons.56 Control of a court neant two things, power and profit: and the Norman kings set out to acquire as much of both as they could. One method of acquiring then was to offer a litigant in a baron's feudal court the option of buying fron the king an order requiring the local sheriff to see that that order was carried out.57 The order was called a “writ.” a writ was also available (again, for a price) ordering a feudal lord to do "Justice” to a litigant in the lord's court. If the lord failed to do so, the royal court stepped in.58 The king's courts thus acquired Juris- diction on the grounds that, if the centents of a writ were not carried out, the king's connand had been broken and not on the merits of or legal problems involved in the original case. Two things should be noted about writs. One, they were not a ”right”-originally none were offered free, not even to the poor-but a purchasable power. As laitland puts its ”the litigant dOes not exactly buy the king's Justice, but he buys the king's aid.'59 Thus, early in English legal history, royal court hearings were considered a purchasable commodity, not the absolute right of every citizen. Also, the write did not contain general legal principles but were specific orders concerning specific cases (see exanple in n.57, above). The importance of that last fact will be shown shortly. —'———¥ The car did not go those conce centered on mely aakin their jurigd the In“. Ca “tack; On I. In!“ the Ch: ”“50“ the 4 Em“ 1‘s r1 ”mature en E" ‘Bked t, mm cm“ 22 The centralization of Justice in the king's courts did not go unheeded or unchecked by his feudal vassals and those concerned with making law, and their counterattack centered on the royal writs which were ”in fact unobtru- sively making new law” and “depriving Seignorial Courts of their Jurisdiction."60 The barons' revolt, which ended in the lagna Carts, was one of a series of thirteenth century attacks On royal prerogatives and writs. A demand of 1244 was incorporated into the Provisions of Oxford of 1258 ”that the Chancellor should be sworn to issue no more writs without the consent of the Councils“ and, by the end of Edward l's reign, ”the series of royal commands came to.a premature end."61 The fledgling courts, by these acts, were asked to function with a series of writs (originally royal commands designed to settle particular issues and not to propound general legal maxins) which had become stereo- typed.62 'Ihere there was no writ there was no remedy at Cbmmon Law until one was provided by statute, which was seldom."63 This stunting of the new procedures was an important fact in the development of the Common Law and in the subJects' later hostile reaction to it. The development of common Law and the centralization of Justice would have come to an abrupt end if it had not been for the ingenuity of the Judges in creating fictions whereby new cases could be cramped into old write. The vast maJority of original writs were concerned with rights in land and the incidents of tenure. is trade increased, almost incredible ingenuity was exercised to make them applicable to other classes of litigation, but the difficulties of adapting a highly developed and intriwl mied u not that 311064 Perhaps the ' also the com This was a before the k plaintitt'g '11! (b? to (mntfl & Miles, Th “Hut“! '3 m& (“and the real p“: Mia 80 to "8 'neged % Clan! 23 . intricate, but prematurely fixed, land law to the varied needs of commerce are obvious. It is surprising not t at it was done well but that it could be done at all.6 .Perhaps the best example to show not only the ingenuity but also the competitiveness of the courts is that of Trespass.65 This was a papular writ because it brought the ensuing case before the king's courts. The writ alleged that the plaintiff's land, body, or goods had been trespassed Ii 33 2£2£2 (by force and arms), thus breaking the king's peace (contra 22222 Domini 33513) and creating a case for rOyal Justice. The writ, however, was too restrictive: and a plaintiff was eventually allowed (c. 1400) to add an as. £££2!.("3“d also”) clause to the writ. This clause set down the real purpose of the litigation. If B owed a money, A would go to Chancery and buy a Writ of Trespass in which it was alleged that 8 had trespassed upon A's lands. in fig gtigg clause would be attached to the writ stating that B falso owed A money. 8 would be brought to trial for Trespass, but that charge was quietly dropped and action on debt would proceed. Having moved his case under royal Jurisdiction, the plaintiff next had to determine which royal Common Law Court would hear the case. On the surface, the case patently be- longed to Common Pleas because it concerned a problem between subJect and subJect. But the plaintiff could shift the case to King's Bench by claiming that the defendant had been arrested and was a king's prisoner, King's Bench having Jurisdiction over the affairs of royal prisoners. Exchequer we also no the ting no lhit' WE come, too? court heari- ‘i‘he Co “rough thi The no,” beause of "do 11kg 24 was also available if the plaintiff argued that he owed the King money and the refusal of B to pay A made a “less able” (guominus) to pay the King.66 The defendant, of course, could prolong the litigation by insisting that the court hearing the case did not actually have Jurisdiction. The common Law and its courts were able to grow through this fictitious use of already existing writs. The growth was bound to be slow, tortuous, and circuitous because of the limited base from which it had to operate; and, like a closely trimmed bush, the legal system grew more in density than in hrendth.67 The density increased the complexity and rigidity of legal proceedings. Confined to such a narrow area, litigants had to pay strict attention to the wording of writs, twisting their case to fit a particular writ. The defendants, with equal syntactic vigor, tried to show certain writs as not valid for their cases. If a writ was finally found to fit a cause, one had also to be sure that that writ would bring the desired result because different writs had different procedures and results. For example, if B ”usurped” A's land, A night sue out a Irit of Trespass against 3. But Trespass resulted only in damages, which A could collect: he could not regain his land. To regain possession of the land he had to file a Irit of Right. In short, as law and procedure became more refined, if that is the apt word, technique and method became more important than substance: and there emerged a class of people, lawyers knowledgeable (and invaluable to the litigant) in the technique and methods of legal machinery Iho, like a], uchine tha. liter troubles ve ‘ deiendant 1 'leene court“ Elven to ”beam 1"yer h hit son, 'Wltihg 78801113,. . him". on mm Drote “Mina ei m“ tor a b“ “th hi “not“. t1 mM “‘01 m We t mean. a be {mind ‘2 lhd thesg 25 who, like skilled mechanics, had a greater interest in the machine than in the product turned out. After finding the proper writ and court, the plaintiff's troubles were by no means over. He next had to produce the defendant in court. “lesne process'-the act of producing a defendant in courto-was excessively dilatory. Every opportunity was given to the reluctant defendant to postpone his appearance, and keep his adversary or his adversary's lawyer hanging about the offices of the court, spending his money on obtaining writs of distraint or of arrest: awaiting their return, and feeing clerks.68 'Essoins,” excuses for not appearing in court, were allowed. A minor's case could be adJourned until he came of age: royal protection could cause an adjournment gigs gi2369 and pleading sickness, the commonest excuse, could postpone trial for a year and a day if the defendant were found in bed with his shoes off.70 When the defendant ran out of essoins, the plaintiff, provided the sheriff had not been bribed from serving the writ, had a choice of two processes to bring the defendant to court: distraint of property or arrest- and outlawry if needed. If the person could not be found to be arrested, outlawry prdceedings were instituted, and these ”took in the most favorable circumstances at least one and a half years, and much longer if the defendant were determined and intlnsntisl.”1 Distraint could last as long as the defendant's property held out, and he could then flee and be declared an outlaw. "Several years might elapse” before he was brought to trial.72 Then, when at long last the parties--or their lawyers- confronted each other, the unique law of pleading, which had developed during the fourteenth and fifteenth centuri sore on presents isolate * decisio Prolonge; “Even I tn: '8 decisive' The net “3‘94 to e: the ends the: M “d br use: Special the fin Pure d! 26 centuries tended to make the outcome of a case depend more on technical excellence--or the reverse--of its presentation, than on its merits. The aim was to isolate a single issue of law or of fact, on the decision of which Judgment would be awagded, by a prolonged and precise logical process.7 ”Even a trifling verbal slip or omission [in that process] was decisive."74 The method of pleading was, no doubt, originally de- signed to expedite Justice, but the means soon overshadowed. the ends desired. It was possible to contest a claim in tgtg_and bring a case immediately for Judgment, but in most cases special pleading was necessary, and the process by which the final single issue was ultimately arrived at was , refined and elaborated by the ruthless application of pure dialectical method, and became an exact science of extraordinarily minute and subtle technicality. The defects of this development were obvious enough, but were outweighed by the lawyers' delight in the scope it gave to the elaboration of logical technique. It did not reach full perfection till the sixteenth century, when the system of written pleadings drawn up by the lawyers of each side outside the courts was introduced. Before that the pleadings had been oral and were made in the presence of the Judge. Though the extreme elaboration of the later method was not attained, and the number of fatal procedural pitfalls was not so great, a high degree of formal accuracy was always necessary. Each of the forms of action-i.e., the actions which it was possible to bring under an original writ--required strict adherence to the detailed rules of pleading applicable to it. The choice of the wrong writ on which to base a claim, or a mistake in the pleadings-- e.g., pleading outside the content of the writ-~meant the instant dismissal of the suit. ”Duplicity“, which means not deceitfulness, but pleading or attempting to plead more than one issue, was at once fatal, even though a clear miscarriage of Justice would result.75 Sometimes Justice prevailed despite the complexity of procedure as in a case heard before Judge Stanton and re- ported in a fourteenth-century Year Book. an attorney for a widow'appeared before Stanton in a case where the defendant had detsuit started to 'Iihked at The cm of finished in that.“ com to a The client M' hands; ”0‘ Order bony”. ‘ Bench 0rd record 0: much! result 1, co“"331. “Med a o. t ‘hg good ‘he raCt 27 had defaulted by not appearing in court. The attorney started to put forward a formal plea when the kindly Judge "winked at him. The attorney then claimed on default.” The crux of the matter was procedural; had the attorney finished his plea he would have waived his right to claim default.76 ln.a different case, an attorney answered in court to a wrong name, causing his client to lose his suit. The client, one Ralph de Cully, stood the chance of losing his hands: but the Justices, sympathizing with Ralph, did not order his hands to be 10pped off. Ralph's adversary, however, must have been vindictive because later the King's Bench ordered that Ralph had to lose his hands. There is no record of whether the sentence was implemented.77 The intricacies and rigidity of such procedure were bound to result in inJustices, especially if all Judges were not as compassionate as Stanton and all adversaries were as bloodyv minded as Ralph's. 'On top of all these problems, the king's writ, strangely, was good only in the shire to which it was issued despite the fact that the king's law supposedly held throughout the. realm. Benry Brinklow, as late as the mid-sixteenth century, complains that unwrytt may serve but for one shyres as though the King were lord but of one shyre: But i demand, why may not one wrytt serve in all shyres, yes in all placys under the Kyng's dominion, wheresoever he or hys may find his defendant? he lays the blame squarely on the shoulders of the lawyers who»knew legal procedure and maintained it to their own advantage. 8' ('0 O < 0 @ 28 - Surely there is no godly reason why to the contrary, but even the only private welth of sotle lawyers. And, as farre as I can lerne, one wrytt lasteth but for one terms: and the next terms he must be at charge to come up, or at least to send sometime iii or iv hundred myle for another. igayne, no man may serve it but the Sheryff of the shyre or his man, and so many times it is sure that the sheryff or his man (and some- tyme both) plays the false shrewys in geving the party warning to kepe him out of the way, or to go into ° another shyre. Oh, the unnumerable wyles, craftys, sotyltes and delays that can be in the lawe, which the lawyers will never spye, because of their private lucres sake. The royal Cbmmon Law Courts, which began their career as havens for those seeking impartial Justice, eventually became trapped in their own procedure largely because of their being stunted in growth, but also because they became the workhoases of professional people whose knowledge of the intricacies of law'and procedure not only made the legal machine work, albeit creakily, but also helped preserve and perpetuate the monstrosity for “their private lucres sake.“ Some relief had to be found, especially where sixteenth- century legal problems could not be made to fit into writs penned in the thirteenth century. The relief, which proved only temporary, came from the creation of the Court of Chancery. ‘The King and council had always been available for equitable proceedings if so remedy could be found at common Law. (This is still seen in America as executive clemency.and pardon.) Gradually, the cases became too many for the Council to hear, and the duty of supplying equity devolvsd upon the Chancellor who, by the end of the fifteenth century, had a law court “almost entirely distinct“ from the Counoil.79 No doubt the increased ossification of Common in procedu but that u been to s its on 31 the sue: the to”, “me it Edvard 11 ”Elan-y 15508 to times“ “use: ‘ 29 Law procedure helped feed the stream of cases into Chancery: but that court, once established, sought its own level and began to encroach upon the Jurisdiction of other courts. Its own Jurisdiction was not clearly defined: and, following the pattern of earlier courts, it began to compete for cases and fees, garnering ”well over a hundred thousand“ cases during the reigns of Richard II, Henry IV, Henry V, Henry VI, Edward IV and Richard 111.80. In Elizabeth's reign,'Chancery's registry of cases increased from three hundred folios in the 1560s to over eight hundred by the 1590s, averaging one 81 In 1653, twenty-three thousand thousand cases a year. causes were alleged‘to be depending in Chahcery.82 This dramatic growth in Chancery cases was aided by the ethical nature and flexible procedure of the Chancellor's court. It ”administered 'natural Justice' in the name of the King, as the fountain of Justice“33 and, at least early in its career, was not overly concerned with the refinements of procedure and exactness of pleading as were common Law Courts. However, as the volume of Chancery's cases in- . creased, so did its bureaucracy. Technically, the Court had one Judge, the Chancellors but he could not possibly hear all the cases or handle all thepaper work. The Chancellor was assisted by ”Heaters Extraordinary“ who often heard matters relative to suits and made reports to the Chancellor on these. The Chief laster, laster of the Rolls, occasion- ally even tried cases. Beneath the [asters were the Six Clerks of Chancery who drew’up the write. These six were 84 aided by sixty more clerks. This bureaucratic hierarchy as designs hot 5" J spoa¢¢gg 30 was designed to speed Justice and facilitate proceedings, but Such an organization could not fail to be subJect to abuse and delay in the administration of Justice. Its complexity made it very difficult to hear causes with speed and regularity, while at the same time it in- creased enormously the expense of litigation. . . . all proceedings were written, and ofgen written in a manner calculated to increase expense.8 The Chancellor was overworked; and his subordinates, who were paid from court fees, did nothing to lighten his load. In fact, it was to their advantage to have the Chancery procedure as complex, as time-consuming, and as expensive as possible.86 John Chamberlain remarks that a suit in Chancery “became as it were immortal.'37 He also tells the story of a disappointed Chancery litigant who killed a laster of Chancery for supposedly undoing him by wrongly reporting his case. Sentiment was for the assailant, and a Sir William halter remarked that “the fellow mistook his mark and should rather have shot hailshot at the whole Court [of Chancery], which indeed grows great and engrosses all manner of cases."88 In 1653, the Barebones Parliament lamented that For dilatories, chargeableness, and a faculty of letting blood [of the people in the purse veine, even to their utter per shing and undoing . . . that court [Chancery] may compare (if not surpass) any court in the World. It was confidently affirmed, by knowing gentlemen of worth, that there were depending in that court, twenty-three thousand causess that some of them had been there depending five, some ten, some twenty, some thirty years or more: that there had been spent in causes, many hundred, nay thousands of gounds, to the ruin, nay utter undoing of many families.8 In roughly two centuries, Chancery had come from a court 30 was designed to speed Justice and facilitate proceedings, but Such an organization could not fail to be subJect to abuse and delay in the administration of Justice. Its complexity made it very difficult to hear causes with speed and regularity, while at the same time it in- creased enormously the expense of litigation. . . . all proceedings were written, and ofgen written in a manner calculated to increase expense.8 The Chancellor was overworked: and his subordinates, who were paid from court fees, did nothing to lighten his load. In fact, it was to their advantage to have the Chancery procedure as complex, as time-consuming, and as expensive as possible.86 John Chamberlain remarks that a suit in Chancery “became as it were immortal.'87 He also tells the story of a disappointed Chancery litigant who killed a heater of Chancery for supposedly undoing him by wrongly reporting his case. Sentiment was for the assailant, and a Sir William Halter remarked that “the fellow mistook his mark and should rather have shot hailshot at the whole-Court [of Chancery], which indeed grows great and engrosses all manner of cases.“88 In 1653, the Barebones Parliament lamented that Per dilatories, chargeableness, and a faculty of letting blood [of the peOple in the purse veine, even to their utter per shing and undoing . . . that court [Chancery] may compare (if not surpass) any court in the World. It was confidently affirmed, by knowing gentlemen of worth, that there were depending in that court, twenty-three thousand causes: that some of them had been there depending five, some ten, some twenty, some thirty years or more: that there had been spent in causes, many hundred, nay thousands of gounds, to the ruin, nay utter undoing of many families.8 In roughly two centuries, Chancery had come from a court an «sight but Such an abuse 3 ' caplex speed a creased proceedi alculat The Chancel] me pa 1d 1‘ In fact, it Procedure . " Possiblq Chance“ .. “01’! ot a "mr of "9“th 8“ n111: and ahOUI. 30 was designed to speed Justice and facilitate proceedings, but Such an organization could not fail to be subJect to abuse and delay in the administration of Justice. Its complexity made it very difficult to hear causes with speed and regularity, while at the same time it in- creased enormously the expense of litigation. . . . all proceedings were written, and of en written in a manner calculated to increase expense.8 The Chancellor was overworked: and his subordinates, who were paid from court fees, did nothing to lighten his load. In fact, it was to their advantage to have the Chancery procedure as complex, as time-consuming, and as expensive as possible.86 John Chamberlain remarks that a suit in Chancery"became as it were immortal.'37 He also tells the story of a disappointed Chancery litigant who killed a lastar of Chancery for supposedly undoing him by wrongly reporting his case. Sentiment was for the assailant, and a Sir William Walter remarked that “the fellow mistook his mark and should rather have shot hailshot at the whole~Cburt [of Chancery], which indeed grows great and engrosses all manner of cases."88 In 1653, the Barebones Parliament lamented that no: dilatories, chargeableness, and a faculty of letting blood [of the peOple in the purse veine, even to their utter per shing and undoing . . . that court [Chancery] may compare (if not surpass) any court in the World. It was confidently affirmed, by knowing gentlemen of worth, that there were depending in that court, twenty-three thousand causes: that some of them had been there depending five, some ten, some twenty, some thirty years or more: that there had been spent in causes, many hundred, nay thousands of sounds, to the ruin, nay utter undoing of many families.8 In roughly two centuries, Chancery had come from a court noted (or a dell; and c 80 von Medan. Trespass in be light no on. He com ”u" t0 c. nem- in 0 3° “1'! he the exact. language historian .Pl‘egg‘t‘ “983 D! . lhtg\lec “Eh: .1 “ete- ‘ “"9 t 31 noted for speedy and equitable Justice to a byword for delay and corruption. No wonder the English layman was mystified by legal procedure. He did not know why he had to sue out a Writ of Trespass in order to collect some money owed him. Indeed, he might not even have any land for somebody to trespass on. he could not understand why his case was shifted from court to court or why he had to pay fees to a court he was never in or why his case and its documents had to go through so many hands. Finally, he must have been bewildered by the exact, technical pleadings in the unintelligible language of the courts, Law-French. In the words of one historian, what passed for an English legal system “presented a pattern calculated to raise at once the uneasi- ness of lawyers, the despair of laymen, the hostility of intellectuals and the sheer amazement of foreigners.”90 One might also add the fury of satirists who saw the whole system concocted out of a conspiracy among lawyers to guar- antee their necessity in legal cases and the wealth they amassed from those cases. as mechanized as the courts had become, they were not automatons but were staffed and run by a highly, if narrowly, trained group of professionals: the lawyers. The term ”lawyer” was a blanket one covering a host of different specialists on all but the higher rungs of the legal hierarchy. At the top of the hierarchy were the Chancellor (not always a lawyer) and the Solicitor and Attorney Generals. Beneath them were the Chief Justices of King's Bench and Cannon Ple Rolls Ind 1 lent: in t m ‘0“, 1 lu no h in. 'hom “T! the U they 1 Vere Idv Rona La in Web Meade“ 32 Common Pleas and their associate Judges. The Master of the Rolls and the Doctors of Law were their approximate equiva- lents in the courts of equity and Roman law respectively. The most prominent practicing lawyers were the sergeants at law who had exclusive rights to pleading in Common Pleas and from whom, technically, the Judges were chosen. Below these were the barristers, labelled “inner” or “utter,“ the former if they had been called to the bar. Similar to barristers were advocates who trained at the universities in Canon and Roman Law, who were also Doctors of Law, and who practiced in such courts as Admiralty and Arches. Beneath the pleaders were solicitors, attorneys, and prectors, men who were allowed to plead in out of the way provincial courts but who were, in maJor courts, limited to preparing a case for the barrister and seeing that the machinery of litigation ran smoothly. The solicitor worked in Chancery, the attorney in Common Law Courts, and the proctor in Roman Law Courts.91 Finally came the students of law, studying at one of the four Inns of Court or one of the lesser Inns of Chancery. There were a multitude of other legal and quasi- legal figures such as Justices of the peace, sheriffs, bailiffs, constables, lieutenants, and deputy lieutenants who might or might not have legal training and whose work con- sisted both of administering the law and supplying legal counsel. The competition for work among so many legal figures and courts “might have convinced the most enthusias- tic exponent of free enterprise that there was a case for some measure of planning in public administration."92 The t by the cont Originally it local c to all in 'mlplon "Declen eh“Dion attend“. Vealthy, 1! the K “It the 33 The training of the Renaissance lawyer was determined by the complicated evolution and practices of the courts. Originally, there seems to have been no need for a lawyer, as local courts operated primarily on custom which was known to all in any particular locale. At some early time, “champions“ were allowed to substitute for litigants, especially in the ”Trial by Battle.” In a sense, the champion can be seen as the first attorney. Later, if attendance at court was inconvenient and the litigant wealthy, he could purchase the privilege of using an attorney in the King's Courts. But, as the Common Law spread through- out the realm, and as case law developed with its subsequent stress on precedent, men well-versed in that law became necessary to protect an individual's legal rights.- Ad legal procedure became more complex and rigid, the legal profes- sion became more specialized, eventually splitting into barristers and attorneys, though the distinction was first made in the sixteenth century. The complex procedure of pleading, of narrowing a case down to a specific issue of law, became a science in itself: and its practitioners were the barristers. However, there was still a vast amount of legal work which required no knowledge of pleading but did necessitate a minute acquaintance with the intricacies of writs, wills, contracts, etc. This area of the law eventually became the province of the attorney.93 At the same time, another legal figure made his appear- ance in the Court of Chancery: the solicitor. The solicitor, tilled the vlth the i century. aneoveréo lnother pen legal um I" kept tro Blessed to” "tone“ , the can b‘ u'tihctlo to inn“ “ulster, tmus to “3 that 1 all three: out, at r: The ' It on Of Chancery In “to“ Ichulan mhdneted “1138101: “or Of “Oh. Comm “he,” a 34 solicitor, who was later (1873) to merge with the attorney, filled the void left by the Six Clerks' inability to cOpe with the increased litigation at the end of the sixteenth century. He paid court fees, bought writs, and, in general, maneuvered his client's case through Chancery procedure. Another person, also known as a solicitor, was a manager of legal affairs for land owners and businessmen. As manager, he kept track of legal suits for his client as they pro- gressed through the various courts of the land and advised attorneys and barristers of the progress of suits bearing on the case but being heard in other courts. Modern England's distinction between barrister and solicitor is confusing to Americans, but Renaissance England's distinctions between barrister, attorney, and solicitor would be equally con- fusing to the modern Englishman. Adding to the confusion was that the term ”lawyer” was used generically to refer to all three, even though their functions and training could be quite different. The Renaissance lawyer's legal education was acquired at one of three places: at the university, at an Inn of Chancery and/or Court, or as an apprentice in the office of an attorney. The university was the training ground for the “civilians,” Canon and Roman Law lawyers: and their education, ceaducted in Latin, followed normal university procedure of admission, examinations, and the granting of degrees, up to Doctor of Law, which entitled the student to practice in non-common Law courts. The Common Law lawyer's training, however, was different. The Inns of Court, for example, though on degeeee‘, h ltttle to: M ‘Ihol' when ed The train Ntrlste: '38 Gem "the:- t educat 1C “t? ed\ Th “Melt, court, I "slit 1 “‘1 tn. “he th bERn 35 though papularly called “the third university,” granted no degrees, held no formal examinations, and offered very little formal education. The ”curriculum” was so flexible and “wholly practical"94 that it would have shocked most modern educators, with the possible exception of John Dewey. The training was long (technically twelve years before a barrister could qualify to practice at Westminster)95 and was devoted to the mechanics of write and court procedures rather than any abstract theories of law and Justice. The education was as much an apprenticeship as it was a unitar- sity education.96 The distinctions between barrister, attorney, and solicitor were first made in the sixteenth century. -As court procedure became complex and rigid, specialization crept in, creating the expert in pleading, the barrister, and the expert in court and legal machinery, the attorney and the solicitor. The barrister's legal training typically began in an Inn of Chancery, though he might previously have attended Oxford or Cambridge.97 The curriculum consisted of an intense training in the Common Law writs, which were issued out of Chancery, and the “course of the courts,” training in the various procedures of bringing an action to trial in the appropriate court. In addition, Chancery students receivedsome training in the actual pleading of cases,98 their maJor educational exercise if they went on to an Inn of Court. They also listened to ”Readings” (interpretations of statutes) and, possibly, learned some Law-Trench,99 the anachronistic language of the law courts. tter the hem tn'inner nente It n or rolling students, the bar. “Benchers the fldnin MCtItic senior m n°t yet . none“ a Juno, e Went 8t barn“: Th1 ‘lnn.n ‘ "3310:; were no Other 1. during . achCK31_ being 36 Ater two years at an Inn of Chancery,100 the prospec- tive barrister applied for admission to an Inn of Court as an ”inner barrister,“ so-called because of seating arrange- ments at meals, the younger student sitting “within” a bar or railing that traversed the dining hall. The senior students, the “utter” (or outer) “barristers,” sat without the bar. An Inn was divided into three parts: the "Benchers,"101 the most senior members, who functioned as the administration and the faculty of the Inn and who were practitioners in courts or even Judges: the utter barristers, senior members who had been called to the bar but who had not yet qualified to practice at Westminster, and who also served as faculty members: and the inner barristers, the 102 Junior students. Normal procedure meant that a student spent seven years as an inner barrister and five as an utter barrister before he could practice at Westminster.103 The school year was divided into three parts: ”term- time,“ the four periods of the year when the courts were in session: “learning vacations,” two a year when the courts were not in session, one at the beginning of Lent and the other in the summer: and the ”mean" or ”dead vacation,“ during which, despite its name, learning continued. The school day was also divided into three parts, education being conducted in the morning and evening, the afternoons remaining free time. The “wholly practical” nature of the lawyer's education can best be seen in the learning exercises of term-time. The inner barrister spent the morning, from eight to eleven, It the Kin and decide :eetton r! Mk note 10ml in 01 cases 311191! 01 ”d proc adJOUrhe The "tar th Inner 3! Ilse“n81 utter b “be: t Behehex barn” 91.3% “e? w: ‘hlch . 37 at the King's Courts, observing actual cases being pleaded and decided in the Westminster courts. He sat in a special section reserved for him called ”the cribbe“ and, presumably, took notes of the pleading and procedure. There was no formal instruction by the Judge or the pleaders, no stapping of cases to discuss or elucidate technicalities. The student simply observed, noted, and, no doubt, memorized the pleading and procedure of actual cases in court. When the courts adJourned at eleven, the first class was over.104 The second class convened in the Inns' dining halls after the evening meal, with all members of an Inn, Benchers, inner and utter barristers, in attendance. At these' meetings, mock trials, or ”moots,“ were conducted by two utter barristers, one representing the plaintiff and the other the defendant, the trial being presided over by the Benchers. The moot was simply practice for the utter barristers who soon hoped to plead at Westminster. They pleaded the case, as they would in court, in Law-French: and they were fined if they strayed from the single issue to which the case had been narrowed. (In an actual court, the case would be lost by such a slip.) When they finished, two previously selected inner barristers '[did] for their exercise recite by heart the pleading of the same mote-case, in Law-French.'105 Finally, the Benchers commented on the handling of the case and on issues of law brought up. The Benchers' comments brought to an end the second class and education for the day.106 Such Erasnus no 0t the la tntetentt eonm 0 mm \ eerneg ‘ euxoont Concern The edn Vorked affect cern.l 38 Such a system of learning was bound to produce what Erasmus called ”the most unlearned of learned men.” Host of the lawyer's early training was the memorization of intricate arguments in a language unspoken outside the law courts of England. Law cases, because they centered on single issues, produced lawyers who were immoderately con- cerned with minutiae and technicalities, the quirks and quiddities of law that Hamlet derided, and who were more concerned with legal procedure than with abstract Justice. The education of the lawyer taught him how the legal machine worked: what the machine produced and how the product affected the rest of society were not his education's con- cern.107 Sir Thomas Elyot, himself a former Inn student, protested against students encountering the “fardels and trusses” of the law before they had a philosOphic background to put law in perspective.108 . The most formal and theoretical education of the barrister came during the two ”learning vacations” of Lent and summer. Combined, the two vacations totalled seven weeks of instruction, during which were ”the greatest conferences and exercises of study that they [had] in all the year."109 The formal education was supplied by a ”Reader” (a high, if sometimes unwanted, honor)no chosen from the utter barristers. The Reader presented a detailed analysis of a particular act or statute and declared such inconveniences and mischiefs as were unprovided for, . . . and then recite[d] certain doubts, and questions which he ha[d] devised, that may grow upon the said statute, and declare[d] his Judgment therein.1n Polloetng the devil‘ interpret nether: o 0n the he moved : 11 any y. The read After th t”'l'tln: arising t1fitted 1 leer-MM 138th“. 39 Following his presentation, another utter barrister, playing the devil's advocate, labored to refute the Reader's interpretation. The advocate was followed by other senior members of the Inn who gave their Opinions on the statute and on the Reader's interpretation of it. The Reader was then allowed a rebuttal. Finally, Judges and serJeants-at-law, if any were present, commented on the whole proceedings. The reading and discussion lasted for about two hours daily. After the evening meal, in place of the regular moots of term-time, the Reader was called upon to debate cases arising from the statute he discussed. This procedure con- tinued for the three weeks and three days of each of the two learning vacations and was the sum total of formal legal instruction supplied by the Inns of Court. The "mean vacation,“ the last of the three learning vacations, was devoted to the inner barristers. During this vacation, the Benchers were not required to be at the Inn, and their places were taken by the utter barristers. The inner barristers took the places and responsibilities of the utter barristers, arguing moots as their seniors did during term-time. This concluded the three learning vacations and, unless the young lawyers followed the advice to ”talk law“ and ”put cases“ to each other in their spare time, concluded the yearly legal education of Inns of Court students.112 Law, however, was not the only subJect taught at the Inns. Students were urged but not required to study . history, especially English, and foreign languages:113 they | m: else 1] teettee. ueqnee , \nhtenee 30“ For lllteent Inns: In 1 1981 law nob the the; to: 3r: the 40 were also instructed in music, dancing, and military tactics.114 The Inns were known for their own revels, masques, and plays as well as for providing stages and audience for the professional Elizabethan playwrights. Sir. John Fortescue, in his 23 Laudibus Legum An liae, gives a fifteenth century picture of the non-legal curriculum of the Inns: . In these greater inns [bf Court], indeed also in the lesser [of Chancery] there is, besides a school of law, a kind of academy of all the manners that the nobles learn. There they learn to sing and to exercise themselves in every kind of harmonics. They are also taught there to practice dancing and all games proper for nobles, as those brought up in the king's household are accustomed to practice. In the vacations most of them apply themselves to the study of legal science, and at festivals to the reading, after the divine services, of Holy Scripture and of chronicles. This is indeed a cultivation of virtues and a banishment of all vice. So for the sake of acquisition of virtue and the discourage- ment of vice, knights, barons, and also other magnates, and the nobles of the realm place their sons in these inns, although they’do not desire them to be trained in the science of the laws, nor to live by its practice, but only by their patrimonies.115 The Inns, then, were not only schools of law, but also finishing schools for the gentry and nobility. It is not clear how'much cross-over education occurred: that is, how much law'the nobles learned and how many lawyers dabbled in the arts: but it is known that serious students of the law concentrated their time on study of the 1... Sir Edward cake, for example, labored over the law from 3:00 A.k. to 9:00 P.I.: and ”it is supposed that in the whole course of his life he never saw a play acted, or read a play, or was in the company with a player.'116 The dual education for the Inns persidted for well over I hundred sixteenth gases, 3 henry m: m: b! 15 1“ hr 157 175 Vere 1 increased '9": 8pm the end 01 detenom. Tech mining, 41 a hundred years and became increasingly popular during the sixteenth century, with the study of the arts and social graces, surprisingly, overshadowing the study of law. In Henry VIII's reign, 40 new students a year were admitted: but, by 1580, 250 new students a year enrolled there.117 In May 1574, out of 761 members of the Inns present, only 176 were lawyers while 585 were "gentlemen."118 The increased student load and the emphasis on social affairs were, apparently, too much for the Inns to manage: and, by the end of the century, the quality of the education deteriorated.119 Technically, the barrister spent twelve years in such training, seven as an inner barrister attending the courts in the morning and moots in the evening. At the end of that time he could be called to the bar, but that only meant that he was an utter barrister not that he could plead cases at Westminster, though he occasionally did.120 The utter barrister spent five years practicing pleading and acting as a faculty member for inner barristers before he could become an “Ancient,” which title permitted him to practice in the courts,121 except the Court of Common Pleas which was reserved for serJeants-at-law.122 It took sixteen to twenty years. depending on one's authority,133 to become a serJeant. Judges were chosen from the serJeants, though by the end of the sixteenth century that had become a formality. A Prospective Judge could be appointed serJeant one day and Jfidce the next, as was Sir Edward Coke.124 i hundred sixteenth tunes, on 3°an VIII ”‘1‘: by 15 1W: 157 175 me 1 Increased 41 a hundred years and became increasingly popular during the sixteenth century, with the study of the arts and social graces, surprisingly, overshadowing the study of law. In Henry VIII's reign, 40 new students a year were admitted: but, by 1580, 250 new students a year enrolled there.117 In Hay 1574, out of 761 members of the Inns present, only 176 were lawyers while 585 were "gentlemen."118 The increased student load and the emphasis on social affairs were, apparently, too much for the Inns to manage: and, by the end of the century, the quality of the education deteriorated.119 Technically, the barrister spent twelve years in such training, seven as an inner barrister attending the courts in the morning and moots in the evening. At the end of that time he could be called to the bar, but that only meant that he was an utter barrister not that he could plead cases at Westminster, though he occasionally did.120 The utter barrister spent five years practicing pleading and acting as a faculty member for inner barristers before he could become an ”Ancient,” which title permitted him to practice in the courts,121 except the Court of Common Pleas which was reserved for serJeants-at-law.122 It took sixteen to twenty years, d°P°fldinH on one's authority,123 to become a serJeant. Judges were chosen from the serJeants, though by the end of the sixteenth century that had become a formality. A prospective Judge could be appointed serJeant one day and Judge the next, as was Sir Edward Coke.124 The wholly or rho, tor treining Shallow to lake ties to Working Ilnage, charge 5:111 . barn-is Simply or con edueat Just e 42 The barrister‘s legal training was long, arduous, wholly practical and quite expensive.125 There were many who, for one reason or another, never completed their training or who were never called to the bar. Some, like Shallow and Falstaff, absorbed a smattering of law, enough to make them minor, country potentates with legal capabili- ties to harass their neighbors. Others were young men working their way up from the fields to become estate managers, stewards, who needed enough law to keep their charge intact and to run their lords' manorial courts. Still others were students who had no intention of becoming barristers but to be attorneys, and the attorney was often simply a person who had not completed, or had no intention of completing, his barrister's training. The attorney's education, then, was not different from the barrister's, Just shorter. Both could very well have attended an Inn of Chancery and Court, though many attorneys went no further than Chancery. However, formal education was not a pre- requisite, and one could become an attorney by having served an apprenticeship with a practicing attorney.126 The determination of an attorney's qualifications to practice and the control of his conduct resided in the court in which he was enrolled. (The Inns of Court admitted barristers to practice and controlled their conduct.) The attorney, when he thought himself ready, applied to a court for admission. If accepted, he was "enrolled” in the court and could practice only in those courts in which he was 127 enrolled. However, the number of attorneys enrolled in a court set Chancery h- The Common in 1518 or me, as . The - great has citizen 3 ”80 nec: Sonata; (1..., t me; 0! they '8! "We c1. 43 a court was limited, especially in prerogative courts: Chancery had six, Exchequer four, and Star Chamber two. The Common Law Courts had more: Common P1eas numbered 313 in 1578 and King's Bench 342 in 1633.128 The attorneys were, as they still are, considered officers of the court. The monopolies which attorneys had in courts were, in great measure, responsible for the enmity between the citizen and the legal profession during the Renaissance and also necessitated the rise of another legal figure, the solicitor. In Chancery, for example, the Six Clerks (i.e., the attorneys) found it impossible to cope with the waves of litigation which flooded the court: but, because they were paid from court fees, they were reluctant to have more clerks appointed, which would have speeded litigation but lowered their salaries. Gradually, men learned in the law, either by formal training in an Inn or apprenticeship, began to do the work of the Six Clerks in order to expedite cases. This practice meant that the litigant paid double fees, one to his representative for doing his legal leg-work and another to one of the Six Clerks for supposedly having done that work. (This strange but profitable practice survived the Revolution and was not stopped until the nine- teenth century.) Thus there grew up about Chancery a horde of legal figures who filled the gap left by the Six Clerks' inability to handle cases. The members of this horde were known as solicitors, and it was not long before they cropped up in other courts of the land.129 blood Lord tune4 into tour and can: last lega beca leg; 11:: to 1 the the 0! the 801 44 Solicitors, however, were not Just leeches sucking the blood of a litigious age (”Caterpillars del commonweale,“ Lord Keeper Egerton called them.):130 they served a real function. For example, law suits were apt to proliferate into many courts, but attorneys could not flit from court to court because two courts might be sitting at the same time and because attorneys were restricted by enrollment to the courts in which they could practice. Consequently, a master legal strategist was needed to coordinate all the legal actions a single case could bring. The solicitor became the strategist. He also served the function of a legal middleman between the courts at Westminster and litigants spread throughout the realm who found the travel to London inconvenient, expensive, and dangerous. The solicitor bore the brunt, but by no means all, of the satire against Renaissance lawyers: and it was he who was generally referred to as the “rascally attorney” and the “pettifogger.” The satire was Just, as the profession of solicitor attracted the unscrupulous and the untrained.131 Though the Inns of Court regulated barristers, and Courts their attorneys, there was no regulating body for the solicitors. They simply filled the vacuum created by attorneys and barristers who, ironically, in securing their monopolies also excluded themselves from legal work outside their monOpolies. There were no qualifications needed to be a solicitor, though many might have been trained at the lane. The conscience of the solicitor was often the sole check on his chicanery, and the general corruption of the 45 . age did little to inspire that conscience to be overworked. Because the solicitors did much of the work of court attorneys, there grew up an unholy alliance between solicitors and the attorneys who were the under-clerks of a court.132 A bribe to a clerk could produce a writ, move a case up or down on a court's calendar (a practice known as the court's ”heraldry“), or cause necessary documents suddenly to appear or disappear from court rolls. The under- clerks also made money by the amount of paper work they did, so they were not overly concerned about whether solicitors sought writs for obviously unfair, false, and vexatious cases. The multiplication and prolongation of cases were to their advantage, and they worked hand in glove with solicitors who supplied them cases.133 Things reached such a state that an exponent of Chancery, itself a byword for corruption, lamented that in the Courts of Common Law not one Judgment in a hundred was pronounced in Court, or considered by the Judges, but was entered in the rolls by attorneys without the Judge's knowledge, especially in cases where the plaintiff's attorney had collusively retained, or acted in collusion with, the attorney for the defendant, who agreed, presumably for a considera- tion, to the claim made against the person whom he was supposed to represent.1.4 The court bureaucracies had become so complex that, with a little ingenuity and money, court underlings (the under- clerks, attorneys, and solicitors) could maneuver cases and Judgments onto the court records without a Judge ever having heard of the case. Attempts were made, notably by Thomas Egerton, Lord keeper of the Great Seal, to root out the corruption of his court. the it the i Dre ct sons tl’lt poll that 83 I 001.} la w 68c 46 court, Chancery. However, his main thrust was not to revamp the intolerable bureaucracy of the court, but to stabilize the fees of that bureaucracy and to eliminate fraudulent practices. In short, he attempted to return Chancery to some pristine state where, supposedly, it worked more 135 Despite his efforts, Egerton's efficiently and honestly. policies failed to make Chancery a model court, so much so that one historian of that court refers to the Keeper as a ”tragic hero."136 ‘ It is small wonder that Elizabethan-Jacobean writers saw the law courts as prime targets for their Jibes. The courts themselves did little to inspire confidence in either law or Justice. The maJor courts at Westminster battled each other for Jurisdiction and profits: the courts were profit-making institutions. The expense of a trial, caused by the fee-taking of all concerned, brought constant charges that the law favored the rich and that Justice was, in effect, bought. The courts also stressed adJectival over substantive law: to them, procedure was more important than Justice. The fact that the legal machine clanked cumbrously along was enough to raise the ire of most people: but the fact that the legal profession made money out of that clumsiness made it intolerable for satirists. ‘ The men who staffed the courts were seen as no better than the courts themselves. They were viewed, at best, as defenders of their own entrenched interests, their offices, and fees. Solicitors and attorneys were charged with . fostering vexatious legal suits for their own, not their 47 clients', benefit. Barristers might have been more honest as a class, but it was especially their orations in Law-French and devious maneuverings in the art of special pleading that aroused the suspicions of clients ignorant of the rules of the legal game. Indeed writers often inveighed against the esoteric art and training of barristers as producing narrow-minded, uneducated men with stunted Christian consciences. We now turn to the study of Elizabethan-Jacobean writers' assaults on the legal profession, the law, and the courts. 'itb the background information presented here, the reader can see more readily not only what the writers were attacking, but why those things existed, whether they were the fees of a law case or the lawyer's education. A study of those attacks will show that writers were familiar with the legal profession and legal procedure, though writers did not fully understand the causes of either.' (Indeed, the lawyer might very well not have understood why legal procedure worked the way it did: he was more interested in learning what he had to do in a case than why he had to do it.) What the writers did know, they attacked specifically, but they did not confine their assaults to solely legal issues. 'They also painted the lawyer against a background of social, moral, and cosmic ideas, a portrait that showed the lawyer as the personification of evil and symbol of the degenerate state of the world. f tbs also thre Seac Hall bran and dail devo In CHAPTER II LAWYERS IN A LITIGIOUS AGE The Elizabethan law courts served not only as a place to settle the people's innumerable legal squabbles, but also as a source of pOpular entertainment. The country's three maJor courts, Chancery, Common Pleas, and King's Bench, were all situated on the ground floor of Westminster Hall, within easy earshot of each other: and a casual stroll brought London's idle from one show to another. To a nation and time unblessed with radio and television, the law courts daily staged live dramas that would have absorbed the devotees of modern soap operas and the gossip-mongers of all eras. Charges and countercharges flew before the courts as family hostilities erupted into the open, as neighbor pitted himself against neighbor, as a local merchant finally cornered his debtor, and as a current bloody or scandal- ridden £3253 célbbre unfolded itself. Choice gossip was pocketed for more leisurely discussion or literary notoriety as the private lives of the antagonists were laid bare before the court. Prominent on the legal stage were the adversaries' lawyers, verbally Jabbing and parrying, looking for a weakness that would tip the scales of Justice to their clients' advantage. The scene was a spectacle which con- tained the conflict necessary to drama plus colorful 48 cost laws The col: the 193 sho aak the E 399 not Dla 49 costuming with the Judgaain bright scarlet robes, the lawyers in dark gowns, and both tOpped with dusted periwigs. The whole combined a drama of conflict and a pageantry of color with the solemnity of court--fit entertainment for those who could spend their mornings in the halls of Westminster.1 For some spectators the law cases were more than Just a show: they were sources of income. Pamphleteers and ballad- makers scoured the courts for tidbits to be later hanked in the streets. Sanitonella, a law clerk in Webster's The M's 14!! 9193.: cautions the court officers to ”take speciall care, that you let in/No Brachigraphz men, to take notes.” The courts, he continues “cannot have a Cause of any fame” but it is immediately followed with “scurvy pam- phlets, and lewd Ballets."2 But for writers of a more philosophic beat, the courts stood as a symbol of man's post-lapsarian nature, a living tableau of the worst of human nature, its contentiousness, pomp, and greed being constantly if unwittingly exposed on the legal stage. had man remained innocent, had sin never entered the world, there would have been no reason for law courts in the first place. Not surprising, then, that the writers of an age famed for its litigiousness singled out the most visible members of courts, the lawyers and Judges, for special attention. Character writers, pamphleteers, poets, and dramatists, all Joined to limn character sketches or full- blown portraits of the greedy, crafty lawyer growing rich and c the 1 Pets: Bad* Elia levy fart; Peri: lens that the 1 thou; thee: 50 and overbearing at the expense of miserable human beings. One historian of the lawyer in literature claims that the lawyer entered “the realm of poesy with a bound“ in the person of Theobald, Alexander Pope's ”King of Dullness.”3 Had the historian begun his study earlier, in the Elizabethan-Jacobean age, he would have found that many lawyers preceded Theobald into the pages of poetry: and further research would have shown that the writers of that period, conscious as they were of the particular legal prob- lems before them, were Just part of an anti-legal sentiment that stretched back to the Iiddle Ages, a sentiment that saw the lawyer's dullness as the least of his many shortcomings. Much that seemed wrong with sixteenth-century England, though by no means all, centered on economic problems: and these problems often swirled around one type of land dispute or another which needed a lawyer's expertise to settle. Both tenant and landlord needed a lawyer in cases of rack- renting or enclosure. Both buyer and seller needed a lawyer in the sale of property to ascertain proper deeds and correct boundaries. The dissolution of the monasteries dumped thousands of disputed acres on the market, thereby creating a legal quagmire for buyers and sellers of land but a paradise for lawyers. all this legal activity came at a time when the land law was in a state of chaos and the number of lawyers was increasing, conditions which brought the charge that lawyers were the source of many of the country's ills because they fomented lawsuits for their own and/or that! tenat chat? case bene- I130 tice zero the Eagle 18:7. 0D t1 thert HO'et Ofteu its 1 51 their landlord-employer's benefit. Deeds and rights of tenantry which had lain undisturbed for centuries were challenged in the courts: and, no matter which side won a case, the lawyer was sure to be paid, hence the only certain beneficiary of a law case. The lawyer's reputation fell also when he defended in court usurers or the usurious prac- tice of merchants, defenses which seemed to make him a mercenary in the army of the rich against the poor. ‘Indeed, the lawyer appeared to be at the center of so many of England's economic problems that limiting the number of lawyers was seen as a practical solution to those problems on the grounds that the fewer the number of troublemakers there were the fewer the number of troubles there would be. However inaccurate the diagnosis, sixteenth-century England often regarded the lawyer as a source rather than a sign of its ills. Early in the Renaissance, Sir Thomas lore, himself a lawyer and Lord Chancellor, voiced the most general charges against lawyers by banning them from his ideal commonwealth, Utopia. a century later, Robert Burton, usually self- controlled in his ”anatomy” of people, let fly a tirade of specific indictments against lawyers which for its vehemence and particularity deserves quoting. Lawyers, he says, are a general mischief in these our times, an insensible plague, and never so many of them: which are now multiplied (saith lat. Geraldus, a LR??? mam.) as so man locusts, not the rents but the la ues of {Fe untr—T—E-for—the-ios par §_§u§3?c ous, Fid:_TitI—I33§ gEneration of men: a purse-milking iitioET_3EEIifiorous company: ESFned vultures, who live by violence and bloodshed, thieves and seminaries of discord: worse than any pollers by the high-way Burt cust trit bent Dec; Eng] COM ‘11: Yet “at 52' side, gold hawks, gold-borers, money-fishers, temple thieves, market Jinglers, horrible wretches, slave- traders, etc., that take upon them to make peace, but are indeed the very disturbers of our peace, a company of irreligious Harpies, scraping griping catchpoles (I mean our common pettifoggers: I love and honour in the mean time all good laws and worthy lawyers, that are so many oracles and pilots of a well-governed commonwealth), without Judgment, that do more harm, as Livy said, than sickness, wars, hunger, diseases: and cause a most incredible destruc- tion of a Commonwealth, saith Sesellius, a famous civilian sometime in Paris. Burton continues for two more pages in the same vein, ac- cusing lawyers of covetousness, troublemaking, using legal tricks to subvert Justice, delaying suits for their own benefit, and generally sowing consternation amongst the people. After praising Switzerland, Fez, and ancient England as places where legal suits were quickly and Justly brought to a close, he concludes with ”Christ's counsel concerning law-suits": ” gree with thine adversary quickly.” The accusations are harsh and the epithets many: yet Burton, and More before him, but echo and summarize their contemporaries' opinions of lawyers. That these attacks were part of literary convention, as Professor Notestein concludes,5 is true: that they are directed against a profession sworn to uphold Justice but peopled with frail humans is expected. Yet the frequency and particularity of the indictments indicates the writers kept a close eye on the world around them. The modern Englishman may pride himself on living in a nation of laws, but his ancestor took little relief in that fact and saw the vast number of laws and lawyers as too constant and visible reminders that God's wrath hovered dangerously low over his satt pans Rich Btsh are call scie Derh Vets Coke Sir. fact dise; Prof 'Ttt. hate; Once 13 :1 to t! and 5 Just, the ‘ the D Into I 53 his island. Not all lawyers, of course, were forced to dodge the satiric shafts of the writers. Host writers, like Burton, pause to admire “all good laws and worthy lawyers.” Barnaby Rich respects the "better sort of the learned lawyers."6 Bishop Stubbes, noting the abuses of his age, admits lawyers are ”most necessarie” and that “a man can serve God in no calling better than it,” provided he have a ”good con- science.'7 Ben Jonson, the scourge of lawyers, Jaundiced perhaps by his own bouts with the law, wrote commendatory verses to such famous lawyers and Jurists as Egerton, Bacon, Cake, Selden, Hayward, and an honest ”Counceliour,” perhaps Sir Anthony Benn, lawyer and Recorder of London, despite the fact that some of those suffered from the same avaricious disease which Jonson diagnosed in the rest of the legal profession. But, once the amenities were attended to, the writers laid to with all the gusto a a person indiscrimi- nately swatting his way through a swarm of bees. Having once announced the caveat that they had no particular person in mind, they proceeded to pillory anyone remotely attached to the legal profession. Not only the barrister, attorney, and solicitor, but also the notary, scrivener, clerk, Justice of the peace, and Judge had to endure the lashes of the writers' wit. If there was one thing the Elizabethan feared more than the plague, the Spanish, and the POpe, it was being drawn into a lawsuit. The litigiousness of the age was proverbial, and star the this that how 1‘83. pat Bis “an sen eat: no in he' the 54 and authors never ceased warning their readers to beware the snares of the law courts where the only sure beneficiary was the lawyer. Bishop Stubbes, admitting the necessity of laws, courts and lawsuits, nevertheless adds ”this proviso, that it is better, if the matter may otherwise be apeased at home, not to attempt lawe, than to attempt it.”8 The ”proviso” was so self-evident that Stubbes saw no reason to elaborate on it. Thomas Dekker recommends patience as the greatest enemy to law That can be, for it doth embrace all wrongs, And so chain up lawyers' and women's tongues.9 Bishop Hall seconds that advice, saying that the "Patient flan,” when trapped into a lawsuit, rejoices in an ”unJust sentence” and is "more than heroicall” in refusing to become embroiled in a counter-suit.10 Even being in the right is no reason to trust to the ambiguities of the law. Witgood, in Iiddleton's £.I£££E.£2.EE£EB.£22 919 933, laments in legal metaphors that he who ”sets out upon his conscience ne'er finds his way home again: he is either swallowed in the quicksands of law quillets, or splits upon the piles of praemunire.”11 Best to avoid law altogether was the advice, but to follow that counsel was another thing. As one epigrammatist prephesied, “Thou wilte lerne the lawe, where ever thou bee. Lycolnes In, or Lincolne towne, both one to thee."12 The causes of English litigiousness were manifold, but Enizabethan authors preferred to lay the blame at the thre sol! dire writ : sc citt to u 9111‘s hour: of 0' docm Start retux afte: 'Dulc °n hi Vidal 11mj “bu. 55 threshold of the lawyer's office, more particularly at the solicitor's or attorney's, for it was they who dealt directly with the clients, not the barristers. If the writers are to be believed, around every London corner stood a solicitor or attorney ready to trip up an unsuspecting citizen on a long forgotten law, on trumped up charges, or to urge him into litigation that he otherwise would not pursue. Sir Thomas Wilson complains of pettinggers who roam the countryside ”seaking meanes to sett their neigh- bours att variance whereby they may gayne on both sides” and of others who, upon hearing of an inheritance, ransack the documents to find ”some pretence or quiddity” that will start a legal suit.15 Thomas Dekker tells of a poor farmer returning from Westminster with little else than his horse after having gone to law ”for certain Acres, about which he would never have ventured his money,” except that “his .Oouncell whetted him on, by telling him the matter was clear on his side, and that all the Law in England, could not take it from him: . . ."M Lopez, the title character of Beaumont and Fletcher's The Seenish Curate, describes the lawyer Bartolus as one that entangles all men's honesties, And lives like a spider in a cobweb lurking, And catching at all flies that pass his pit-fall Puts powder to all states to make 'em caper-- Iiddleton uses the same image in The Roaring §££l when Sir Alexander asks his attorney, Trapdoor, to ”Play thou the subtle spider” in seeking to legally entrap his victim:16 and, much earlier, John Heywood expanded that image to over 70 '9 ha '1 Be th ah? hat the St, the REE} “fiat 56 70,000 lines of ponderous poetry in a work entitled The Seider ehe The 3.2-17 County fairs were well-stocked ponds for enterprising attorneys fishing for clients. Not only were they filled with rustics waiting to be gulled: but there was also, nearby, a pie-powder court, such as that presided over by Justice Adam Overdo in Jonson's Bartholomew Thee, where the catch was quickly gutted. The fairs pro- vided opportunity for (or at least suspicion of) cheating on either the seller's or buyer's part, and the attorney had only to convince the offended party to go to court to get his fee. The main problem of the lawyer, then, was that of a salesman, to sell a law case: and that charge, an earlier version of that implied by the modern “ambulance-chaser,” has plagued the legal profession since its inception.18 The lawyer was also feared when he worked in collusion with others, notably a landlord, a usurer, or a merchant. Dealings with any of the three involved a legal contract or a lease and, by implication, a lawyer. Land squabbles were the most frequent subJects of the satirist’s pen and, prob- ably, the most popular of legal cases. Though lawyers handled cases from all classes, ”most of their work was with the landed families,"19 and most of that work consisted of straightening out-or making crookedo-the titles and boundaries of the land belonging to those families. Often the lawyer was a steward of a manorial court, charged with keeping court rolls and assessing tenants' rents. under- neath him was a solicitor ”who had charge of the coils of u“Sation with tenants and others in which every landlord was as 1 tea: PTO? eptt dUCE Fran Knav Fran} and R OVQr 57 was continually enmeshed."20 With the lawyers serving more as battering rams than arbitrators in the feuds between tenants and landlords, it is not surprising that the legal profession bore the onus for the innumerable legal suits. 'Pennyboy Junior, in Jonson's The Steple eT News, epitomizes the landlord-lawyer relationship when he intro- duces his attorney, Picklock. Here is domine Picklock, My man of law, solicits all my causes, Follows my business, makes and compounds my quarrels Between my tenants and me: sows all strifes, And reaps them too: troubles the coungfy for me, And vexes any neighbor that I please. Franklin, a sea—captain in Anzthing for e Qeiet Life, curses Knaves-Bee, the lawyer, as he passes by. A pox upon him, a very knave and rascal, That goes hunting with the penal Statutes: And good for naught but to perswade their Lords To rack their Rents, and give o're House-keeping: Such caterpillars may hang at §heir Lords ears, When better men are neglected. Franklin echoes tenants' complaints but, also, has some of his own because he is put out of work. Lord Beaufort, his and Knaves-Bee's employer, explains that land, not trade over the waters, is his main concern now: Know sir, a late Purchase Which cost me a great sum, has diverted me From my former course-~besides Suits in Law Do every Term so trouble me b5 Land, I have forgot going by Water. 3 Knaves-Bee's machinations upset tenants, sea-captain, and Lord alike. ' The specific charges against the landlord-employed lawyer are rarely more detailed than those against Jonson's lucklock or Webster's Knaves-Bee: they hunt with penal st ts ec Pt st p1 1h ex re: th ma ; on 981 in! "s 58 statutes for their employers, as Franklin says. The charge is general enough, but behind it lies much of the social and economic turmoil of the sixteenth century which made the Picklocks and Knaves-Bees subJects of bitter invective. The sixteenth century saw a “massive transfer of prOperty taking place at a time when the land law was in some confusion, when no central land registry existed, and when it was extremely easy to make secret encumbrances of title. The ”24 The dissolution of result was a lawyer's paradise, . . . the monasteries dumped thousands of contested acres on the market: the enclosure movement brought untold hagglings over property rights and titles: and the buying up of landed estates by London businessmen seeking gentry prestige initiated disputes over boundaries which had been only vaguely delineated centuries before. The opening of the monastery lands, alone, was enough to keep most lawyers busy through the sixteenth cen- tury. The land reverted to the king and was either kept by him, sold for royal revenue, or passed out to his friends or creditors. It was one thing to acquire or sell an abbey and its lands: it was quite another to ascertain Just what land was involved. The abbey's original deed was probably drawn up in the Middle Ages, a time of comparative legal naiveté' when two or three written pages satisfied the law's require- ment for certain ownership. In the centuries that passed, the original deed was amended as new land was acquired and old sold off: and the value of the documents depended on the 59 knowledge and diligence of the attorney who drew them up. Their value was further qualified by the fact that boundaries were defined by the location of trees, rocks, or monuments that either no longer existed in the sixteenth century or had been moved or possibly destroyed by an unscrupulous neighbor or an act of God. These problems were doubled by the fact that the deeds could be contested. As there was no central land registry to validate ownership, the authenticity of deeds could always be called into question. Adding to the confusion was that the written word, a hallmark of advanced civilization, was also a boon to knavery because that word could also be lost, stolen, or forged: and medieval monastics, let alone laymen, were not averse to the most irreligious practice of forgingdeeds.25 Complicating the issue was the chaos of the land law itself. The issuance of original writs, mostly “concerned with rights in land and the incidents of tenure,'26 was stopped by the reign of Edward I. Subsequent generations had to adapt their legal dealings to old writs which had not kept pace with the changing methods of land ownership or transference of property.27 Consequently, the land law became ”a mass of commentary. Packed with legal learning, . refined distinctions, and ingenious reconciliations."28 “The older English land law,” one scholar concludes, ”was as intricate and elaborately artificial a body of rules as the world has ever seen."29 Compounding the confusion was the lack of any clear-cut method of “conveyancing,” the trans- ferring of property. Authorities supplied books for the C01 88‘ 90‘ pt hr la SC st Th to 3U or 60 conduct of litigation, containing specimens and forms neces- sary to the case. But in non-litigious business, such as conveyancing, models but not forms were supplied. Each piece of prOperty had its own unique subtleties and encum- brances, and they had to be accommodated to the law of the land not the form of the writ.30 The chances of error were manifold, and they were magnified by incapable attorneys drawing up deeds and by the number of deeds issued on a particular plot over the centuries. The dissolution of the monasteries, with its accompanying legal problems, provided revenue for both the monarch and the lawyers who tried to sort out those problems. The redistribution of monastery land tested, often too strenuously, the consciences of lawyers and commission members sent out to administer it. Some Church land was stolen amidst the confusion surrounding monastery deeds. That land, known as ”concealed land,” could be kept ”concealed” by bribing the commission members, provided they did not covet the land themselves. A cynical Somerset doggerel, referring to commissioners and lawyers, announced Wyndham and Horner, Berkeley and Thynne When the monks went out, they came in.31 The process could also be reversed by bribing the officials to declare land "concealed” and then to buy it for a nominal sum or accept it as a gift. The Court of Augmentations, instituted by Cromwell in 1536 partially to oversee the disposal of monastery lands, soon became swamped ”by the mass of complaints of tenants and other altercations concerning 61 crown lands and revenues, . . ."32 Far from stOpping the swindling, the Court only limited the number of swindlers primarily to its members: “the division of monastic spoils presented an obvious opportunity for peculation and graft: more often than not the acquisitibn of a few coveted manors simply whetted the appetite for more.”33 Though the king and Cromwell received bribes for the spoils, the greatest beneficiaries were the Court members with privy information on desirable tracts: and the fortunes of such legal families as the Sackvilles, Onleys, Southwells, Henleys, and Bacons had their beginnings in Augmentations.34 The trafficking in concealed lands was still popular at the end of the sixteenth century. Joseph Hall records how Hatho, an unscrupulous lawyer in Virgidemiarum, raised his station from ”one leane fee” a Term to be lord of many manors. Hatho, he says, lay now in steed of those his simple fees: Get the fee-simples of fayre Manneryes. What, did he counterfeit his Princes hand, For some streave Lord-ship of concealed land? 0 O O O O O O O O 0 0 0 0 O 0 O O O O 0 O O 0 Or hath he wonne some wider Interest, By hoary charters from his Grandsires chest, Which late some bribed Scribe for slender wage, Writ in the Characters of another age, That Ployden selfe might stammer to rehearse, Whose date ore lookes three Centuries of yeares. Nashe, Dekker, Jonson, and Middleton all make allusions to the corrupt practice}6 The area for land disputes spread far beyond monastic acres. Landlords, caught in a period of inflation and burdened with fixed rents negotiated centuries earlier, 62 hired lawyers to help them squirm out of that legal and economic vise. Rack-renting was a notorious way out of the dilemma, but that was Just one of many avenues of escape. Another was to scour ancient laws and ”to enforce the payment of every obsolete and obsolescent feudal due for which a legal case could be extracted from medieval records.”37 A third was to exact heavy entry fines from copyholders (persons who held their estates by copy of court roll) taking possession of their land.38 Still another was to find some pretence to deny cOpyhold and force the tenant into a lease- hold, whereby rents could be negotiated every few years and kept in line with the vicissitudes of the economy. Richard Sherfield, an attorney for the Earl of Salisbury, thought he was Just furthering the Earl's interests by harassing tenants. A commission investigating his actions concluded that ”by enforcing such strict penalties and law quirks . . . he hath Justly drawn on him the hate and ill opinion of that part of the country" in which he worked.39 Lawyers resorted to legal and illegal devices to increase their own and their employers' wealth: and, because they were in the forefront of the legal battles and because it was more prudent to attack them rather than their powerful employers, the lowly lawyer received the brunt of the attack. It is no wonder that Lethe, a character in liddleton's Michaelmas Term, searching for a simile to fit Rearage and Salewood who are lecherously ogling his whore, describes them as “like two crafty attorneys, [who] finding a hole in my lease, go about .40 to defeat me of my right. Put in the context of attitudes le 00 63 towards lawyers, his fears are more than Justified. That same context adds bitterness to Timon's cry of Crack the lawyer's voice That he may never more false title plead, Nor sound his quillets shrilly.41 The fear of lawyers finding holes in leases was in- creased by the complexity of the leases themselves and the number of attorneys searching out the defects. The financial and land arrangements involved in arranged marriages, for example, “witnessed an extraordinary growth in their size and complexity” during the late sixteenth and early seven- teenth centuries.42 Lawyers, paid by the sheet, had a natural urge to lengthen the documents and also to close loopholes against further litigation. As a result, docu- ments swelled from one or two pages to the largest, ”which cover[ed] about 300 square feet of parchment."43 John Hordes complained at the beginning of the seventeenth century that ’in these daies there gas more words to a bargaine of ten pound land a yeare then in former times were used in the grant of an Earledome."4 The enlarged documen- tation certainly tried to prepare for any future legal contingencies, but the rub was that the more words, the more chance for error and contention. There was no telling what word or comma, no matter how carefully set-down, might prove a future traitor to a crafty attorney. SirWalter Raleigh, himself a lawyer, lost his estate to the king because of ”a flaw in the conveyance,“ a flaw “so gross that men do merely ascribe it to God's own hand that blinded him and his counsel.“‘5 The practice of searching out leapholes became 0h 64 so prevalent that an incredible market of lands having doubtful title was developed. PeOple bought the research done on these titles with the intent of the buyers to pur- sue lawsuits against them.46 Added to the woes of tenantry and to the legal arsenal of lawyers was a small but havoc-wreaking invention of sixteenth century science-~the surveyor's rod. Armed with that weapon, the lawyer turned surveyor, trying to establish once and for all the true boundaries of disputed acres. But whether acting honestly or not, the lawyer was sure to arouse new arguments over old titles. Tenants cried out against the ”newaangled technique:' and a farmer in John Horden's The Surveyor'e Dialogue complains to the surveyor that ”rents are raysed and lands knowne to the uttermost acre, fines inhaunced farre higher than ever before the measuring of land and surveying came in.“47 It was probably the thought of some surveying lawyer in the neighborhood that caused Robert Burton to warn, poetically, that Should crafty lawyer trespass on our ground, Caitiffs avaunti disturbing tribe away! Unless (white crow) an honest one be found: He'll better, wiser go for what we say.48 The fact that the surveying rod was in the hand of the already distrusted and despised lawyer only confirmed to tenants that it was an engine of the devil. Trouble also arose when the lawyer became a landlord himself. Because he was close to the legal and economic problems of his employer the lawyer was in a position to bid on land put up for sale. Also, the employer, often 65 hard pressed for ready cash, paid his lawyer by granting him long leases for his own use, ”and the lawyer knew how to make such leases grow in value."49 William Smallshanks, the wastrel protagonist of hehfhhhez, laments his dealings with an attorney, aptly named Throat, who has ”swallowed at one gob/For less than, half the worth“ the land Smallshanks 50 Shakespeare also comments on the received in patrimony. problem. Hamlet, early in the final act of his tragedy, muses on the skull of a lawyer turned land-Jobber. This fellow might be in his time a great buyer of land with his statutes, his recognizances, his fines, his double vouchers, his recoveries. Is this the fine of fines and the recovery of his recoveries, to have his fine pate full of fine dirt? Will his vouchers vouch him no more of his purchases, and double ones too, than the length and breadth of a pair of indentures? The very conveyances of his lands will scarcely lie in thgi box, and must th' inheritor himself have no more, ha? By the time Hamlet spoke, the lawyer had become infamous for his land acquisitions, and he was seen as a predator gobbling up estates as investments with no concern for the tenant-landlord reciprocity that supposedly had held from feudal times. However ideal rather than real that reciproc- ity was, tenants and writers accused the lawyer-landlord of having only mercenary interests, a fault that was hastening the end of the feudal way of life and its system of co-responsibilities. In the favorite metaphor for the state, the stomach of the body politic was gorging itself but not passing on sustenance to the rest of the body.52 Hamlet's speech has been analyzed as a memento mori53 and as a full-scale meditation,54 but it is also a light- hearted attack on a conventional figure of satire, a moment 66 of comic relief before the tragedy rushes to its conclusion. Yet it is particulary apt relief for a tragedy, for Just beneath the lightheartedness is a serious and tragic tone as the landlord-lawyer symbolized much that was thought wrong with the country and represented the executioner of an old way of life. The lawyer's death and his futile attempt to master his own fate, only to end up in a coffin like every- one else, are fit precursors to Hamlet's own tragic end. But more like Claudius than Hamlet, the lawyer represents much that was rotten in England if not Denmark: and his demise prepares us for Claudius' death. The speech, then, is more than comic relief, more than a digression: it is dramatically and ironically appropriate for a character soon to meet his own treacherous death while ridding the kingdom of its stench. The very existence of so many grasping and crafty lawyers was, it was thought, a national tragedy in itself. The lawyer's image became even more tarnished when he Joined forces with an unscrupulous merchant or usurer. The rustic heir bilked of his estate by the sharp practices of London merchants was a commonplace of Elizabethan and Jacobean literature. That the usurer had both the law and lawyers at his back did more to lower the esteem of the legal profession than raise the prestige of usury. Such literary lawyers as Throat and Lurdo55 admit to supple- menting their income through the vile practice of usury, and Professor Stone has shown that they had their counterparts in real life with lawyers, government officials, and city 67 magnates leading the list of amateur usurers.56 Thomas Lodge, writer and lawyer, denounced the practice of using legal machinery and subterfuges to make creditors miss their payments and, thus, lose their bonds and security.57 One such usurer engages his debtor in conversation until after the hour the money is due. Then, the usurer not only refuses payment in order to collect the larger bond he holds for late payment but bribes the debtor's lawyer and the Judge to throw the case.58 Few lawyers matched the audacity of the real-life Hugh Donvile who, in league with a usurer, persuaded one poor soul to put his house in Donvile's name as security for a loan from the usurer. Donvile than paid the lender, later accepted payment from the householder but refused to return the title, trusting to his legal abilities to keep both house and money. Donvile prevailed.59 lerchants, anxious to reap the benefits of usury but to avoid its immoral sting, lent money under the pretext of selling goods. Quomodo, the linen draper of Michaelmas Tehh, typically and ingeniously, plots the overthrow of a young heir, Raster Easy. Through Quomodo's accomplices, Easy is first pushed into debt, forced into usury, and ultimately tricked into co-signing a note for Quomodo on cloth supposedly worth £200. The cloth is to be sold for money: thus, the merchant avoids the charge of actually lending money. The cloth proves worthless: and, when the note comes due, Quomodo is missing, which results in Easy's arrest for debt as the co-signer. The transaction is legal, Ci 68 having been drawn up by a scrivenor and overseen by Quomodo's lawyer son, Sim. With Easy under lock and key, Quomodo dances with glee in the thought of enJoying Easy's land's Th9 land's mine e e e , My plot's so firm, I dare it now miss. How I shall be divulg'd a landed man Throughout the Livery: . . . o-Whither is the worshipfull Master Quomodo and his fair bed-fellow rid forth?--To his land in Essex:-Where grow this pleasant fruit? says one citizens wife in the Row.-- At Master Quomodo's orchard in Essex. (III.iv.J-l7) Delirious with his successful knavery, he presents himself as a model for future lawyers: "Admire me all you students at the Inns of Cozenage” (il.iii.441-42).6° Most merchants' devices were not as elaborate as Quomodo's, but they were similar in that the creditor was to take “commodity,” goods, in lieu of money. The goods were to be sold for the actual cash, which never matched their assessed value.61 The usurers and merchants deserved the censure they received, and the lawyers fell further in popular esteem by their“ association with and upholding of such notorious practices. Lodge, who despised usurers, nevertheless blamed lawyers, who handled their cases, and corrupt Judges for allowing usury to continue.62 Without legal enforcement of their contracts, usurers could not prosper. To sort out the causes of Elizabethan-Jacobean litigiousness is like trying to unscramble eggs: but, to the writers, politicians and even lawyers of the time, the prime cause was said to be the sheer number of lawyers. Sir Thomas I1 th un th ‘H‘ mm C m. Ch: “D W Lo: on 181 3M and the ‘13 1n 69 Wilson complains that ”one of the greatest inconveniences in the land” is that ”the number of Lawyers are so great they undoe the country people. . . ."63 John Marston describes the revels as crowded and pestered ”as the countrie is with Atturnies.'64 Robert Burton sees their number as ”an insensible plague, and never so many of themi which gzg_gg! multiplied . . . 23 52 Egg; locusts . . . Egg plagues of the Country.”65 George Cressingham, in Anything for g Quiet Life, is advised by his father's steward, Saunders, to seek a fortune by the most popular means, the study of laws ”the Law that takes up most a' th' wits i' th kingdom, not for most good, but most gain."66 Saunders, as a steward, was legally trained and knew whereof he spoke. Lawyers and politicians agreed. William Hudson, a Star Chamber barrister, charged: “In our age there are stepped up a new sort of people called solicitors . . . who, like the grasshoppers of Egypt, devour the whole land.. . ."67 Lord Keeper Egerton referred to them as ”caterpillars del comilonw'eale.“68 Another Judge charged that the increase in lawsuits squarely rested with the ”multitude of attorneys . . . who are ready at every market to gratify the spleen, spite or pride of every p1aintiff.”69 In 1557, 1574, 1615, and 1631, the Inns of Court barred attorneys from studying there in an effort to reduce their number and preserve the social gulf between barristers and attorneys. Parliament also passed laws to reduce the increasing number of attorneys in 1402, 1411, 1455, and 1616. In 1605, it passed a specific 70 law entitled ”An Act to Reform the Multitudes gag Hisdeameanors of Attornies.”70 Later in the century Hugh Peters compared England detrimentally to Holland where, because of few lawyers, Justice ran quickly and smoothly.71 However one-sided the view that lawyers caused litigation, that belief persisted.72 Writers also acknowledged that the quarrelsome nature of the English spurred as many suits as did lawyers. Some of the passengers on Barclay's ghip of {2213 are madmen who 'seke the extreme of lawe.' But their smiles turn dour when they find that ”oner the lawyers catcheth the auantage.”73 A century later, liddleton echoes that same theme: “All that fall out amongst themselves, and go to a Lawyer to be made friends” are fools: and there are about forty such people a day.74 Nashe tells us that ”Lawyers cannot devise which way in the world to begge, they are so troubled with brabblements and sutes everie Tearme, of Yeoman and Gentle- men that fall out for nothing.'75 Throat, Prate, and Crispiano, all disreputable lawyers,76 have to beat off clients clamoring at their doors. Westminster Hall, according to John Smyth of Nibley, has become “our cockpit of revenge,” “the civill warres of my dayes there rageinge, wasting more treasure and time than the disunion of the houses of York and Lancaster ever did the unitinge.”77 The causes of the litigation were as many as the Deeple. The Jealousy of Leonora, in The Devil's Law 9333, gives rise to the play's title and much of its action. 71 Onion and Juniper, in Jonson's The Case is Altered, react to Count Ferenze's calling them 'hinds'i ”Hinds sir," says Onion, "sblood, an that word will hear an action, it shall cost us a thousand pound a piece, but we'll be revenged." (V.ii.177-78). liddleton's Sam Freedom is ready to avenge a box on the ear by loneyglove through a lawsuit. "I am not such a coward,“ he contends, to strike again, I warrant. My ear has the law of her side, for it burns horribly. I will teach him to strike a naked face, the longest day of his life. 'Slid, it shall cost me some money, but I'll bring this box into the chancery.78 added to these causes was the timeless, if not time-honored, device of using the law to defeat its own ends. Breton's villain, 'lachivil,‘ instructs his son on how to defraud a business partner. First, offer to buy him out at a ridiculously low price. When if he will not take what thou wilt give him: To course of law, for his best comfort drive him: $2.332: 2:53:23: :3: ti‘hfi’“;§t:2399 The law, advises lachivil, because of the length and cost of a suit, will deliver what sharp business practice would not. To Iachivil, law had become part of the game of life and should be freely resorted to in winning that game. Some historians agree in principle if not in practice with lachivil. Professor Stone sees law courts as part of the English civilixing process, transferring “All the pride, obstinancy, and passion that hitherto had found expression in direct physical action . . . to the dusty processes of the 1asx"8° The Dutch historian, Johan Ruininga. speaking of man 72 in general, views the law process as a civilized encrust- ation on man's primitive, playful nature, which, he con- cludes, should cause man to be labeled homo ludens, man the 81 player, the sportsman. Some Elizabethans concurred. Zuccone, in Harston's 222.2212: suggests going to law; and his companion Hercules replies, ”Why that's sport alone. What though it be most exacting?"82 But whatever the ultimate cause or combination of causes which sparked Elizabethan lawsuits, the writers of that age concentrated their venom on the most visible and certain beneficiary of those cases, the lawyer. Ariosto, one of the few honest lawyers seen on the Elizabethan- Jacobean stage, recognizes that a woman's Jealousy has caused a lawsuit: nevertheless, he also blames the attorney, Sanitonella, for accepting the suit and bringing it to court. Addressing the attorney, Ariosto rages, Why you whoreson fogging Rascall, Are there not whores enow for Presentations, Of Overseers, wrong the will 0' th Dead,. Wicked Divorces, or your vicious cause Of Plus guam satis, to content a woman, 83 But you must find new stratagems, new pursenets? ”The Devill take . . . such Suits,” he concludes. The lawyer's first allegiance, it was held, belonged to Justice not his clients and the lawyer's duty was to weed out vexatious cases from the litigious soil of England.84 Nicholas Bacon, as Keeper of the Great Seal, implored his fellow lawyers to strive for Justice and ”not to accept causes for profit, lure clients into litigation for their own 8313: or take advantage of technical loopholes."85 ”SI 11! ho; 73 Few lawyers rose to Such a noble challenge: and, when they did, they were regarded as a “miracle.” Crispiano and Sanitonella, Webster's unscrupulous barrister and attorney, discuss the honest lawyer Ariosto in tones usually reserved for a saint. Crisp. There he stands a little piece of flesh, But he is the very miracle of a lawyer: One that persuades men to peace, and compounds quarrels Among his neighbors, without going to law. San. And is he a lawyer? Crisp. Yes, and will give counsel In honest causes gratis: never in his life Took fee but he came and spake for it: is a man Of extreme practice: and yet all his longing Is to become a Judge. San. Indeed, that's a rare longing with men of his profession. I thin he'll prove the miracle of a lawyer indeed. Ariosto, however, is an exception: and lawyers are usually given more mundane labels than "miracle.” Dekker lists lawyers among his ”catch-poles,” and the Elizabethan term ”high-lawyer” refers to highwaymen who robbed while on horseback.87 The lawyers in drama are often given symbolic names reflecting their shrewd, contentious, and avaricious natures: Knaves-bee (Anything for 2 Quiet Life), Throat (Ram-Alley), Tangle (The Phoenix), Bramble (Eastward Hoe), Practice (The Magnetic Lady),,Picklock (The Staple gf News), Dumb-Knight), and Dampit, “trampler of law” (A_Trick tg_Catch the 01d One). The government thought as little of lawyers as did the writers. In 1602, needing men for impressment 74 into service, the government ordered ”refuse sort of people" to be collected from the ”plaie howses, Bowling Alleys, and Dycing howses.” Lawyers were among the group found and impressed.88 The foregoing general discussion of the lawyer in Elizabethan-Jacobean literature has sought to establish certain points. One is the pervasiveness of the lawyer in the literature of the time, both as a character and as a subJect for allusions and metaphors. Not only is he a character in plays, almost always a despicable one, but he is also used, as in Hamlet, to represent the degeneracy of the age. Also seen is the bitterness aimed at the lawyer and the low esteem in which the legal profession was held. Those lawyers who receive most of the attacks are, it is true, solicitors and attorneys, not barristers. All the characters listed immediately above, for example, are solicitors and attorneys: and the outcry against the number of lawyers was aimed at them, not barristers. However, Littlewit, in Bartholomew gag, is a ”proctor,“ the equivalent of a barrister in ecclesiastic courts. The satire against those two indicates that the higher rank of lawyers was also under attack. In fact, the writers rarely distinguish.legal figures by their proper titles, instead lumping them all under the general term, lawyer. Whatever distinctions lawb yers made among themselves, writers saw them all cut from the same cloth. The general charges against lawyers were that they were 75 at the center of the litigiousness of the age, urging peOple to go to court so that they could reap legal fees. Lawyers also worked with landlords in challenging deeds and seeking out loopholes in leases to the detriment of tenants and the poor. Knowing the chaotic state of English land law, the lawyer was in a position to harass the citizenry with vexatious cases. He also defended cases which writers thought were patently immoral if not illegal, such as those involving usury. In all, the writers see the lawyer as benefiting from the economic and social problems of the time, as reaping a fortune out Of the misery of others. Far from using the law as an instrument of Justice, it was 1 charged, he used law as rules for a game, a game played for his own profit. No wonder Hall sees as one of his ”Wise . lan's” outstanding characteristics that “He is his own lawyer."89 Nowhere in Elizabethan-Jacobean literature do we find a serious treatment of a lawyer caught in a conflict between what is technically legal and what is Just, between serving himself and his family and serving Justice. The lawyer had become a stock character awaiting the satirist's thrust, and it is easy to apply to all writers L. C. Knight's estimation of Hiddleton's views on lawyers: ”exciting discovery . . . [we find] that lawyers are concerned more for their profits than for Justice."90 But such an estimation should not blind us to the realization that beneath the clichecridden attacks were serious social and economic problems perplexing the Englishman. The lawyer, enmeshed in those problems, 76 rose above being merely a stock character and became a metaphor and symbol for much that was thought wrong with England. It is no accident that Shakespeare has Hamlet, surrounded by death in ”rotten Denmark,“ ruminate on a grasping lawyer's skull. The general charges against lawyers dealt with so far were rooted in contemporary problems. Still to be seen are the more specific and personal attacks on lawyers and how those attacks reflect the development of the law and legal profession. CHAPTER III SERVANTS OF MAMMON The sight of a lawyer with surveying rod in hand or of another pouring over a deed raised apprehensions in many Elizabethans, creating that vague gaggt which has been part of the general fear felt toward professionals and specialists from the medieval cleric to the modern psychiatrist. Laymen have always viewed specialized knowledge with a mixture of awe, scepticism, and, when the knowledge proves fruitless or inaccurate, with superior and sometimes comic contempt, witness the alchemist. The Renaissance lawyer proved no exception to the rule: the bureaucracy in which he worked, the mysterious legal machinery he managed, his specialized learning couched in esoteric language, law-French, all bred an uneasiness in a client certain that the scales of Justice were quite enough to favorably settle his case. But the charges against lawyers run deeper than a vague uneasiness. Like the symbols drawn in an Elizabethan portrait, they are quite precise, though often not explained. That is, for example, lawyers were continually accused of accepting bribes: but the details of the bribes--who got them, how much they were, what the lawyers did with them-- were mostly left unexplained. Many of those details, self- evident to the Elizabethan, have been lost to modern eyes 77 78 because of the maJor overhaul of the legal system by nine- teenth century law reforms, which eliminated many causes of complaints, and because of the shift in economic, social, and moral values which accompanied the rise of capitalism, on the one hand, and the influence of Puritanism, with its acceptance of worldly success as a virtue, on the other. The lawyer represented modern attitudes toward those values and was attacked by writers who continued to cling to medieval views. To be unaware of those changes is like interpreting a medieval or renaissance painting with no idea of iconography. . In the opening speech of the “Inductio” to Middleton's Michaelmas Term, the title character heralds the beginning of the law year, from a lawyer's viewpoint. Lay by my conscience, Give me my gown, that weed is for the country: We must be civil now, and match our evil: Who first made civil black, he pleas'd the devil. So, now know I where I am, methinks already I grasp best part of the autumnian blessing In my contentious fathom: my hands free, From wronger and wronged I have fee, And what by sweat from rough earth they draw Is to enrich this silver harvest, Law: And so through wealthy variance and fat brawl, The barn is made but steward to the hall. In this speech, Middleton makes a number of sharp, deft thrusts at the lawyer, thrusts whose basic meanings are quite clear but whose implications need explanation. The dominant theme concerns the lawyer's greed and his willingness to do anything for money. Love of money causes him to lay by his conscience and enter the service of Satan: and his acceptance of this satanic service is symbolically 79 represented by his donning a robe of black, the Devil's color and also, apprOpriately, that of the lawyer's gown. Because he is now conscienceless, he cannot distinguish right from wrong and takes fees, a fault in itself as will be seen, from the "wronger,” the ”wronged,” or from both at the same time. The moral world has become corrupt and the social and political worlds follow suit. The lawyer makes his money from contention and discord, the opposite of what one should strive for in a Christian commonwealth which stresses the brotherhood and interdependence of men.1 lichaelmas Term admits his primary motivation is avarice. Professor Johansson has already shown that greed was the primary charge leveled at Elizabethan lawyers:2 but to stop at that discovery, as Johansson does, is to overlook the deeper meanings of that charge. For moderns, to suffer from greed is to lack a fulfilled, happy life, to omit the fine and beautiful things life has to offer and put in their place the tawdry and transitory baubles of worldly pleasure which never bring true contentment. That attitude lies ‘behind the Babbitts and Willy Lomans of contemporary literature and causes them to live such vacuous lives while searching for success. Their shortcomings are personal, not necessarily moral, failures. They are unhappy, not damned: misguided, not evil. Johansson seems to have that modern view when he discusses the greed of Elizabethan lawyers, but that view does not explain the absolute corruption of lichaelmas Term, its disastrous consequences, or the so pervasive hostility aimed at lawyers in general. To under- stand those, the charges against lawyers must be put in their Elizabethan context which, in turn, goes far in explaining many of the widespread attacks on the legal profession. For, the Elizabethan argued, if pride caused man's fall, avarice kept him on his knees: and the daily practice of lawyers showed them to be servants of lammon rather than Justice. The specific charges against the lawyer fall into three main categories: those against his moral character, his legal practices, and his social irresponsibility, the last two being inextricably bound up with the first. An under- standing of attitudes toward moral character is important because Elizabethans, for the most part, placed praise or blame squarely on the shoulders of the individual. Where a modern sociologist or a historian, such as Sir John Neale, might look to ”the system" to explain man's actions (see chap. I, note 135), the Elizabethan believed that the individual man made a conscious choice to act rightly or wrongly. The writers, in fact, do not even seem to compre- hend the idea of a system--Iegal, economic, or otherwise-- which prevents a man from acting of his own volition. They see lawyers, attorneys, solicitors, clerks, and Judges as men who should be Judged as men, not as cogs in a machine. The machine is not only not used as an excuse for the lawyer's actions, it is not even offered as an explanation 01 the-e 81 As has already been shown in the case of Michaelmas Term and attested to by Johansson, avarice was the dominant characteristic of the lawyer's moral, or rather immoral, character. But one not only suffered from avarice, one also was guilty of it, and that guilt had far-reaching implications. Like a cancer, avarice quickly spread and destroyed the individual's moral character: but, unlike cancer, the disease was caused by a conscious, moral decision and could be eradicated by a similar decision. The idea was not new to the Renaissance: in fact, it is better known by that Latin tag so favored by Roman satirists and medieval preachers: Radix malorum est cupiditas.3 The tag is often misread to mean that money, rather than the inordinate love of money, is the root of all evil. The misreading shifts the onus from the individual to the thing, an interpretation with which an Elizabethan would not have agreed. Often, the maxim, perhaps because of its pOpularity, is treated as a fact of life, like the Law of Gravity, which, once learned, is tucked away in the mind's recesses and not dredged up to explain every broken dish or apple that falls to the ground. But Elizabethan satirists and medieval preachers delighted not only in that moral knowledge but in enumerating every branch and leaf which developed from the root. The result was a moral schema more than a moral theory, and it provided writers with a convenient and easily recognized framework upon which to build their characters. For example, the modern reader winces when he reads in 82 John Day's Law'Trlcks that the lawyer, Count Lurdo, delves in almost every corruption known to man because of his avarice. He breaks the social code by rising from a person of ”no meansfi to the peerage by virtue of his wealth not his worth. He divorces his wife on trumped up charges of adultery, corrupts Justice by bribery and legal chicanery, and, finally, plots the murder of his former wife. Ihat is the cause? “My Avarice,“ he says, thought she liv'd too long. I know one man hath coffind up six wives Since she was mine, and, by the poorest, purst A brace of thousand pounds: still good in Law: Men must be rich, by thrift our treasures rise, Give me the man's knave rich, take you poor wise. (I.i.246-50) The same motivation sparks many other legal figures into untold oorruptions. Sisamnes, the Judge in Cambises, not, only loses his own soul to greed, but plunders the poor, extorts from the rich, sells Justice and injustice alike, and brings ths kinngm to the brink of disaster, all because of his avarice. Vbltore resorts to bribery and disinheriting his son in hopes of gaining Velpone's wealth. The list of depravities could be continued: but the point is that, once infected, the avaricious man is apt to do anything. 'Covetousnesse,' as Barnaby Rich says, “This is the curre that thinkes nothing to be unlawfull, where either gaine is to be gotten, or gold to be gathered."4 The wince the reader feels arises because his psycho- logical realism is violated: one sin, he knows, does not beget another as readily as Biblical Hebrews begat one 83 another: and, though the lawyer may have his faults, they do not necessitate his total depravity. But that is a modern, a scientific view that starts from the fault and then ’ searches out the root: and there may be as many roots as there are faults. However, from the Medieval and Renaissance point of view, the root was known and the only problem was to fill out the foliage. The fullness of the tree was limited by the ingenuity of the writer, not by scientific data or a demonstrable cause and effect relationship. The practice of listing sins is associated primarily with the medieval preacher: and his sermons are often catalogues of the seven deadly sins with their variations, bound together with a single metaphor and tied with rhetorical flourishes and exempla to keep his parishioners awake if not vitally interested. A typical example is the sermon known as Jagggfggggll which has as its central metaphor a well constructed of rings of stone piled atop one another. Each ring symbolizes a particular sin: each stone within the ring contains variations on that sin: and the thickness of each stone, measured in inches, provides variations on the variation. Within the ring symbolizing 'coveytise,” for example, are many stones, each representing a kind of greed. Two of the stones are "sacrilege" and 'fals chalange,“ or false litigation. Sacrilege, in turn, “is manye inche depe,“ containing the sins of destroying or polluting churches or sacred obJects, withholding the church's due, laying hands on a priest or asylum seeker, 84 spending church goods, adultery, breaking the vow of chastity, and profaning holy days. The inches of the next stone are named for those guilty of false litigation, and they include accusers, defendants, witnesses, Juries, lawyers, pleaders, procurators, attorneys, solicitors, secretaries, and Judges. The adJoining stone, 'wyckydnesse," has such inches as apostasy, witchcraft, and dealing with charms.5 To the modern render, some of these sins (and the list is by no means complete) seem to have little to do with avarice, but to the medieval preacher there is a close relationship between all the sins, a relationship as tightly knit and Joined as the stones of a well. The covetous person is apt to be as guilty of striking a priest, adultery, and apostasy as he is of legal chicanery. The sermon can hardly be classed as profound moral theory: but it does supply a moral schema, a network of sins associated with avarice.6 That sermon tradition is usually associated with the allegorical and exegetical frame of mind typical of the Middle Ages and not with the more enlightened minds of the Renaissance: but tradition dies hard, and such Elizabethan writers as Dekker and Lodge turned out works that would have been equally at home in a fourteenth-century pulpit. ”Avarice,” says Lodge, tracing his ideas back to St. Augustine, ”is an insatiable & dishonest desire of enJoying everything.“ Lodge follows the same pattern as the preacher of gaggbfg,!gll but shifts his metaphor from a well to Satan's progeny. Satan begets Avarice who, in turn, begets other devils who beget still more. Avarice, for 85 example, sires Usury who takes on as apprentices his four brothers: Hardnesse of Heart, Unmeasurable Care, Violence, and Rapine. Another son is Brocage whose three brothers and apprentices are Craft, Deceit, and PerJury.7 Still others are Dicing and Plaier, an actor whose vices are “filthy speaking, Scurrility, unfit for chaste eares" and using "Hystoricall Scripture” on the stage.8 In the case of the lawyer, Lodge traces his lineage from 'CONTENTION”--the lawyer 'nourisheth contentions"-- whose brothers “PRESUMPTION,' 'PERTINACITY,” and ”PRIDE” are, in turn, related to Satan's first, eldest, and most important son, Avarice.9 Thus the lawyer had a blood relationship with such demons as usury, violence, rapine, hardness of heart, and whatever other sins Lodge's ingenuity could graft on the family tree. In The Seven Deadlz Sins 91 London, Dekker uses the same metaphor of blood relationships to show the inter- connection of sins, though he creates his own version of those sins. One sin, Lying, with a pun on "sleeping with," produces such illegitimate offspring as vainglory, Curiosity, Disobedience, O inion, and Disdaine. The mating of Lying and Usugz results in the birth of Extortion, Hardness g; Heart, and Bad Conscience. Indeed, for Dekker, London is one large brothel with Lying as its madam. In citing particular professions, he includes ”a company of scrambling ignorant Petti-foggars,' who aid Lying in bedding down with 10 Justice. Lawyers turn up again as lackies to another sin, ”Shaving” (cheating). 86 Elizabethan writers, then, employed the same moral schema, the associating of sins, as their medieval predecessors did, being equally adept at delineating the many evils that sprang from the root of avarice: and, because lawyers and greed were synonymous, the legal profession bore the brunt of Elizabethan venality satire. Avarice was Satan's chief weapon against man ("Avarice house stood the next door to he11“11), and writers never tired of showing the close relationship between Satan and lawyers. When Pierce.Penni1esse searches England for the Devil, he looks for him first among the lawyers at Westminster Hall. When the Host, in Middleton's g Tgig§,£g,§§££h’thg_glg 933, wonders how the lawyer Dampit came by such a fortune, Witgood supplies a ready answer: “How the devil came he not by it? If you put in the devil once, riches come with a vengeance: [he] has been a trampler of the law, sir: and the devil has a care of his footmen” (I.iv.29-32).12 The theme was also used in the visual arts. One painting portrays devils fishing for lawyersi souls, using money-bags as bait. The lawyers voraciously leap at the lure.13 There was, then, nothing unique about Michaelmas Term's donning Satan's black, symbolically entering the world of spiritual darkness. The lawyer was seen typically as a minion of Satan, morally bankrupt and capable of any evil: hence the widespread charges against his moral character, charges that extend far beyond his legal practice. In that sense, the Elizabethan lawyer is more akin to Conrad's Xurtz than to George Babbitt. More than Just unhappy and 87 unfulfilled, the lawyer was spiritually lost, rudderless and without a guiding light to lead him through life. As Lodge puts it, the avaricious man is like the moon in eclipse: "as the interposition of the earth betwixt the Sunne and the Moons, is the cause of the Eclipse of the same: so the interposition of worldly goods betwixt our minds and God, is the cause of our blindness in understanding.“14 Or, as Wyclif more plainly states the case, “children of the fend may not do but harmful thing.'15 Without God's light man stumbled into untold corruptions, and the Elizabethan lawyer was the person in deepest eclipse. It is, perhaps, impossible to tell today how committed Elizabethans were to the idea that 3233: malorum 333 cupiditas. The maxim may have been Just a convenient frame- work on which they could tack characters without having to spend much effort on character motivation. Its use to satirists, dramatists, and character writers is obvious as they were pressed for time and space and needed quickly recognizable villains and fools. Centuries of Sunday sermons had made the framework known to audiences, so the writers only had to fit their characters to it. The results might not be psychologically real by modern standards in that they produced one-sided, stock characters: but, by Elizabethan standards, they were as morally true as sermons could make them. . But even if Elizabethan writers did not know the Latin tag, the lawyers' daily practices would have made them invent it. At a time when there was no Bar Association to oversee 88 the lawyer's ethics and when procedural technicalities loomed more important than Justice, lawyers were tempted if not invited to indulge in legal chicanery: and, if the writers are to be believed, they indulged too much. Unfortunately, no Elizabethan lawyer has bequeathed a correspondence detailing the tricks and ruses he used to tip Justice's scales, as did the Norfolk Pastons of the fifteenth century. Many a real-life Dampit or Lurdo took his secrets to the grave. Consequently, one must start with the charges, often only generally stated, made against the lawyers' practices and then ferret out their detailed meanings from other data. The more persistent charges against lawyers, next to greed, concerned their fees, bribery, delaying tactics, and quibbling, all designed to enrich the lawyer rather than promote Justice. The complaints are common enough, especially the first two. There are still grumblings over the high prices asked by lawyers, and the odor of bribery has hung over law courts since their inception. Elizabethans, as well as other peOple, decried the outright corruption of Justice: but their complaints on that score are too obvious to need enumeration. The buying off of Judges, Juries, and ‘witnesses has not, unfortunately, been confined to sixteenth and seventeenth century England. But there were certain :fees and forms of bribery in that period which are no longer familiar. The subJect of legal fees constantly chafed writers. In Romeo and Juliet, when Queen Mab's tiny coach gallops 89 ”O'er lawyers' fingers,“ they ”straight dream on fees.” The Fool reminds Lear that ”the breath of an unfee'd lawyer" produces ”nothing.‘ In Humour 233 of Breath, Aspero asks his page to be his counsellor in love. The page immediately replies, "119 look for my Fee, then."16 Birdlime, a whore in Westward g9, dismisses another woman by speaking to her ”as clients do to lawyers without money, to no purpose.“17 The lawyer's eye, says Bishop Hall, ever squints on his client's fist in hopes of a larger fee.18 Indeed, Day remarks in the Prologue to The Isle of 9213, ”Lawyers fees” had come to be one of the more common vices anatomized upon the stage.19 The complaints and satire against fees, however, were not aimed at the lawyer's charge for handling a case. That fee was set by law, 6/8 per case per term in the Court of Cbmmon Pleas.20 That fee was not obJected to, except in cases involving the poor who could not afford it. What were obJected to were the extra-legal, and sometimes illegal, fees lawyers charged to supplement their income. The established prices of litigation listed for each court turned out to be only the admission fees into the game of lawsuits. The actual cost soared with every turn of the dice. The additional fees came from two sources, the expanding of paperwork and the padding of expense accounts. Because they were paid by the page for legal documents, attorneys, like schoolboys eking out term papers, wrote large and left wide margins. Sanitonella, having handed 90 Ariosto an inflated brief of “four-score sheets of paper,“ whispers that the only necessary information ”lies i' the margent."21 Hercules warns Zuccone that upon entering a lawsuit ”you shall pay for every quill, each drop of ink, each minim, letter, title, comma, prick" of the documents, plus every “breath” the barrister expends in pleading.22 John Donne, knowing the tricks of his former classmates, satirizes a lawyer for writing on parchment “large as his fields,” . So huge, that men (in our times forwardnesseg Are Fathers of the Church for writing lease. 3 But, adds Donne, the lawyer does not complain because the client has to pay for the expensive parchment and 'bigge“ writing. Shakespeare sums up the feeling by saying that England's ”shame” is evidenced by ”inky blots and rotten parchment bonds."24 Actual practices showed that the writers' complaints were not imagined or exaggerated. Walter Carey cried out against the ”making of long bills in the English Courts, full of matter impertinent . . . with their large margins, with their great distance between the lines, with the jprotraction of words, and with many dashes and slashes put .in place of words [which] lay their greediness open to the whole world. . . .“25 He claimed to have seen bills of forty sheets which could have been written in six and ones that cost four nobles which could have been pared to four shillings. Egerton, in Chancery, once made an expansive lawyer cut a hole through and wear around his neck a 120 91 page replication, full of irrelevant issues, and parade before all the courts in Westminster. Egerton thought the 120 pages could be cut easily to sixteen.26 Solicitors were known to write papers altogether irrelevant to a case, passing the cost on to their clients.27 It is such chicanery that makes Dekker conclude, ironically, that the pen, indeed, is mightier than the sword because the former does more damage. “In the handes of badde and unconscionable Lawyers,“ he says, Pens are forkes of yron, upon which poore Clients are tossed from one to another, till they bleede to death: yea the nebs of them are like the Beakes of Vultures, who (so they may glutte their appetiTg with flesh) care not from whose backes they teare it. Expanding and multiplying documents were, as Carey said, signs of the lawyers' greed: but they were also part of the lawyers’ bag of legal tricks and, in some cases, were even beneficial to their clients. A long replication might be filled with irrelevant issues: but those issues had to be answered and, thus, proved equally expensive to one's adversary.29 The documents were part of an economic as well as legal battle, the hOpe being that the adversary would eventually run out of money and have to drop the suit. Also, extra bills were drawn up as a form of bribe for court clerks, ‘who were paid for copying the bills and who controlled the comrt's machinery. The clerk, in return for the fees from extra paperwork (know as ”expedition money”), nursed the lawyer's case through the complicated court procedure, made sure all was ready when the case came to trial, and that the 92 trial came at a time convenient for the lawyer.30 Tangle, the lawyer in Middleton's The Phoenix, brags of such a relationship with a court attorney. Another special trick I have, no body must know it, which is, to prefer most of those men to one attorney, whom I affect best: to answer which kindness of mine, he will sweat the better in my cause, and do them the less good: take't of my word, I helped my attorney to more clients the last term than he will despatch all his lifetime: I did it. (l.iv.l79-85) The problem of fees was often tied to the charge of bribery, but not bribery in its ordinary sense of buying a favorable decision, of paying off Judge, Jury, or witness. Often, the charge meant that one had to bribe one's own lawyer not to tamper with Justice but to do his work. With- out his fee, as the Fool said, the lawyer did nothing, no doubt on the sound principle that a client's interest in a case and his willingness to pay waned when the case ended, especially if it was lost. But even when fees were paid, there was no guarantee that the lawyer would do much apart from accepting the case. The only thing one receives from a lawyer's fee, says Breton, is a promise of ”good speede.”31 The rate of speed depended on further payments ”bribes,” to some: ”gratuities,“ to the squeamish. The bribes thus referred to fall into three categories. The lawyer, nestled on the prosperous side of the law of supply and demand in litigious England, spent most of his time for the client who came with, as Stubbes says, ”rubrum unguentum, I dare not say Gold, but red oyntment to grease [lawyers] in the fist withall. . . ..:2 The ointment was an 93 outright payment above and beyond the required fees. Second, that bribe was also given to quell any ideas of the lawyer becoming an 'ambidexter,” one who accepted fees from both sides in a case, ensuring victory to the highest payer.33 Finally, though barred by law from accepting such "gratuities,” the lawyer with some conscience left could agree to exchange gifts with a client. But, as Birdlime complains, lawyers ”return a woodcock pie” for a “bacon and ewer.'3‘ That is, they exchanged a cheap for an expensive gift. Without the proper money or gift, the client ”may go shooe the goose for any good success he is like to have of his matter. . . ."35 Fishing for gratuities supplies much of the satiric humor surrounding Prate, the scoundrel attorney, in The 2252 Knight. As the play progresses, Prate rises from a "country court“ attorney to doing the ”king's business.” Having arrived at such prominence, he conveniently forgets his old and poorer clients. He is the familiar comic figure of one whose success has gone to his head. But there is more humor when one realizes that Prate has not forgotten his clients Drap, Velours, and lechant but that he is pretending to be so busy that he no longer has time for their cases. He deftly wheedles them for bribes in scenes similar to those in ghg_Alchemist where the gulls strive to be taken. Once offered “Menus" he quickly finds time to do their bidding. Precedent, Prate's clerk, sums up the humor: ”Now methinks my master is like a horseleech, and these suitors so many sick of the gout, that come to him to have him suck 94 their blood: 0 'tis a mad world.”6 Padding expense accounts, practiced by lawyers long before traveling salesmen and business executives refined the art, was another device for augmenting fees. The Pastons, assiduous bookkeepers as well as lawyers, charged their clients for every glass of wine and leg of mutton they ate while on legal business: and their Elizabethan counter- parts followed suit.37 That practice is satirized in g 9353 for“; Cuckold where Pettifog and Dodge, two bumbling attorneys, set up shop at the Three Tuns Tavern. After only one half hour of work, Pettifog proudly announces that he has not only been treated to three pints of wine by clients, but has also skimmed off “nine shillings clear” in expenses.38 The complaints against fees and bribery, then, were often intertwined: and bribery did not necessarily entail the corruption of Justice, but was often Just insurance that one's lawyer did his work. Elizabethans did not like being bilked any more than other peOple, and they chafed under the lawyers' additional fees, despite Professor Neale'e assertion that gratuities were an accepted way of Elizabethan life (see above, pp. 10-11). It was accepted by the receivers not the givers. ‘ Though avarice is abhorred even in our acquisitive age, what constitutes avarice, as opposed to Just earning a living, is hazy. Elizabethans and their predecessors could not draw the fine line where earning a living crossed over into cupidity any more than we can: yet they tried. 95 L. C. [nights says the sixteenth and seventeenth centuries advocated “a traditional conception of 'The Iean'“, an acceptance of "natural limitations“ to the amount of money a person should earn.39 Though Knights' main position is correct, the idea of a mean is misleading as it implies some happy medium between poverty and riches, that there should be a middle class in its modern, economic sense. But Elizabethans saw the problem as a moral more than economic one. what Knights referred to as ”natural limitations“ were defined by preachers. in 1613, Iilliam Perkins detailed two kinds of goods and riches necessary to man: those which preserve his life and those which preserve his dignity or station. Ian may with good conscience, desire and sacks for goods necessarie, whether for nature [life], or for his person [station] . . . but he may not desire and seeke for goods more than necessary, for if he doth, he sinneth.4U Ian had to make a moral decision as to when he reached his economic limitations. Perkims' distinction comes from the. medieval concepts of mercede and 5329: the former was payment for work done, and the latter money not earned.“1 ln taking bribes, that is excessive money for doing his work, the lawyer sinned by accepting 333g, in acquiring far more money than was necessary for his work, his life, and his station. neither Perkins nor his predecessors ever succeeded in establishing that precise point where a desire for necessi- ties passed into a passion for riches, but they were more specific than a vague “mean.” Elizabethan writers did not 96 know the point any more exactly than sermonists, but they did know who crossed it most often--lawyers. Excessive fees had social as well as moral implications, for those monies, in effect, deprived the nation's poor of legal redress. The writers were unanimous in attacking the fees of courts and lawyers as being more nails in the club used to beat down the poor. The lawyer Bartolus advises his powerful client, Don Benrique, to Be of good cheer, sir: You give good fees, and those beget good causes: The prerogative of your crowns will carry the matter, Carry it sheer:42 - ”Hang the penurious,” he adds, ”Their causes, like their purses, have poor issues.“ Stubbes voices the general com- plaint that in Dnalgne [England] 'lawiers have such chaverell consciences, that they can serve the devill better in no kind of calling then in that: for they handle poore mens matters coldly, they execute iustice parcially, h they receive bribes greedily. . . . They respect the persons not the causes: money, not the poore: rewards, and not conscience.“43 William Harrison declines to expatiate on ”how little law poore men can have for their small fees" because his treatise would expand “into a farre greater volume than is convenient for my purpose."4 If horseracing was the sport of kings, the law courts were the playgrounds of the wealthy where they ran roughshod over the poor. The poor suitor found a law case to be an economic as well as, if not more than, a legal battle. No matter how Just his case or honest the Judge, the poor client had to 97- leap financial hurdles before his case came before the Judge and Justice could be done. It was often those hurdles, the payment of innumerable legal fees, which prevented Justice being done his. The high cost of cranking up the legal machinery prevented Justice from even starting. In addition, the wealthy person, if he were a peer, Judge, or officer of the realm, ”received special dispensations in fees sharply contrasting to those exacted from tenants and poor persons with small plots of land.”45 The poor, already battered by enclosure, monOpolies, and usury, found their last bastion, the law court, already in the hands of their enemy.46 Behind the writers} defense of the poor's legal rights lay a principle, often unexpressed, which Elizabethans inherited from the kiddie Ages. In disdaining the poor man’s cause, the lawyer not only perpetrated legal and social inJustice, he also directly offended God: for, in denying the poor their rights, the lawyer perverted his God-given talent-in medieval terms his donum Del.47 The idea, simply stated, was that the learned received their talent as a gift from God: as such, the talent was to be used for the benefit of all within the Christian commonwealth and certainly not for the private benefit of those so blessed by God. The gift entailed responsibility on the part of the grantee and, ideally, was not to be sold. Acceding to economic necessi- ties, however, moralists allowed that fees could be accepted to sustain the individual but, in no case, should they be exacted from the poor. This principle, says Tunck, explains “one of the most significant of medieval social attitudes”‘8 98 and also many medieval attacks on lawyers, who, as a class, ”seemed peculiarly repugnant to these views.“49 “Judged by this ideal,” Yunck continues, the lawyer who served a guilty party seemed the worst sort of simonist, selling not Justice but the service of injustice: and all lawyers, if not clearly simonists, were defective in charity, for they reserved their services for those able to pay. The poor, the widows and the orphans-those special spiritual wards of the Church from itguearliest dayso-suffered for lack of legal counsel. The idea of donum Dei did not die out with the kiddie Ages nor was it obliterated by the Reformation. Thomas Lever, preaching in St. Paul's, advised that “every man by doing his duty must dispose unto other that commodity and benefit which is committed of God unto them to be disposed unto other by the faithful and diligent doing of their duties. . . .“51 Another preacher, emphasizing his point with italics, says, “A vocation ig'g_callin , is g certaine kind of life, ordained and imposed on man by_God, for the common good.'52 A lawyer, Thomas Lodge, warns his fellow Englishmen that “the greater your talent is, the more you have to answers for:'53 and he goes so far as to call lawyers the instruments of God.54 The idea of donum Dei is behind Gonzago's advice to his daughter, in larston's The Fawn: ”heaven gives every man his talent: indeed, virtue and wusdom are not fortune's gifts: therefore,” he adds, attacking the misuse of God's gift, ”those that fortune «cannot make virtuous, she commonly makes rich” (IV.i.576-79). Dekker, in a conventional medieval dream vision, hears a heavenly voice call 99 To Summon the whole world to stand to th' Barre, Both All that ever have beans, and now are, To give a strict account how they had spent 55 That Tallent of their life, which was but lent. The medieval idea of £2325 23; was still alive in the awnaissance. When lawyers abandoned poor men's causes, then, they let in a host of troubles: they took part in legal and social injustice: they affronted God by not prOperly using Bis gift: and they threatened the stability of the common- wealth by not Justly performing their calling which all men were required to do “for the common good.” In contrast, when lawyers were praised, they were praised precisely because they did act through charity. Ariosto, in The Devil's Law gage, represents the ideal lawyer correctly using his 'gift:' for, is ”honest men's causes,” he gives advice ”gratis." Jonson admits that there are “those good few" lawyers who defend cases ”for Charitie, and not for fee."56 Behind many of the attacks against lawyers for not giving the poor their due was the inherited social attitude accompanying the medieval idea of gogggiggi. It should be noted that the poor found not only lawyers but laws and courts weighted against them. Sir Thomas lore characterizes English laws as being made by the rich for the benefit of the rich and says that “the common law has become the happy hunting ground of men rich and powerful . . . and . . . the courts of that law'afforded the poor and humble .57 little protection. The Ploughman, in John Heywood's 91,0entleness and Nobility, gives a clear, though biased, 100 history of the marriage of wealth and law. The nobility, he argues, began from idlers who later extorted from the working people what they 'gat by labour and diligence.” To protect their ill-gotten goods, the nobility then ordained, And made laws marvellous strait and hard, 58 That their heirs might enJoy it afterward. Though few peOple would agree wholly with the Ploughman's history of the alliance between wealth and law, many agreed that there was a strong relationship. William Harrison insists that there is one law for the rich but quite another for the poor.59 Lear comes to the same sorrowful conclusion: Through tatter'd clothes small vices do appear: Robes and furr'd hide all. Plate sin with gold, And the strong lance of Justice hurtless breaks: Arm it in rage, a pigmy's straw doth pierce it. (IVe'e168.172) Thomas Dekker agrees with Lear. Crest men like great Plies, through lawes Cobwebs breake, . But the 33in'st°frame, the prison of th weake. John Day offers cold consolation to the poor in claiming that, despite all the tricks known to lawyers, the poor will never be thrown out of their one possession, their poverty.61 The loppression of the poor by lawyers, laws, and courts was a persistent Renaissance theme. Even when brought to bay, the powerful still had resources to evade the law's punishment. In one instance, every lawyer in the Court of Chancery refused to be employed against a ”great man,“ whereupon the Court had to assign and 101 compel counsel to act for the other side.62 Peers were notorious for evading Justice, unless their transgression affected the throne. If their power alone did not intimidate Judge and Jury, a pardon could be purchased from the sovereign.63 Local courts were particularly susceptible to influence peddling and power plays.6‘ In one case the Earl of Devonshire threatened Justices and Jurors with violence if they found against him.65 Particularly galling to dramatists was the case of one vennar of Lincoln's Inn who advertised a play and charged two shillings admittance. Collecting the receipts, he absconded, leaving his audience to contemplate a bare stage. The audience 'revenged themselves upon the hangings, curtains, chairs, stools, walls and whatsoever came in their way very outrageously, and made great spoil."66 When brought to court, the Lord Chief Justice made nothing of it ”but a Jest and merriment.'67 A crime for one person was only a prank for a member of the profession. Friendship, fear, influence, and money were used to slip the bonds of law.68 Cacafago, the waalthy usurer in gglg.g,!i£g_ggg,§gzg 3 gigs, callously sums up the situation. When asked why he had never become a J.P., the usurer answers that it is better ”to command a reverend Justice“ than to be one.69 Though law tricks were particularly useful in cases against the poor, they were equally applicable to all segments of society: and anyone who went to court had to be ready to parry the wiles of an unconscionable lawyer. In most satiric and dramatic writings, vague hints at legal chicanery were. enough to satisfy the audience: and writers rarely detailed 102 the particulars of that generic term either because they did not know them or because they did not want to get bogged down in technicalities. Despite Day's title, ng'Tricks, for example, the only tricks actually referred to on stage, though Lurdo threatens many, are the bribing of Judges and witnesses in his divorce case. It would be impossible here to enumerate all the lawyers' tricks because the space and legal knowledge of the writer are limited. Even a presents day lawyer would have difficulty in tracing all his predecessors' ruses because law and procedure have changed since then. But some explanation is needed if only to show what “tricks” meant and to expose the audacity of some lawyers. Fees were the writers' primary target but closely behind and associated with fees were delays. Complaints against delaying tactics were universal in Elizabethan times, and most delays were thought to be caused by lawyers seeking to extend cases in order to gain more fees for themselves and break their opponents under the same burden. Lawyers 'coyne delays for their own advantage,'7° complains Barnaby Rich: and Bishop Stubbes, agreeing with Latimer, laments cases that ”hang in sute' for"a quarter of a year, halfe a yeare, yes a twelve month, two or three yeeres togither, yea, seaven or eight yeeres now and then, if either friends or money can be udCe ”71 The only one to see a virtue in delays is Webster, and that is an ironic one. ° Of all man living, Tau lawyers I account the only men "T‘ 103 To confirm patience in us: your delays Would make three parts of this little Christian world Run out of their wits else.72 Delays proved a powerful legal weapon to litigants trying to outwit Justice not only in that they exacted more legal fees, but also in that they put one's opponent to great expense. The defendant had to leave his country home and take up residence in the city during term time, thus adding room and board to his legal expenses. Witnesses also had to make the Journey, and the litigant was expected to help defray their expenses. If the case could be put off from term to term, the cost would rise astronomically. No wonder people complained of having ”to run 100, 200, yes 300, or 400 miles (as commonly they doe) to seek Justice” at Westminster."3 It was not Just the distances but the added expense that wore them down. But being in London did not guarantee that one's opponent would also be there. Henry. Brinklow bitterly charges defendants of using the law for evasive and dilatory maneuvers. Because writs were only good for one shire and one term, the defendant need only move to another shire to escape a writ. The plaintiff then had to buy a new writ for the new shire:.and if, meanwhile, the term ended, he had to start all over again. Brinklow ‘blames lawyers for keeping this dilatory and expensive process as such for ”their private lucres sake."‘M Lawyers were certainly responsible for some delays. In order to block a suit in one court, they sued out complaints in Chancery to discover new evidence or to recover something 104 having a bearing on the original suit. Chancery was under- staffed and had a long waiting list of cases, so the lawyer could rest confidently while the false complaint inched its way to a hearing. There was no way to tell in advance whether the suit was frivolous or genuine, and the lawyer's adversary was delayed for a time.75 The delay allowed tine for papers to be lost, witnesses to die, the suitor to lose interest in the case, or give in to fatigue and economics. That there night be other and legitinate reasons for delay did not concern the lawyers' detractors. Illness on the part of anyone involved in a case caused delay, as did missing documents, hard to acquire evidence, omitted legal technicalities, and a lawyer having another case in another court at the sane tine. in fact, the very concept of ”due process,“ so revered by franers of the inerican constitu- tion,76 had, as its complement, slow process:77 legal pro- cedure and technicalities, designed to protect the innocent fros arbitrary Justice, were, in their very nature, dilatory. Such devices, unfortunately easily abused, caused law to defeat its own ends: and, in advocating speed, the detractors were, unwittingly, arguing against legal protections for the innocent. Significantly, Bacon, in castigating abuses of Chancery procedure, never sentions lawyers’ delaying tactics 78 and one historian, at least, as one nf those abuses: claiss the prinary cause of delay to be, not lawyers, but mheriffs' failures to return writs.79 Though there was, no doubt, soae Justification for the universal attacks on legal 105 delays, and some of those attacks Justly hit the unscrupulous lawyer, they were also, at tines, unjustified and weakened the legal protection of the innocent, for whoa the writers so often spoke. Other devices by which lawyers in league with others used the law to defeat its own ends were the crises of con- spiracy, maintenance, barratry, chanperty, and enbracery.80 In its original sense, conspiracy was the conbination of two or'more people to use the law courts for their own ends. That is precisely what Don Janie accuses his father and the lawyer Bartolus of in The Spanish Curate. Don Janie is, as he claims to the Judge, a victim of a “Confederacy,” ”A trick, sy lord, to cheat me,“ "A mere inposture, and conspiracy” against his inheritance.81 His complaint is not Just that his father and father's lawyer are against his but that they are using legal process to defraud hin.' Iaintenance and barratry were related. There were two kinds of naintenance, general and special. General saintenance was sinply the stirring up of trouble in the countryside by a person usually in the livery of a powerful, local magnate. Special naintenance involved supporting sose- body in court on a specific case, either with aoney or testinony.82 Those who gave testimony were sore popularly iknown to Elizabethans as “Knights of the Post," peeple who hung around the courts ready to hire the-selves out as *wdtnesses to whoever paid most.83 A person accused of being a "Maintainer of suits” was not necessarily quarrelsose but 106 one who involved himself in law cases, not his own, for profit.84 Barratry was the provoking of lawsuits and quarrels, a common enough practice among Elisabethans to impel Cdke to write a 2222 of Barretry [sic].85 . Champerty was the deplorable practice of the buying and selling of law cases between lawyers and land speculators, giving rise to the lucrative prospecting by attorneys among deeds and contracts. .The design was to ferret out claims cf doubtful titles or to spy loopholes in cases which, if enlarged, might allow the plaintiff to acquire the lands. Instead of mining the lode himself, the prospector sold his rights to someone willing enough to hazard the time, money, and energy necessary to bring the suit to Judgment. Embracery was the crude but effective crime of influencing Juries either with bribes or force. All these abusive devices-conspiracy, maintenance, barratry, champerty, and embracery-were extremely popular among the powerful of the liddle Ages and were used to intimidate lesser men and obstreperous tenants. In Tudor times, when the monarchy was strong enough to curtail baronial depredations, the abuses survived but largely as 'a pettifogging means of swindling «or annoying a neighbor” rather than as emblems of aristo- {cratic power.86 The Elizabethans had less to fear from the powerful baron than the cunning lawyer who used the devices to abuse the legal system and the citizenry. It would be repetitious of the main point to enumerate the many devices open to lawyers who wanted to skirt Justice 107 by manipulating law, but some of the more popular and notorious abuses should not be lost to posterity. The countersuit, still in use, was always available to provide a stalemate as when one solicitor, John Estgate, advised his client to sue a claim for £10 against sameonewho had brought suit against the client. Estgate added that the court records were in such disarray that the court could search a "fortnight” for the alleged debt and “peradventure 87 Sir Hugh le Despenser never be the nearer' to finding it. made a practice of having a friend buy a false writ against another's lands, and then Sir Hugh terrified the Jury into deciding against the owner.88 another device was to agree with one's adversary to postpone a case, only to rush back to court before the agreed time and win by default.89 One attorney toured the countryside with false writs; he entered a person's name on the writ, showed the person the writ, and then offered to defend that person in court for a nominal fee, saying that only the attdrney and not the client had to go to court. not satisfied with his fee for the fictitious case, is cdurt he shifted sides against the falsely accused and won Judgments by default against his already fleeced clients.90 not even clerics were safe. The Rector of St. Dunstan's intended to hand over a deed of :release to an attorney, John Seymour, for twenty gold marks. ‘Tha attorney showed the cleric the gold: but, when the Rector handed him the deed, Seymour scampered off with the release and the twenty pieces of gold.” 108 James Casen, a netorious attorney, spent three whole days in Star Chamber listening to charges brought against him. The allegations included his altering warrants, I illegally bringing actions, refusing money tendered and then bringing actions against the debtor, suing for the same money in two courts at once, and lending money with the usurer's trick of making part of the loan in worthless goods. During his trial a nest of rats or mice broke out from the ceiling plaster and ran about the beams of the courtroom, and three or four actually fell on the Court. That led the Archbishop of York, sitting as a Judge, to moralize that God's finger “pointed out to the Cburt, as it were, that as there was a nest of vermia discovered, soe that this man and .92 such as he were worse than Vermine. The good ArchbishOp voiced the general feelings of Elizabethans and Jacobeans toward lawyers.93 finally, among the mere proainent complaints against the lawyer's practices, was his fondness for quibbling, the 'quillets' and ”quiddities“ satirized by Hamlet which were considered typical of highly technical but small, narrow minds. lashe delighted in offering lawyers a nonsense riddle «or two onely to set their wittes a nibbling, and their iobbernowles a working, and so good night to their seigniories, but with this indentment and caution, that, though there be neither rims nor reason in it, (as by my good will there shall not.) they, according to their accustoaed gentle favors, whether I wil or no, shall supply it with either, and run over al the peeses of the land in peevish moralizing and anatomixing it. 4 Dodge advised his fellow lawyers that if they spent more 109 time studying God they would have less time for their 'quidities.“95 Iany of the quiddities were designed to subvert Justice, such as the one offered by a woman giving a defen- dant an alibi by claiming he was in Holland at the time he was supposed to have committed a crime. Pressed further, she admitted that he was not in the country of Holland but, rather, dressed in Holland linen.96 Justice Gardiner, Shakespeare's foe, offered another example of the crafty, quibbling mind when he brought a charge of perJury against a witness who testified against him in a case involving ' Gardiner's selling another man's furniture and pocketing the proceeds. The crux of the perjury charge was that the witness said the furniture was ”lying and standing in [Gardiner'sj house.“ The Justice quibbled over whether the furniture was actually “standing.“97 The case is interesting not only as an example of to what extremes quibbling could go, but also as an instance of the law being used as an instrument of revenge, for Gardiner had lost the original ones on the witness' testimony.. But other quibbles derided were at the heart of law and the legal process. Cases that turned on a technicality, an imprOperly filled out form, or a vague phrase were as well 98 except there were known to Elizabethans as they are today, more of them then when legal technicalities and procedure were more important than now) “the letter of the law,“ Elizabethans argued, was a phrase taken far too literally by llo . lawyers. Elizabethan lawyers, as all lawyers, could haggle over whether a particular action was actually a crime as stated by a general law. If it were decided that a case was possible, then the quibbling began in earnest: for'the first action of a suit was to sue out a writ! and the choice of writ.meant the choice of a remedy which could only be made effectual by following rigidly the procedure appropriate to it. ”Each writ,” said Bereford C. J. in 1314, "ought to keep its proper place, and be sued according to its nature": and this meant that the practitioner must consider such questions as the correct court in which to sue, the correct process, the correct mode of pleading, the correct mode of trial, the correct mode of execution.99 And right down to the law reforms of the nineteenth century, “the choice of the wrong writ involved the loss of the action, even though all the merits were with the pieintitt.'1°° in added difficulty to rigid legal procedure was the fact that the creation of writs to fit crimes had been halted in the thirteenth century, as has already been shown in Chapter I. Consequently, the Elizabethan lawyer was faced with the challenge of stuffing sixteenth-century crimes into thirteenth-century packages. Borderline cases which might have been sued out under one or another writ presented continual headaches and continual quibbling because the lawyer had to convince the court and his opponent that a particular writ was applicable to the case.7 The opponent .introduced his own quibbles in order to upset the case on a technicality. The matter was so complex that Just getting a