Moneylender

The procedure of the common law, as it emerged at the close of the eighteenth century, consisted of so complicated a mass of rules of all dates, and of so many fictions and dodges to evade inconvenient rules, that the task of erecting upon its foundations a rational system was long and complicated.

(William Searles Holdsworth. A History of English Law, Vol. IX, p. 262)

 Was Shakspere a London moneylender?

A record from the rolls of the King’s (Queen’s) Bench seems to lend some credit to this conjecture. In the nineteenth century James Halliwell-Phillipps, one of the most assiduous Shakespeare researchers of the day, held that the Willelmus Shackspere, who during the Easter term 1600 sued one John Clayton of Willington, Bedfordshire, in the Queen’s Bench for a debt of £7, was none other than the Bard. Sidney Lee, Edmund Chambers, and other scholars have dismissed this out of hand. What, after all, would the Stratford man have had to do with a man from Willington in the county of Bedford? But the record states that the debt was contracted in 1592 in London, in the parish of St. Mary-le-Bow of the Ward of Cheap. Given the erratic spelling of the time, Willelmus Shackspere could be William Shakspere. The document is in Latin, and Willelmus was one of the Latinized forms of Wilhelm (William), while Shackspere is a fairly frequent spelling of the name Shakespeare. And did not a “Willielmus Shackspere” of Stratford sue in 1609 one John Addenbrooke for an amount of £6? Would that not lend credence to the possibility that “gentle Shakespeare”, the bard, might have in reality been a hardheartened creditor, a would be Shylock who had poor Clayton cast into prison not for 3,000 ducats but for seven pounds, and John Addenbrooke for £6?

Legal fictions I – Common recovery

 William Searles Holdsworth is the author of the multi-volume History of English Law, a classic, arguably the classic work on the subject. Holdsworth must have been a man of almost unshakable composure, threading his way through mountains of often cryptic old documents, leaving no stone unturned in search of intellectual justifications of ancient law and jurisdiction, always with a keen eye for changing social conditions, values, attitudes, and on top of all this old law English, and at the very top of that, law French occasionally mixed with shards of Latin, yielding phrases like: “Ove vostre conge, nous voulumus emparler.”( The Reports of John Spelman, ed. for the Selden Society by J.H. Baker, London 1978, Vol. II, p. 93.)

 In modern French the above reads: “Avec votre congé, nous voulons en parler”, (With your allowance, we want to talk about it). This 'talking-about-it' between defendant and plaintiff during a pleading, in law French 'emparler,' was Anglicized as 'to imparl' and 'an imparlance.' As a student of old English law, Holdsworth had become too inured to strange words and phrases to be disturbed by them. Yet the flame of his impatience flares up in the following passage:

 “Right down to the nineteenth century, the actual record of the case read as if it had proceeded in strict accordance with the mediæval procedure, and as if entries had been made on the role of the various steps in the cause as it proceeded in court. But long before the nineteenth century, the form in which the record was drawn up was nothing but an elaborate and circumstantial lie.” (Holdsworth, Vol. IX, 1st ed. 1926, 3rd ed. 1944, p.260.)

  William Searles Holdsworth is chiding English legal documents for telling “lies.” For instance, until well into the 19th century it was always stated that the defendant had been allowed an “imparlance,” despite the fact that this part of the procedure had grown into disuse with pleading no longer oral but written. Actually, no “imparlance” could take place when the pleading was in written form, but it was still being recorded as if it had really happened, just to uphold an appearance of continuity with good old, sacred law, the “old field out of which the new corn had to come” according to Sir Edward Coke. 'Don’t touch statutes and customs of yore' was one of the unwritten rules guiding English jurisdiction. And, indeed, the judges did not touch statutes and customs, statutes were treated as if they were statues, monuments bowed to with respect but not bent to in earnest, “for the new law of the renaissance period was made, not by flouting the old learning, but by sneaking round it.” (Reports of John Spelman, Vol. II, p. 163.)

As a means to keep to the old law and at the same time pace with change, legal fictions were a practical tool. There were sometimes bizarre legal fictions. But even these were still somehow practical. The serene William Blackstone wrote about the middle of the 18th century, a century and a half before Holdsworth. Even he was not able to suppress a sigh of grief at the fits of fancy to which old English law had to recur in order to reconcile frozen past and boiling change. “To such awkward shifts, such subtle refinements, and such strange reasoning, were our ancestors obliged to get the better of that stubborn statute de donis.” (Blackstone, William, Commentaries, II.360.)

 Blackstone’s comment closes his description of a procedure called “common recovery.” Imagine a person, Sir Thomas Black, who wants to sell land to Sir William White. Think of them as enthusiastic participants in mock-trials at the Inns of Court and no less enthusiastic lovers of comedy at the Globe. Business alone being a matter too dull for their vivid spirits, they decide to carry out the transaction in form of a legal comedy. Sir William White (who wants to buy) sues Sir Thomas Black (who wants to sell) on the ground that Black has no legal title in the property. Black demurs and calls to witness George Grey, in the legal terminology of the time: Black vouches Grey. Grey knows neither Black nor White: what is going on is a complete grey area to him. He just happens to be there, he always happens to be there: he is the crier of the court. Grey nonetheless solemnly confirms Black’s lawful title to the property. Thereupon White asks the judge to have an imparlance, to talk it over with Grey outside the court room. The judge allows it. After a while White re-enters the court room — alone. Grey has played truant. Black’s vouchee having defected, judgment by default is rendered to White. Black, though, will be compensated. Grey is condemned, in absence, to compensate Black with land of equal value, which will always remain a black-out to Black because Grey does not own any land.

 Thus functioned a common recovery. The inclusion of additional vouchers, double, treble or multiple, does not change the procedure essentially. Titles other than Black’s might have existed in the property. The judgment by default against Black only destroyed his own title, not, for instance, remainders, interests which took effect upon the expiration of that of another. A frequent remainder was when land was conveyed to a son A and the heirs of his body, remainder to B, brother of A. B would become entitled when A died without issue. By a common recovery with single voucher only Black’s own title was extinguished, not remainders. Therefore, Black first conveyed, merely fictitiously, the land to Peter Brown. White sued Brown; Brown vouched Black; Black vouched Grey, whose defection annihilated Brown’s fictitious and Black’s real possession of the land. But as the judgment primarily defeated Brown’s title, which was fictitious and, hence, without rights of reversion or remainder, all possible other titles in the land were forever barred by a court judgment. Grey, here the common vouchee, was always the last link in the chain. The last link had to be “missing in imparlance.”(Blackstone, Comm., II.359; Holdsworth, History, Vol. III, p. 119, n. 8.)  Sir Thomas and Sir William might or might not have been lovers of mock-trial and was not what moved them to stage their “legal comedy”.

 The Statute Quia Emptores

 The land Black wanted to sell was an estate tail and therefore unalienable. The alienation had to be disguised as a trial leading to a court judgment which vested the title in the buyer. It was the Statute De Donis (1285) which had “turned all fee simple conditional estates in lands of free tenure into estates tail.” (Holdsworth, III.114.) In fact, it was by this statute that entailed estates came into being. The full title of the statute was De Donis Conditionalibus or the “statute on conditional gifts.” The Statute Quia Emptores, or 18º Edward I, enacted five years later, is also closely connected with these conditional gifts, which gave the Statute De Donis its name.

The Statute De Donis is also called the Second Statute of Westminster or 13º Edward I, c.1. On the names of statutes see Stephen’s Commentaries on the Laws of England, Seventeenth Edition. 4 Vol, thoroughly revised and modernized, and brought down to the present time under the general editorship of Edward Jenks, Esq. London: Butterworth & Co, 1922. Vol. I, p.43. “In the early days of Parliament, when the King’s Court was constantly moving from place to place, it seems to have been the fashion to name Acts of Parliament after the places at which they were enacted. Thus, amongst our oldest statutes, we get the Statute of Merton (1235), the Statute of Marlborough (1267), the Statute of Westminster (1275), and the Statute of Winchester (1285). But, when Parliament finally settled down at Westminster, this practice became obviously impossible; although the First, Second and Third Statutes of Westminster survive to show an attempt to continue it. Then there was a period during which statutes were named after their subject-matter, as, for example, the Statute of Mortmain and the Statute of Maintenance, or, in still cruder fashion (perhaps borrowed from the Papal Chancery), by the initial words of the enactment, e.g. the Statute De Donis Conditionalibus, or the Statute Quia Emptores. But the increasing complexity of Parliamentary legislation soon put a stop to both these methods; and the practice then arose, and continued for many centuries, of quoting Acts of Parliaments by the regnal year of the kings, and the chapter of the session. Thus — ’27 Hen. VIII.c.10,’...”

 Before the latter statute only conditional gifts existed. The basic formula of such a gift was “granted to him and/or her and the heirs of his, her or their body.” In feudal times the main purpose of such gifts of a lord to a vasall or tenant was probably to create a followership, to have loyal vassals which assisted him in time of war and served him otherwise in time of peace. In the course of time, however, the focus of the lord’s interest had shifted.

Such a gift was conditional on the donee’s having issue. If he had none, the land returned, reverted." to the lord. The condition was subject to some variations. Holdsworth distinguishes between three categories: a) The gift was conditional; as long as no heir was born it remained an estate for life only, which returned to the donor when the donee died without an heir; the estate became an estate of inheritance at the birth of an heir but reverted to the donor if the heir predeceased the donee; b) the gift immediately constituted an estate of inheritance but reverted to the donor if no heirs were born or survived the donee; c) an heir was born to the donee, the condition was fulfilled and regardless of whether the heir survived or not, the donee could freely sell the estate. It seems as if a conditional gift was mostly interpreted in the sense of c).(Holdsworth, III.112-3.)

This procedure, besides sub-infeudation, gave the donee the possibility of neutralizing the interest of the lord: he could sell the estate and buy it back. His ownership of the estate no longer rested on the gift but on his purchase. The donating lord lost not only the estate in reversion but a number of other valuable feudal rights. It was this situation which the Statute Quia Emptores sought to remedy. The statute opens with the following words: “Forasmuch as purchasers of Lands and Tenements of the Fees of great men and others have many times heretofore entered into their Fees, to the prejudice of the Lords, the Freeholders have sold their Lands and Tenements to be holden in Fee of their Feoffees, and not of the Chief Lord of the Fees, whereby the same Chief Lords have many times lost their Escheats, Marriages and Wardships of Lands and Tenements belonging to their Fees...” The main rights of the lord are those mentioned in the statute: escheat, marriage, wardship. No material difference existed between escheat and reversion. Whether an estate returned to the donor, escheated to him, because the tenant had died without heirs or because of “felony,” which here means a breach of loyalty by the vassal/tenant, made no difference from the purely material point of view. The rights of marriage and wardship proceeded from a feudal logic. As the relationship between lord and vassal was a personal one, defined in terms of loyalty, not of material benefits, it was only logical that the lord took the lands of the tenant at the latter’s death as long as the heir had not come of age and could not perform the services for which the land had been granted, and in a time when marriages were alliances, it was important that sons and daughters did not marry into a family inimical to the lord. However, these rights, though derived from a feudal logic, no longer obeyed the same. From personal assurances they had become assets, from security against ill-alliances they were ever more taking on the character of securities in a more modern sense. The rights of wardship and marriage could be sold and, of course, they were the more valuable the greater the value of the collateral land.

But these feudal rights were being hollowed out by another mechanism called sub infeudation, which was itself, as the word suggests, an intrinsic feudal device. The tenant could sell land to another tenant and become an intermediate lord, a “mesne” lord as opposed to the “chief lord of the fee,” and exert the same rights of escheat, wardship and marriage with respect to the land he had donated or “enfeoffed.” In the same proportion, as sub-infeudation progressed, the value of the feudal rights of the chief lord regressed. To put a stop to it, the Statute Quia Emptores provided that from then on land was freely alienable, without previous consent of the lord. “That from henceforth it shall be lawful to every Freeman to sell at his own pleasure his Lands and Tenements.” This means that the legal ownership of the land was vested in the buyer. But it was added in paragraph II that the buyer will hold from the chief lord: “AND if he sell any part of such Lands or Tenements the Feoffee shall immediately hold it of the Chief Lord, and shall be forthwith charged with the Services, for so much as pertaineth, or ought to pertain to the said Chief Lord for the same parcel, according to the Quantity of the Land or Tenement sold.”

 However, three exceptions to the freedom of selling land remained. First, selling land in mortmain was still subject to a royal license. To sell land in mortmain means to sell it to a corporation, which in the 14th century generally meant a religious corporation, often a monastery. It was a method which tenants had been using for some time before the Magna Carta (1215) in order to evade the feudal burdens of escheat, wardship and marriage. The tenant could sell the land to a monastery and then himself hold from the monastery, whereas the latter held from the Chief Lord. But a corporation never died, it was perpetual: the lord lost his income from escheat; a corporation had no heirs, no son or daughters to marry: the lord lost his rights of wardship and marriage. Therefore statutes made selling in mortmain dependent on a license of the court of chancery. Secondly, land directly held from the Crown could not be alienated without the king’s license. In 1256, during the reign of Henry III, an ordinance was issued, prohibiting the alienation of such land on pain of forfeiture. The provision was considerably mitigated by Statute 1º Edward III (1327); the punishment of forfeiture for the sale of such lands without license of the Crown was substituted by a fine (called “a pardon of alienation”). (Holdsworth, III, p. 81-2.) The third exception was the estate tail.

 The Statute De Donis

 The statute extends over 50 chapters. Because the conditional gifts are dealt with in the opening section of chapter 1 they gave the statute its name.. The statute stipulated that the original intent of the grantor that the land was given “to someone and the heirs of his body” ought to be respected and the grantees cannot alienate such an estate. Much emphasis was placed on the concern for the rights of the heir. It is not difficult, though, to see that even more concern about the chief lord’s rights of escheat, wardship and marriage had inspired this opening article of the statute. A definitive stop was put to the donee’s strategy of selling the land after the birth of the heir and then buying it back, so to defeat not only the reversion to the donor but also his right of wardship and marriage. This provision in itself did not quite give birth to the estate tail, the statute remaining silent on how many generations this prohibition would be effective. It was Chief Justice Bereford who in 1311-12 interpreted the provision as valid to the fourth degree (for three generations). But in 1331 another Chief Justice, Stonore, ruled that it was to last indefinitely. (Holdsworth, III.114-5.)Thus the estate tail was born, which in a time the economy became ever more monetary, put considerable fetters on the donees’ free disposition of their estate. From this point of view the “comedy” of common recovery made good economic sense.

 Legal fictions II — The fine

 A somewhat similar procedure to bar an entail was the levy of a fine. A fine (Finalis Concordia) – not to be confused with a pecuniary penalty – was the solemn conveyance of land in a common law court. A fine “may be described to be an amicable composition or agreement of a suit, either actual or fictitious by leave of the king or his justices.” (Blackstone, II.349.) The party who intends to alienate the land first refuse to do so. As long as he refuses he is termed the “deforciant.” The refusal merely serves the purpose of establishing a pretext for a suit and so having the conveyance recorded in a court, making it as safe as possible against possible claims by third parties (termed “strangers”). The party to whom the land is to be conveyed brings action for breach of covenant. The deforciant is quick to acknowledge the right of the other party and is from that moment on called the conusor; the other party is the conusee. Circumvention of the Statute De Donis, that is, of an entail, was not the only purpose for which a fine was levied, but it was probably the most frequent one. Common recovery and fine, both set up as fictitious trials, were the legal tricks most frequently employed to get rid of the entailed estate generated by the Statute De Donis.

Hamlet and the inheritor

 In the gravedigger scene (V.i) there is one long memento mori. Hamlet, musing over

several skulls, imagining what the people to whom they belonged might have been like in life, walks through a gallery of clever, busy, tricky, wily and successful men: a politician, “one that would circumvent God,” a courtier who succeeds at court by skillful flattery, a lawyer, grown rich by diversifying in business but largely by his real estate transactions, then a jester, and lastly the imperious Alexander the Great and Julius Cæsar. On the presumed lawyer Hamlet remarks:

There's another. Why may not that be the skull of a lawyer? Where be his quiddits now, his quillets, his cases, his tenures, and his tricks? Why does he suffer this rude knave now to knock him about the sconce with a dirty shovel, and will not tell him of his action of battery? Hum! This fellow might be in's time a great buyer of land, with his statutes, his recognizances, his fines, his double vouchers, his recoveries. Is this the fine of his 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 ength and breadth of a pair of indentures? The very conveyances of his lands will scarcely lie in this box; and must th' inheritor himself have no more, ha? (V.i.96-110).

Given the contiguous positions of “statutes” and “recognizances”, the “statutes” here meant are without doubt the Statute Staple and the Statute Merchant. “A borrower wishing to take up money on Statute Staple applied to a lender and, in return for the loan, gave to him a kind of bond known as recognizance, or acknowledgment of obligation already incurred... Originally ... recognizances on Statute Staple had been registered before the Mayor of the Staple in Staple towns, recognizances on Statute Merchant before the chief magistrates of the trading towns concerned. But in the course of time others than merchants found the system convenient and it was abused. It was therefore regulated. By the Statute 23º Hen. VIII, c.6, the local mayors of the Staple were forbidden to register recognizances except for bona fide merchants, and a new centralized system was set up in London to provide for those men who, not being merchants, nevertheless wished to lend and borrow money by this convenient method. The obligations contracted under this Act were technically known as Recognizances in the nature of Statute Staple’, and they were officially registered in the presence of one of the two chief justices or (in vacation) before the Mayor of the Staple in Westminster and the Recorder of London.” (Trevor-Roper, H.R. “An Anatomy Anatomized” in The Economic Historic Review, Second Series,Vol. III, No. 3, 1951, pp. 281-2. The Staple towns were established by Statute 27º Edw. III, stat. 2 (1353-4). Originally, they numbered 15 (10 in England, 4 in Ireland, 1 in Wales). Their function was to export staple goods: wool, woolfels, tin, and lead. See Brodhurst, Spencer. “The Merchants of the Staple” in LQR, Vol. 55, Jan. 1901, p. 68.)

 But what should be understood by “inheritor”? Obviously, this means “heir.” Harold Jenkins, the editor of the Arden Hamlet, seems to have doubted that the usual meaning of “inheritor,” that is “heir,” could make sense. He interprets the meaning as “acquirer,” though he indicates that fines... recoveries “were procedures for effecting the transfer of estates when an entail or other obstacle prevented simple sale” and a “voucher in a recovery suit was the process of summoning a third party to warrant the holder’s title, and the customary double voucher involved a second warrantor.” (Hamlet. The Arden Shakespeare. Edited by Harold Jenkins. London: Routledge. 1990, pp. 386-7.)

 But we have seen that the fictitious suit, either “fine,” or “common recovery,” purposed to bar an entail, that is, to defeat the legal title which the heir could claim by virtue of the Statute De Donis. A chain of fines and common recoveries would have had the effect of leaving the heir or inheritor with little more land than the space of the grave in which the presumed lawyer himself now lies.

Logically, it is also possible to think of the heir of the lawyer himself who in the end would have no more than a grave. But what argues that it was rather the heir that was deprived of his inheritance of land, is the closing interjection “ha” which marks disagreement and disapproval of something which ought not to be and should be ended, recalling Stephano’s reply to Caliban in The Tempest (II.ii.59): “What’s the matter? Have we devils here? Do you put tricks upon’s with salvages and men of Ind, ha?” With his common recoveries and fines (and these are the terms Hamlet is punning on), the lawyer has been playing tricks not on his own heir but on the heirs whose entails have been destroyed. Hence, Hamlet’s thoughts seem more concentrated upon the inheritor who has been cheated out of his inheritance by the lawyer’s tricks (his recognizances and, in the first place, by his common recoveries and fines).

 Legal fictions III – Knights of the Post

 Another legal device which may partly be considered as a legal fiction and through Thomas Nashe’s novel Pierce Penniless has acquired a certain literary notoriety is “the knight of the post.” Nashe defines him as “a fellow that will swear you anything for twelve pence.” (Nashe, I.164.) “Knights of the post” were witnesses for a defendant found guilty by a jury of twelve. In such cases the judge could allow the defendant his wager of law. The wager of law provided a means of defense against false witnesses or a bribed jury. To wage his law the defendant had to bring into court eleven of his neighbors — with himself numbering twelve to counterbalance the twelve men on the jury. His eleven neighbors were called the “compurgators.” Then the defendant had to swear an oath that he was innocent. “And thereupon his eleven neighbors or compurgators shall avow upon their oath, that they believe in their consciences that he saith true.” (Blackstone, IV.343.) Possibly, at some time these compurgators had been honorable men, maybe knights. However, as time went on the procedure seems to have degenerated into what on the surface seems a repulsive legal farce. No longer had the defendant to gather eleven 'neighbors' — though in best English law tradition they continued to be called so — but simply to collect any eleven persons who, against a small consideration (twelve pence, according to Nashe), were willing to swear "in their consciences" that the defendant was innocent. The quality of their conscience mattered little to nothing, their reputation might not be the best. They could even have stood in the pillory, at the “post,” whence the erstwhile compurgators came to be called “knights of the post.” As in the case of the common recovery, the farce sometimes made good sense. The advantage of maintaining this old procedure was that the judge was given a tool to neutralize the judgment of the twelve jurors when he was convinced they were either misled by false witnesses or themselves corrupt. (Baker, J.H. “New Light in Slade’s Case” Part II, in The Cambridge Law Journal, 29 (2) Nov. 1971, p. 228.) Thanks to the compurgating knights of the post the judge could play the role of the deus ex machina, undoing the machinations of evil witnesses or devilish juries.

The Clayton suit and the King’s Bench Bill of Middlesex

 In the 16th century another battleground emerged, fatal for facts and fertile for fiction.

The contending parties were the common law courts and the equity courts (partly also the Court of Common Pleas), the former against one another and jointly against the latter. The objective was the annexation of jurisdictional territory. Judicial competency had been regulated partly by statutes, partly by custom. The King’s (Queen’s) Bench was prohibited by statute from taking cognizance of most civil actions; these belonged to the jurisdiction of the Common Pleas. To the Court of Admiralty, an equity court, belonged the jurisdiction of all events happened at sea or overseas. Merchant law was a separate body of the law, outside of both common law and equity, but closer to the latter. As seen in the previous section, it was administered in town courts. But courts of appeal were in most cases equity courts: Chancery, Admiralty, Star Chamber. However, the King’s Bench had general jurisdiction, criminal and civil, for a limited territory, the county of Middlesex. Francis Bacon writes: “It is the course of the King's Bench, that they give in charge to a grand jury offences of all natures to be presented, within Middlesex, where the said court is.” (Bacon, Francis. The Works of Francis Bacon. James Spedding, Robert Leslie Ellis, and Douglas Denon Heath, eds. 14 vols. London: Longman, 1857-1859. Vol. XII, pp. 250-1.) The King’s Bench was attached to the prison of the Marshalsea, on which Bacon again instructs us: “But the King seeing the realm grow daily more populous and that this one court could not dispatch all, did first ordain that his marshal should keep a court for controversies arising within the verge, which is within twelve miles of the chief tunnel of the court... But this Court did but ease the King's Bench in matters only concerning debts, covenants, and such like, of those of the King's household, never dealing in breaches of the peace or concerning the crown by any other persons, or any pleas of land." (Francis Bacon, The Works of. Vol. VII, pp. 465-6. As Spedding notes, "tunnel" was also written "tinnel" or "tenell", the latter being the word used in 2º Stat. Rich. II, c.3, and the translation in Russhead's Statutes is "lodging". The verge was a radius of twelve miles around the place where the King resided.)

As early as the reign of Edward I (1272-1307) the Court of the Marshalsea had developed a device to extend its jurisdiction. The device consisted in occupying the grey zones around the notion of membership of the royal household. A relationship with the royal household could be stretched into membership and secure the jurisdiction to the Court of the Marshalsea. By a similar device the King's Bench was extending its jurisdiction to civil cases. The master target was the same as in the 14th century for the Court of the Marshal: a debtor had to be brought into the Marshalsea. The device is described by Holdsworth (Holdsworth, Vol. I, pp. 219-224).: “The first step in this process was to get the defendant either actually or constructively into the custody of the Marshal. In one case in Henry VI.'s reign it was held that actual custody was necessary to found the jurisdiction, so that it could not be exercised against a person who was released on bail. This decision was reversed later in the reign; and it was ultimately held that the mere record on the rolls of court that the defendant had given bail would be sufficient evidence of actual custody.” (Ibid., pp. 219-20.) This is what the record of the Clayton suit states: John Clayton was in the custody of the Marshal. Actually or 'constructively'?

Constructively, that is, fictitiously, as will soon appear. Holdsworth continues: “To get this evidence on record what was called a bill of Middlesex was filed by the plaintiff against the defendant, stating that he was guilty of trespass vi et armis – an offence falling properly within the jurisdiction of the court. The plaintiff gave pledges for the prosecution, which pledges, even in Coke's day, were the fictitious John Doe and Richard Roe.” (Ibid., p. 220).The record states exactly that: John Doe and Richard Roe were the pledges for the prosecution. As they were fictitious persons, the prosecution itself was a fiction. So they were in the cases Shexpere v. Rogers (1604) and Shackspeare v. Addenbrooke (1608). (Chambers, Shakespeare, Vol. II, pp. 113-118.) Possibly, Willelmus Shackspere of “Somewhere” or Willelmius Shexpere/Shackspeare of Stratford were moneylenders, misers and sharks, but it can 'impossibly' be proven as a fact from a legal fiction. Holdsworth goes on: ”The sheriff of Middlesex was then directed to produce the defendant before the court to answer the plaintiff concerning this plea of trespass. If the sheriff returned to the bill “non est inventus,” [not found] a writ of latitat was issued to the sheriff of an adjoining county. The writ recited the bill of Middlesex and the proceedings thereon, stated that the defendant "latitat et discurrit" [“hiding and lurking”] in the county, and ordered the sheriff to catch him. The trespass and the proceedings thereon were fictions invented to give the court jurisdiction.” (Holdsworth, Vol. I, p. 220.)

It certainly was so in the case Shackspere v. Clayton and likely so in the case Shexpere v. Rogers – because of the pledges “Johannes Doe et Ricardus Roe – and Shackspeare v. Addenbrooke – “ita quod habeant corpus eius coram ballivo burgi predicti, ad prxomam curiam de recordo ibidem tenandam … ad diem retorni inde mandavit quod predictus Johannes n in balliva sua”– that is, Addenbrooke was summoned by the sheriff but not found , “non est inventus” being the standing term in the fictitious procedure with the fictitious pledges John Roe and Richard Roe. EK Chambers remarks ( Shakespeare II.117) that “arrest was also impossible, because the debtor was outside the very limited jurisdiction of the court”, but he fails to recognize the fictitious character of the procedure. The passage on which this statement is based reads “predictus Johannes [Addenbrooke] non est inventus”, precisely the standard formula of the bill of Middlesex. Here, of course, one cannot properly speak of a bill of Middlesex. But the records suggest that the Stratford Court of Record’s procedure was an imitation of the King’s Bench’s Bill of Middlesex.

I here have to add a correction to a former text in which I had, under the influence of Holdsworth, Plucknett, and partly the tracts of Chancellor Lord Ellesmere (1540-1617), restricted the use of the Bill of Middlesex by the King’s /Queen’s Bench to transactions on or beyond sea, subjected to the jurisdiction of the Court of Admiralty. However, it has no impact on the essential conclusion that the venue in such a bill being fictitious generally cannot be relied on for empirical evidence.

Finally: “If the defendant appeared and gave sureties for his future appearance he was sufficiently in the custody of the Marshal to give jurisdiction to the court. If he did not appear to the bill or latitat he was liable to be arrested for contempt of the court in not appearing. But as all the proceedings were fictitious, the contempt would seem to share the fictitious character. To arrest a man for a merely fictitious contempt was clearly a hardship. Therefore, in the event of non-appearance, the plaintiff was allowed to enter an appearance for him, and to give as sureties for his appearance his friends John Doe and Richard Roe. This was called giving ‘common bail.’ In some cases, however, it was desirable that the defendant should be put in substantial bail for his appearance. This was called ‘special bail.’ The question when special bail could be required was a question depending upon the practice of the court. It was usually required if the plaintiff swore that the cause of action was worth £10 or upwards." (Ibid., pp. 220-1.)

This is what Willelmus Shaxspere did. John Clayton was not put in “special bail” for his appearance, but the fictitious John Doe and Richard Roe were the plaintiff’s pledges for the appearance of the defendant. The reason is given in the record: the cause of action was worth less than £10. If Willelmus Shackspere and Willielmus Shexpere or Shackspeare were identical, nothing can be concluded from those records about their merciless character. As a matter of fact, the record of the Clayton suit (and likely also in the cases vs. Roger and Addenbrooke) just tells us that the parties wanted to have the case decided in the Queen’s Bench, as so many other litigants did because the procedure in this court was less complicated, speedier and less expensive than in the Common Pleas. But could they have been identical?

 Venue

 According to statute an action had to be laid in the county in which the litigious event had occurred. But by the end of the 15th century these rigid rules of venue had been relaxed. A difference was made between “local” and “transitory” actions, that is between actions to which the place of the litigious event was material, for instance burglary, and actions to which the place was immaterial, for instance debt. The place where the debt had been contracted was henceforward without any legal importance. “Thus, though by statute the venue must be laid in the proper county, the defendant could not traverse the venue laid by the plaintiff, unless his plea was local in its nature, i.e. depended for its efficacy on the place in which the facts alleged in it happened. If his plea was transitory in its nature he could not object to the venue laid by the plaintiff.” (Holdsworth, Vol. IX , p. 141.) In other words, the chosen venue was beyond objection or “untraversable”.

                So Lord Ellesmere still argued: “Supposing in some Cases, that some Goods or Marchandizes, that indeed never were in England, and in some Cases, that a Shipp itselfe was lost in Cheapside in London, or in some other place in Middlesex, and there found by the Defeandant, and converted to his use. And so that matter, which naturally, and properly ought to be decided in the Admirall Court, for that the grounds and Cause of the suite is matter happening on the sea, or bbeyond the seas, is indirectly, by an untrue and unlawfull fiction drawne to bee tried by a lay Iurie of London or Middlesex and judged by the Common Lawe. This practisem is, lately growne too common, and it is now put in ure, it doth not only wrong the lawfull Iurisdiction of the Court of Admiraltie; but doth alsoe make a great Breach in a Principall Maxime of the Common Lawe itselfe, which is, that alll things ( specially the right and Title of Lands) ought to bee tried in their owne proper Country.” (quoted from Louis A. Knafla, Law and Politics in Jacobean England – The Tracts of Lord Chancellor Ellesmere, Cambridge 1977, p. 294.)

  But then the question arises as to why the place is mentioned in the Clayton suit: “that he the aforesaid John Clayton on the twenty-second day of May in the thirty-fourth year of the reign of the Lady Elizabeth the present Queen of England, to wit in the parish of St. Mary le Bow in the Ward of Cheap, London, by a certain bond in writing...”. The answer is that the place where the debt was contracted still mattered for one class of debts, namely debt wholly contracted and performed abroad, which belonged by statute to the jurisdiction of the Court of Admiralty. At the beginning of the sixteenth century still “no action would lie on a contract made abroad and to be performed abroad, or any other act done wholly outside England. It was during the sixteenth century that this last limitation imposed by the rules of venue was got over by the adoption of the fiction employed by the pleader in the Year Book of 48 Edward III [1374-5]. The plaintiff alleged an act taking place outside the realm, and then asserted that that foreign place was situate at a place in England – ‘to wit in the parish of St. Mary le Bow in the Ward of Cheap.’ The advantages of this device were obvious. It gave the common law courts jurisdiction in transitory actions over all acts and transactions, even though they happened wholly outside the kingdom; and it was clearly these advantages which led to its adoption.” (Ibid., p. 140) This is exactly the device used in the Clayton suit.

  Given that the action of Willelmus Shackspere against John Clayton was about debt, hence transitory, the venue was untraversable. However, only on condition that it was explicitly stated. If it were not explicitly stated ), the venue was traversable. “Note that in Dowdale’s Case (1606) 6 Co. Rep. 47b, it is said that, ‘Where as well the contract and the performance of it is wholly made or to be done beyond sea, and it so appears, then it is not triable by our law. [ie. common law].’ But by the aid of this fiction it never ‘so appeared.’” (Ibid., n. 5, p. 140) Had it not been explicitly stated, the venue had been traversable as in the case Robert v. Harnage (1704) “where by the inadvertence of the pleader in omitting to insert the words ‘to wit, at London, etc.,’ it did so appear, and the writ abated.” (Ibid.)

To sum up: the place where a debt was contracted was wholly immaterial to the venue, save in cases where it was wholly contracted and performed at sea or overseas. In this case the venue had to be the Court of Admiralty. But common law courts could overcome this statutory barrier by positing a fictitious locality inside England. This legal fiction was untraversable, provided the fictitious place was explicitly mentioned. The fictitious place could be any locality just as the fictitious pledges to the prosecution could be any two names. But as the most common names for the fictitious pledges appeared to be John Doe and Richard Roe, so in the last quarter of the 16th century the most common fictitious locality for cases which had happened outside England was the parish of St. Mary le Bow in the Ward of Cheap. Which proves that the debt of John Clayton to Willelmus Shackspere was contracted and had to be performed abroad, be it in Ireland, France, the Low Countries or elsewhere outside England. And that neither John Clayton nor Willelmus Shackspere were in London on 22 May 1592.

The reason that “St. Mary le Bow in the Ward of Cheap” was chosen as fictitious venue is not clear. From the Ellesmere tracts (1611) it appears that other places within the general jurisdiction of the King’s Bench were chosen as well. The Lord Chancellor Ellesmere complains of the encroachments by the common law courts on the jurisdiction of the Court of Admiralty. “And so the other side, it were meet, that he that libelleth [ie, lays action] in the Admiral Court for any matter done upon the sea, or beyond the sea, or otherwise, within the Admiral’s jurisdiction should make the like oath “Prohibitions were constantly issued to the Admiralty and other mercantile courts, while by a daring fiction which begins to appear frequently in the sixteenth century the common law courts assumed jurisdiction over acts which took place abroad, by the simple device of describing the place as being “in the parish of St Mary-le-Bow in the ward of Cheap”.

 As far as we know, neither the true character of the Clayton suit as a bill of Middlesex by which the King’s (Queen’s) Bench expanded the scope of its jurisdiction nor the actual purport of the presence of the clause “to wit in the parish of St. Mary-le-Bow in the Ward of Cheap” have ever been recognized. As seen it also eluded E.K. Chambers, who comments: “I agree with Lee that there is no ground for identifying the Willelmus Shackspere of this with the dramatist. The debt was acknowledged in Cheapside on 22 May 1592. No local description is given by which the habitation of the plaintiff can be fixed. The defendant was of Willington in Bedfordshire.”