Shakespeare and the English Equity Jurisdiction: The Merchant of Venice and the Two Texts

of King Lear
Author(s): B. J. Sokol and Mary Sokol
Source: The Review of English Studies, New Series, Vol. 50, No. 200 (Nov., 1999), pp. 417-439
Published by: Oxford University Press
Stable URL: http://www.jstor.org/stable/517390
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 SHAKESPEARE AND THE ENGLISH EQUITY

JURISDICTION
THE MERCHANT OF VENICE AND THE TWO
TEXTS OF KING LEAR

BY B. J. SOKOL AND MARY SOKOL

The article reviews connections long alleged between equity and a variety of
Shakespeare'splays. Not all writers have been responsive to the complexities of
overlappingbut differinguses of the term 'equity'. Also many criticaltreatmentsof
Shakespeareand equity incorrectlycharacterizethe historicalrelationsbetween the
early modern common law and equity jurisdictionsonly in relationto a notorious
political crisis of 1616. A more fine-grainedanalysisof lawyers'discussionsand of
legal and politicaldevelopmentsallows the delineationof subtlerhistoricaldynamics
and of conceptualand terminologicaldifferences.Following from this it is argued
that many twentieth-centuryclaimsthat the supposedconflictsof Elizabethanequity
and law jurisdictionsinformpassagesor themes of 1 HenryIV, MeasureforMeasure,
and especially The Merchantof Venice,are unfounded. However, it appears that
Shakespearedid refer to co-operativeequity and law jurisdictionsin the quarto
version of King Lear, although the relevant passage and indeed its scene were
removed from the folio text. This, together with the historical detail provided,
suggests a dating of at least some of the folio revisionsof King Lear.

Many later twentieth-century students of Shakespeare who have taken an interest

in the legal contexts of his plays have persistently misapplied a particular legal-
historical background to an early Shakespeare play. Yet an application of the same
background to a later play may be most illuminating.
An examination of the play's text in relation to the historical nature and
development of Elizabethan jurisdictions renders unfounded a widespread belief
that the trial in The Merchant of Venice is concerned with the vicissitudes of the
English jurisdiction of equity. On the other hand, historical contexts indicate that
Shakespeare did have the political difficulties of that jurisdiction in mind when he
made particular changes to the 1608 quarto version of King Lear. Approximately
1608 and 1610 were the likely dates between which Shakespeare had good reasons
to eliminate a reference to peaceful relations between the jurisdictions of equity
and law. He did this by cutting out the trial scene of King Lear.' This dating fits
well with Gary Taylor's lengthy examination of the play's textual changes,
1 All citations of Shakespearewill be from WilliamShakespeare,The CompleteWorks:Electronic
Edition,ed. S. Wells and G. Taylor (Oxford, 1989).In that editionthe quartoand folio versionsof King
Lear are separatelypublishedand designatedLRQand LRF respectively.'Shakespeare'hereafterwill
stand for the author(s)of the texts of LRQ and LRF, as well as, for instance, of Henry VIII. The
edition's abbreviationsare used throughoutthis article.
The Review of English Studies, New Series, Vol. 50, No. 200 (1999) ( Oxford University Press 1999
418 B. J. SOKOL AND MARY SOKOL

concluding on other bases that the play, composed in 1605-6, was 'revised by
Shakespearehimself, probably1609-10'.2
Another outcome of our investigationis a confirmationof the first numbered
point in AnnabelPatterson'sanalysisof 'the hermeneuticsof censorship'.This is
that one must observe'the importanceof an exactchronologyin determiningwhat
any given text was likely to mean to its audienceat the time of its appearance'.3
However, we also find that one of Shakespeare'sacts of political tact or self-
censorship,the one motivatingthe cuttingof the trialin KingLear,is not in accord
with the themes focused upon by many who have questioned whether a
dangerouslyradicaloutlook is reflected in the play.4A conclusion to be drawn
is that looking for radicalismfrom a modern perspectivemay not reveal all the
politicallysensitive issues of the past.
The following discussion of Shakespeareand equity will proceed from a
historical overview to a considerationof errors concerning The Merchantof
Venice, then to a closely focused review of Jacobean events, and finally to
conclusionsabout King Lear.

II

Jill Martinopens her leadingtext ModernEquityby commenting:'Equityis a word

with manymeanings'.5The need for such a warningarisesbecausein currentlegal
usage 'equity' is not synonymous with 'justice in a broad sense', but means a
particularsystem of legal rules, procedures,and principles.6
A wider sense of the word 'equity'long in use, indicatingjusticeand fairnessin
general,leads one to suppose that at some time its legal usage also meant justice.
But there are difficultiesfor those who, looking at early legal institutionsfor the
origins of the law of equity, try to equate ideas of justice and fairness with
medievalChanceryjudgments.It is said that 'few beginningsareas elusive as that
of the Chancellor'sequitablejurisdiction'.7Because recordswere not kept of the
2 G. Taylor, 'The Date and Authorshipof the Folio Version',in G. Taylorand M. Warren(edd.), The
Divisionof the Kingdoms:Shakespeare'sTwo Versionsof King Lear (Oxford, 1986), 351-468: 468.
3 A. Patterson,Censorshipand Interpretation:The Conditionsof W/ritingand Readingin Early Modern
England(Madison,Wis., 1984), 47.
4 Ibid. 59 describesmodels of subversionin KingLeardrawnfrommanyrecent'moreor less explicitly
Marxist . . . readingsthat try to deal with the fact that this play alone of the majortragediesis clearly
and profoundlyengaged not only with questions of authorityin the state but with socio-economic
issues, feudal rights and obligations,and something that verges upon class analysis'.Such issues are
exemplaryfor many views of what might have been seen to be tactlessor objectionable.Neither Gary
Taylor's extensive analysis, in 'Monopolies, Show Trial, Disaster, and Invasion: King Lear and
Censorship',in Taylor and Warren(edd.), TheDivisionof the Kingdoms,75-119: 88-101, nor those of
others, find the trial scene 'subversive'.
5 J. E. Martin, Hanburyand Martin:ModernEquity(London, 1997), 3.
6 For the classic technicaldefinition see F. W. Maitland,Equity:A Courseof Lectures(Cambridge,
1936), 1.
7 S. F. C. Milsom, HistoricalFoundations of theCommonLaw (London, 1981),82. J. B. Post, 'Equitable
ResortsBefore 1450',in E. W. Ives and A. H. Manchester(edd.), Law,LitigantsandtheLegalProfession
 SHAKESPEAREAND ENGLISH EQUITY 419

court's proceedingsuntil the sixteenth century, a lack of historicalevidence has

obscureddetail and temptedmany to conjecture.Procedurally,the court beganas
the royal secretariat, the descendant of the Anglo-Saxon scriptorium.The
Chancellor, as the king's minister, presided over the issue of royal writs and
grants. By the fourteenth century petitions were addressed directly to the
Chancellor. Medieval legal thinking appears not to have considered that
common law and equity were separatebodies of rules.s By the sixteenth century
the most widely acceptedtheory was that 'any generalrule must workinjusticein
particularcases, and therefore that the application of positive law should be
subjectto some dispensingpower in the interestof higher justice'.' The appealto
a higher justice for such correctionwas of great antiquity;10the new element in
sixteenth-centuryEngland was that positive law could be embodied in a wholly
separatesystem of substantive law. Thus, according to S. F. C. Milsom, the
unique English innovation was the institution of a system of equity and of
common law as separatebodies of rules.11
In practice, and indeed as reflected in contemporarydiscussions, the late
Elizabethancourts of equity, and especially the most important-Chancery-
did not freely apply 'conscience'to correctdefects of positive law,12and certainly
did not offer free 'pardon'for crimes.'3Nor did they extend clemency,a function
(London, 1983), 68-79: 78-9, finds medievalChancery'sequitablejurisdictionneithercivilianin basis
nor particularlydistinctive 'in the legal characterof its judgments'.
8 Milsom, HistoricalFoundations,83-4.
9 Ibid. 88. This summaryis borneout in many 16th-cent.texts: see ChristopherSt German[d. 1540],
Doctor and Student (London, 1975), 96; William West, The Second Part of Symboleography . . .
Whereuntois annexedanotherTreatiseof Equitie(London, 1601), 174; John Cowell, The Interpreter
(Cambridge,1607), N2'-N3r; William Lambard,Archeion,or a Commentary uponthe High Courtsof
Justice in England(London, 1635), 46-7 (the spelling of the author's name in the first edition is
regularizedelsewherein this articleas 'Lambarde').
10 See Eth. Nic. 1137a-1138a,in Aristotle, The Basic Works(New York, 1941), 1019-20.
11 Milsom, HistoricalFoundations,88-91.
12 The classic treatmentof an English jurisdictionof 'conscience'is found in the dialogueDoctorand
Studentby ChristopherSt German.J. L. Barton'sintroductionto a modernedition,St German'sDoctor
and Student,ed. J. L. Bartonand T. F. T. Plucknett(London, 1975), pp. xi-lxvii, makesabundantly
clear that attemptsto equatea court of 'conscience'with contemporaryEnglish equity led St German
not only to write crucial ambiguities,but indeed to 'outright self-contradiction'(pp. xxviii-xxix).
Difficulties arise in a number of ways, detailed on pp. xlvi-li, particularlyin relation to equity's
jurisdictionover uses (trusts).
Although it was typical to refer to English Chanceryas a 'Court of Conscience',West, TheSecond
Part of Symboleography, 176, qualifiesthis, noting that only 'the common people terme the Chauncery
the Court of Conscience'. West offers an alternativedefinition: 'Equitie as some other say, is a
reasonablemeasure,containingin it selfe a fit proportionof rigor ... a ruled kind of Justice' (p. 174).
IHegives good illustrationof this by filling pp. 177-300 with patternsfor the specific formalitiesof
preordainedtypes of Chanceryaction.
13 Only in exercisingone of its manyadministrativefunctionsas a generalsecretariatto the Crowndid
the multifacetedChancellor'sdepartmenthave to do with pardons.J. Bellamy, The TudorLaw of
(London, 1979),218-19, explainsthat 'special'pardonsfor particularcases were grantedby the
7Treason
Crown, while 'general'pardons extending for some fixed period were also occasionallyoffered by
proclamationor parliamentaryacts. He adds that at the announcementof royal proclamationsof
pardon,as in that following the Pilgrimageof Grace, the Chancellormight be prominentamong the
assemblednobles (ibid. 223-4). Followinggeneralpardonsbeneficiarieshad to registertheir namesand
420 B. J. SOKOL AND MARY SOKOL

that was seen as 'onely properto the Prince',14 nor, despite some contradictionsin
the work of sixteenth-centurytheorists, did they consider abstract 'mercy'.15
Narrowing the medieval Chancellors'theoretically,perhaps mythically, broad
remit, these courts had developed only in certaindistinct areasof legal concern.
Although there were some developmentsexpandingthe scope of injunctionsfor
equitablerelief in Shakespeare'sera,16the courtsoperatedmainlyin civil matters17
involving real property(land) and the uses (trusts) under which this was often
held.
Inconsistent theoretical and pragmatic perspectives typical of a period of
transformationfeaturein a discussionof equity in WilliamLambarde'sArcheion.
This importantand complexlytransmittedworkwas mostly writtenby 1591, and
revisedby 1598,but it was unpublisheduntil it appearedin two dissimilarversions
in 1635.18It holds first that the common law part of the Chancellors''double
obtain sealed documentsfrom Chanceryfor a small fee, or sometimesfreely. Some applied for such
documentsas a protectionfrom being chargedin the future,but generalpardonsregisteredin advance
of chargeswere not automaticallyacceptedby courts.
14 West, TheSecondPart of Symboleography, 175. WilliamLambardestressedthe samepoint in one of
his 'Chargesto the Jurors'quotedin W. Dunkel, 'Law and Equityin MeasureforMeasure',Shakespeare
Quarterly,13 (1962), 275-85: 276.
15 St German, Doctor and Student, 95-9, first states that 'Equytye', which 'consideryth all the
pertyculercyrcunstauncesof the dede', 'also is temperydwith the sweetnessof mercye'.He goes on,
however, to equate this equity with 'epicaia', which is Aristotle's doctrine that general laws must
sometimesbe interpretednot literally,but in terms of their underlyingintent as it appliesin particular
circumstances:'equytieratherfolloweththe intent of the law then the wordesof the law'. The example
given has nothing to do with clemency; the confusion of 'sweetness of mercie' with the supposed
limitless flexibilityof equity is endemic in similararguments,as in an 'as some other say' alternative
definition given in West, TheSecondPart of Symboleography, 174.
Excessive 'mercy' was indeed a political problem. It was difficult to get Elizabethanjuries (and
indeed constables like Dogbery and Verges) to act against roguish offences towards which local
communities were more tolerant than was central authority;see K. Wrightson, 'Two Concepts of
Order: Justices, Constables and Jurymen in Seventeenth-CenturyEngland', in J. Brewer and J.
Styles (edd.), An UngovernablePeople: The Englishand their Law in the Seventeenthand Eighteenth
Centuries(London, 1983), 21-46, esp. 24, and J. Kent, 'Attitudes of Members of the House of
Commons to Regulation of Personal Conduct', Universityof LondonBulletin of the Instituteof
HistoricalResearch, 46 (1973), 41-71. Such derelictionon the part of local quartersessions juriesthat
would not bring presentmentswas repeatedlyrailed against,with threats,in the series of Lambarde's
instructions to juries, printed in C. Read, WilliamLambardeand Local Government(Ithaca, NY,
1962). Another of Lambarde's'Charges to the Jurors', quoted in Dunkel, 'Law and Equity in
Measurefor Measure', 276, admonishes them against 'a feygned Equitie', complaining that they
'thearbyacquite most guiltie offendors'and also 'arrogateunto theimselves,bothe the Office of the
Chauncelor,and the prerogativeof her Maejestie to whome only it belongeth to graunt pardon to
Malefactors'.
16 A 16th-cent.growthof equitablerelief from harshconditionalbonds is discussedbelow. There was
also a later developmentof an 'equity of redemption'for mortgages.
17 Yet, accordingto the introductoryessay of D. E. C. Yale, LordNottingham's'Manualof Chancery
Practice'and 'Prolegomena of Chanceryand Equity'(Cambridge,1965), 16-17, the Chancellor'scourt
punished criminalperjury,and 'In Equity all process was founded in principleupon the defendant's
contempt . . . often on the footing of criminalcontempt'(ibid. 39).
18 We cite BL 507.a.33, the corrected'T' edition, which is signed 'T. L' on A6'. On the complex
manuscriptand publicationhistory of this work see C. H. Mcllwain and P. L. Ward, Lambarde's
Archeion (Cambridge,Mass., 1957), 145-76. On its fate due to relationsbetween Robert Cecil and
Lambarde,who was Egerton's close associate,see W. Dunkel, WilliamLambard, ElizabethanJurist
(New Brunswick,NJ, 1965), esp. pp. 5 and 162.
 SHAKESPEAREAND ENGLISH EQUITY 421

Jurisdiction'is 'limitted in power', but that the other part, concerning'Equitie',is

by contrast 'meere absolute, and infinite'."9Yet Archeionlater wonders in a
practical-mindedway 'whetherit be meet, that the Chancellorshould appointunto
himselfe,and publishto othersany certaineRules& Limitsof Equity,or no'.20The
internalcontradictionhere suggests the inchoatebeginningof the developmentin
the understandingof equity jurisdictionleadingtowardSir FrancisMoore's clear
description(1621),21and then Lord Nottingham'sexact delineations(c.1673)of its
scope.22This progressionoccurredthroughan evolutionof the guiding 'maxims',
procedures,and notablerulingsthat shapedand defined its principles,limits, and
types of concern.

III

Two mid-1960s publicationsare the usually cited first sources for a continuing
streamof criticalessays containingrepetitionsof or variantson the theme of 'law
versus equity' in The Merchantof Venice.The more substantialof these two, a
book-lengthdiscussion of a partialscene of TheMerchantof Venice,has in fact a
very curioushistory.This book,MarkEdwinAndrews'sLaw VersusEquityin 'The
Merchantof Venice',23was actually written thirty years before its publicationin
1965. It was originallya college essay by an able law student, who laterbecamean
assistantsecretaryof the Americannavy. It seems the essay was found in a dusty
librarybox at Andrews'sold college. A letter reprintedin the book (dated23 April
1964-Shakespeare's nominal400th birthday),shows that Andrewswas tracedby
the Universityof Coloradolibrarian,and askedfor permissionto publishhis essay.
The work was lavishly broughtout by the University Press the following year.
This often referencedbut actuallyquite rarebook begins with a highly fanciful
revampingof the trial scene in TheMerchantof Venice.In an expandedcolumn,
parallelwith Shakespeare'stext, Andrews updates the languageand rewritesthe
actions of the trial, with first Coke and then Ellesmeresitting, and with Francis
Bacon cast as Bellario.This redraftedtext is keyed by superscriptednumbersinto
a numberedseries of discussionson points of law and historywhich constitutethe
rest of the book. It is very importantto note, but rarelynoted, that Andrews is
quite free both with chronology and with the play's structure. He ranges in
historicalreferencefrom centuries before to twenty years and more beyond the
19 Lambard,Archeion,48. 'Meere'meant 'pure'or 'sole' in legal contexts (OED 'mere'a2 2), and also
had the meaningas a qualifier(exactlycontraryto today's meaning)of 'in the full sense of the term'
(OED 4). The 'absolute'aspect of the Chancellor'spowers,in which he is 'not limited by the powerof
N2r;see below on how Cowell'sdictionary
the written law', is also stressedin Cowell, TheInterpreter,
caused a scandalby its definitionsof prerogativeas absolute.
20 Lambard,Archeion,74; pp. 74-7 offer interesting suggestions for equity reform, on which see
Mcllwain and Ward, Lambarde's Archeion,158-9.
21 In a letter of advice BishopJohn Williams,the only churchmanto be appointedChancellorafter
to
Wolsey, modernizedin Yale, LordNottingham's'Manual',78-80.
22 In the two treatisesedited ibid.
23 Boulder, Colo., 1965.
422 B. J. SOKOL AND MARY SOKOL

time of the play'swriting,with an evidentaim of showingoff a wide knowledgeof

legal history. He divides Shakespeare'sdepiction of the trial of Shylock versus
Antonio into two separate hearings, with litigants rushing from one end of
WestminsterHall to the other to get a Chanceryinjunctionin equity following
a decision at commonlaw. Thus a section of TheMerchantof Venice3. 1 becomes
two separatescenes, with separatejudges in separatetribunals.Those judges'
identities are associated with actual historical figures whose conflicts reached
crisis-pointtwo decadesafter the play was written.
In the year beforeAndrews'sbook appeared,an essay by Maxine MacKayalso
assertedthat a historicalconflictof Englishcommonlaw with equityinformedThe
Merchantof Venice.Howeverthe main point of MacKay'sclaim was to assertthat
equity in the play was equivalent to mercy, and therefore to the New Law of
Christianity,as opposedto Shylock'srigid and unmercifulOld Law of Judaism.24
This position has been surprisinglyoften echoed concerning The Merchantof
Venice,25but the attributionto Shakespeareof a calumnythat the laws of Judaism
eschew mercy has been well remediedby severalcritics recently.26
Detailed corrections to historical errors in this pioneering article27seem to
have little effect on continued claims that historical conflicts between the
English common law and the equity jurisdiction are represented in The
Merchant of Venice. An allied notion also persists that equity doctrines are
applied by Portia in the play's trial scene, despite contrarywarningsof many
writers, including Sir Frederick Pollock in 1914,28F. Lyman Windolph in
24 M. MacKay,'TheMerchantof Venice:A Reflectionof the EarlyConflictbetweenCourtsof Law and
Courts of Equity', Shakespeare
Quarterly,15 (1964), 371-5: 372, 375.
25 On the play's supposedcondemnationof Shylock's'old law' and praiseof 'Christiancivilisation',
see J. S. Colley, 'Launcelot,Jacoband Esau:Old and New Law in TheMerchantof Venice',Yearbook
of EnglishStudies, 10 (1980), 181-9: 189; for a lauding of the 'more civilised characters'and the
salvation of the 'Christiancommunity' from 'their own Shylockeantendencies' see M. J. Hamill,
'Poetry,Law and the Pursuit of Perfection:Portia'sRole in TheMerchantof Venice',SEL: Studiesin
EnglishLiterature,1500-1900, 18 (1978), 229-43: 232 and 241. More or less similar polaritiesare
adducedin e.g. J. S. Coolidge, 'Law and Love in The Merchantof Venice',ShakespeareQuarterly,27
(1976), 243-63; R. M. Levitsky, 'Shylock as UnregenerateMan', ShakespeareQuarterly,28 (1977),
58-64; L. E. Johnson, 'Shylock'sDaniel: "Justicemore than thou desir'st"', CLAJournal,35 (1991),
353-66.
26 See R. Weisberg,PoethicsandOtherStrategiesof LawandLiterature(New York, 1992),93-104;J. L.
Halio, 'Portia:Shakespeare'sMatlock?',CardozoStudiesin Law and Literature,5 (1993), 57-64: 60 and
62;J. 0. Holmer, TheMerchantof Venice:Choice,Hazard,andConsequence (Houndsmill,1995),232-3;
M. D. Yaffe, Shylockand the JewishQuestion(London, 1997), passim.Similar points were made in
C. Slights's study ofJessica, 'In Defense of Jessica:The RunawayDaughterin the Merchantof Venice',
Shakespeare Quarterly,31 (1980), 357-68: 359. M. A. Hamilton,'The End of Law', CardozoStudiesin
Law and Literature,5 (1993), 125-36: 128 n. 12, explicitly agrees with Halio, 'Portia:Shakespeare's
Matlock?',60, on the Old Testament enjoining mercy, yet acknowledges(p. 132), a view that a
commitmentto the old law is 'deadening';she againqualifiesthis on p. 133.
27 Errorsin MacKay,'TheMerchantof Venice',includingthe equatingof equity with mercyor pardon,
a mistakennotion that English Chancellorsin Shakespeare'stime were churchmen,and other legal-
historicalfaults, are identifiedin E. F. J. Tucker, 'The Letter of the Law in TheMerchantof Venice',
ShakespeareStudies,29 (1976), 93-101.
28 F. Pollock,'A Note on Shylockv. Antonio', Law QuarterlyReview,30 (1914), 175-7: 175, in reply
to J. Hirshfield, 'Portia'sJudgment and GermanJurisprudence',Law QuarterlyReview,30 (1914),
167-74, says, parenthetically,'There is no question of equity in any technicalsense'.
 SHAKESPEAREAND ENGLISH EQUITY 423

1956,29one of ourselves in 1992,30Joan Ozark Holmer in 1995,31and R. S.

White in 1996.32
For instance, a 1990 article asserts that 'the court that tries Shylock's case is
convenedas a court of equity on the lines of Chancery,with its appellaterelation
to common law'.33The notion of an appellatecourt ignores the drama'sessential
premiss that Shylockbrings the case to enforce his bond, not Antonioto obtain
relief from it. The articlenext finds that the ruling favouringShylock cannot be
overturned,stating that the 'rule . . . Equity follows Law' meant that Chancery
could only 'enforce'and not 'annul' 'the letter of the common law'. But English
Chanceryoften did overturnspecific forfeits of bonds. Forgetting its powers of
subpoena,injunction,and imprisonmentfor perjuryor contempt,this then alleges
that 'equity fails beforethe law of propertyin TheMerchantof Venice,as it would
be blunted by the English bourgeoisie'.34In fact, however,the burgeoningequity
jurisdictionof Chancerywas the only prerogativejurisdictionthat was preserved
in the (bourgeois?)revolutionsof the 1640s and 1688.
So ingrainedare similarpremissesthat a 1994articleon TheMerchantof Venice
aims to shed 'new light on the meaning of the trial scene's common law-versus-
equity debate', never doubting that the scene contains this debate. It too easily
connects'a 1615judicialdispute'to the 1596play, while interestinglyarguingthat
'the broader social conflict behind the common-law/equity dispute is not the
primarilyeconomic battle between capitalismand feudalism, but the primarily
political battle between two socioeconomicfactions for the spoils of the nascent
capitalisteconomy'. It concludes that 'the ideologicalbattle fought in Shylockv.
Antoniowould prove to be but an early skirmishbetween the rising and ruling
classes that was to dominatethe next century of English politics'.35
Liberal or Whiggish ideas of history have also become entangled with
allegations that Shakespearewas deeply concerned with contrasting common
law with equity, especiallyin regardto the legal dilemmasimplicit in Measure/or
Measure.For instance,a 1996 articlealleginga crucialrole for 'equity'in this play
begins bluntly:'legalhistoryoften appearsto be little more than a contestbetween
law and equity'.36 Without historical warrant, it then connects the equity
jurisdictionwith social progresstowardsthe positive tolerationof privatesexual
29 F. L. Windolph,Reflectionsof the Law in Literature(Philadelphia,Pa., 1956), 55. A. T. Denning,
Leavesfrom My Library:An EnglishAnthology(London, 1986), 30, makes a slightly ambiguous
statementthat Portiaappliesstrictconstructionand 'hasrejectedany plea for mercyor relief in equity'.
Studies,6 (1992), 60-7.
30 B. J. Sokol, 'The Merchantof Venice and the Law Merchant',Renaissance
31 Holmer, TheMerchantof Venice,212-13, 327-9.
32 R. S. White, NaturalLaw in EnglishRenaissanceLiterature(Cambridge,1996), 164.
33 R. Wilson, 'The Quality of Mercy: Discipline and Punishmentin Shakespeare',The Seventeenth
Century,5 (1990), 1-42: 15.
34 Ibid. 16.
35 S. A. Cohen, "'The quality of mercy": Law, Equity, and Ideology in The Merchantof Venice',
Mosaic,27 (1994), 35-54: 37, 36, 39, 52.
36 J. Levin, 'The Measureof Law and Equity:Tolerancein Shakespeare'sVienna',in B. L. Rockwood
(ed.), Law and LiteraturePerspectives(New York, 1996), 193-207: 193.
424 B. J. SOKOL AND MARY SOKOL

acts. Commentarieson MeasureforMeasurewhich supposethat 'equity'comprises

'everything nice' missing from the harshness of positive law, such as sexual
tolerationor the free pardoningof all crimes, ignore a centralassumptionin the
play, that social and moralchaos result from excessive judicialleniency.37
Confusions may partly arise because the term 'equity' can be employed in
severalinconsistent,or at best partlyoverlapping,senses.38We are not addressing
the argumentsof some who discuss 'equity'in relationto Shakespeare,focusingon
broad philosophicalconcepts or intellectual movements distinct from the par-
ticularmeaningof 'equity'in Elizabethanor Jacobeanlegal practice.For instance
Luke Wilson, perfectly aware of the multiple meanings of the term 'equity' in
philosophical and jurisprudentialtraditions,39chooses to discuss an aspect of
Aristotle'sequity which involves estimatingthe intentionsof lawgivers,and puts
this in analogy with interpretationsof the intentions of playwrights. Others
interestinglydiscuss 'equity' in Shakespeare'sintellectualcontexts in relationto
Classical or humanistic traditions involving truth-seekingthrough probability.
Such discussionsneed not distort legal history.40
To determine whether Shakespearewas concerned about the operation or
principlesof the Englishequity courtswill requirethe fine-grainedinvestigationof
historicalbackground,as attemptedin our next section. For now, let us considerif
Shakespeareever alludedto any of the jurisdictionalrelationsof the severalsortsof
law courts of his time. He avoidedsuch referenceswhere they might have availed
him well, in his frequentcontexts of jesting or facetiousnessaboutlegal jargonor
nicety. So, while the gravedigger'sspeech in Hamlet burlesques the antics of
judiciallanguageconcerningself-drowningin the case of Halesv. Petet,and many
other Shakespearianpassagescontainirreverentallusionsto legal terminologiesor
technicalities,there are no Shakespearianallusions, for instance, to the (droll)
37 This point is noted at the end of Dunkel, 'Law and Equityin MeasureforMeasure',which,however,
seems to equate Egerton's equity jurisdiction of Chancery with the administrationof clemency
(pp. 275-7). White, Natural Law in EnglishRenaissanceLiterature,181-2, offers a cogent argument
againsttheories of 'mercy'as equity in the play.
38 As was well known: 'To the courteous Reader',P7r-A8r,the prefaceto Thomas Ashe, Epiekeia
(London, 1609), cites a variety of descriptions of equity, taken from Aristotle, Cicero, Aquinas,
Plowden,Erasmus,St German,WilliamWest, and others. Severalalternativedefinitionsare exhibited
in West, The SecondPart of Symboleography, 174. See L. A. Knafla, Law and Politics in Jacobean
England:The Tractsof LordChancellorEllesmere(Cambridge,1977), 161-3, for a delineationof several
definitions.D. E. C. Yale'sintroductionto EdwardHake,Epiekeia:A DialogueonEquityin ThreeParts
(London, 1953), pp. xiii-xxix, carefully analyses and critiques theoretical distinctions used in
definitions. This comments, for example, that Hake was unconcerned'with the antithesisof rights
in remand in personamwhich has so unnecessarilyvexed laterauthorson equity jurisprudence'(p. xv),
and in a note to this states:'The whole controversyreallygoes to show that jurisprudencemay analyse
the law but only legal history explainsit'.
39 L. Wilson, 'Hamlet:Equity, Intention,Performance',Studiesin the LiteraryImagination,24 (1991),
91-113: 96.
40 J. Altman, The TudorPlay of Mind (Berkeley,Calif., 1978), esp. pp. 67, 169; this book (p. 390),
suggests the sort of 'equity' it discusses is only 'virtually' a kind of law. L. Hutson, "'Our old
storehouse":Plowden'sCommentaries and PoliticalConsciousnessin Shakespeare',in P. Davidhaziand
H. Klein (edd.), ShakespeareYearbook7 (Lewistown,NY, 1996),249-73, and L. Hutson, The Usurer's
Daughter:Male Friendshipand Fictionsof Womenin Sixteenth-Century England(London, 1994), allege
more direct connectionsof similarmatterswith English legal history.
 SHAKESPEAREAND ENGLISH EQUITY 425

contemporaryfictionalbills of latitat, by means of which King's Bench took over

some of the profitablecivil law workof the Courtof CommonPleas.41It is not easy
to know whether Shakespearekept off such territories,howeverripe for parody,
becausehe was leery of strayingon to dangerousgroundsfor humour.But we are
sure that Shakespeare'stexts makeno directreferencesto earlymodernconflictsof
English jurisdictions.42
An only nominal exception concerns a reference to praemunire,a prohibited
appeal from the king's court to another jurisdiction, in the play Henry VIII.
Suffolk says to CardinalWolsey:
Lord Cardinal,the King'sfurtherpleasureis-
Becauseall those thingsyou havedone of late,
By yourpowerlegantinewithinthis kingdom,
Fall into th' compassof a praemunire-
That thereforesuch a writ be sued againstyou,
To forfeitall yourgoods,lands,tenements,
Chattels,and whatsoever,and to be
Out of the King'sprotection.This is my charge.
(AIT 3. 2. 338-43)
In history, as in the play, these accusationsagainstWolsey did not involve any
conflict between English jurisdictions,and even if Shakespearewrote these lines
he was only reflectingthe historicalrecord.43Shakespearein fact strictly avoided
allusion to uses of praemunirein English jurisdictionaldisputes, as well as the
jocularor figurativeuses of'praemunire'that featuredin his age, as seen in OED3.
Anothergeneralpoint is that, except in one possibleplaceto be discussedin the
next section, Shakespearenever made any reference to the English equity
jurisdiction.He severaltimes did refer to a generalconcept of 'equity', meaning
by this only a kind of rightfullawfulness(as in OED 1 and 2, not 3, 4, or 5). This is
spokenof in variousplays either as endangeredor as resurgent,in such phrasesas:
'equity stirring'(1H4 2. 3. 8);44'equity exiled' (CYL 3. 1. 146);or 'downtrodden
equity' UN 2. 1. 241).
41 See Knafla, Law and Politicsin JacobeanEngland,117. These bills are describedin more detail
below.
42 Just possiblysuch conflictis impliedin the wranglingover the use of StarChamberfor 'riot'in WIV
1. 1. 1-35. Such allegationswere often fictional means to extend jurisdiction:see W. B. Willcox,
'Lawyers and Litigants in Stuart England', CornellLaw Quarterly,24 (1939), 533-58: 536; T. G.
Barnes, 'Star Chamberand the Sophisticationof the CriminalLaw', CriminalLaw Review (1977),
316-26: 319.
43 G. W. Keeton,Shakespeare's LegalandPoliticalBackground (London, 1967),31, points out that this
passage'uses the very wordsof the Statuteof Praemunire[16 Rich. II, c.5.], but, of course,Shakespeare
would find these words in any accountof the fall of Wolsey'.
44 C. E. Phelps, Falstaffand Equity: 4n Interpretation (Cambridge,Mass., 1901) holds that Falstaff's
quip 'no equity stirring'is an allusionto the 'warbetweenthe [commonlaw and equity] courts'by way
of a topical'gag'(repeatedon pp. 6, 26, 71, 87, 89). This is accompaniedby repetitiveaccountsof many
elements of the 'law versus equity in The Merchantof Venice'myth, although the book only briefly
mentions the play (pp. 123-4). Phelps is not, of course, cognizantwith later work showing reduced
friction between common law and equity in the later years of Elizabeth.In support of his claims he
alleges the opposite (pp. 154-5).
426 B. J. SOKOL AND MARY SOKOL

Such uses surelywerenot impliedallusionsto the courtof Chanceryor to lesser

equity courts, or to the operationsof equity maxims or procedures.However, in
Shakespeare'stime the opportunityfor equitablerelief from a conditionalbond
like Shylock'swas certainlyavailablefrom such courts, and was well knownto be
so.45This may raise a question:is there a discerniblereasonwhy no such relief is
ever thought of during its trial scene or elsewhere?Despite the huge attention
given to Shylock'scase, the most famousever of all fictionaltrials,no singlereason
for this omission has been agreed.
Some suggestionsarebasedon the fact that in 1597-9 Shakespeare'sown family
entered a Chancerysuit attempting to regain property that they had lost in a
forfeitedmortgage.46This suit could have been foreseenat the time of the play's
writing,as it followeda series of King's Bench actionsstartingin 1588. Thus one
1996 commentaryproposes that, in the palpable omission of equity from The
Merchantof Venice,Shakespeare'is obliquelycommentingon the existing system
of equity in Englandby implyingthat the problem[of Shylock'sbond] could have
been circumvented and more expeditiously solved without anxiety if equity
existed'.47This goes on to suggest unconvincinglythat 'Shakespeare'sinbuilt
flattery of the English monarchicalsystem of equity, may well reveal ulterior
motive at a time when he was attempting to pursue through Chancerya case
involving his own propertyinterest'.48
There are good reasons why the presumptions widespreadsince the 1960s
about equity and The Merchantof Venicewere not the common currencyof the
previous hundred years of subtle internationallawyer's wranglings about the
play.49 To assertthese presumptionsone must overlookthe facts that Portiaasks
Shylock for human mercy, not the bench for the benefit of an equitableremedy,
and moreover that Portia ripostes Shylock's refusal not with an equitable
injunction but with positive law, indeed statutory criminal law. One legally
sophisticatedcommentatordid just this: in 1930 the often facetiouslaw professor
George Keeton wrote that, while 'common law, in fact, can do nothing to help
45 See E. G. Henderson,'Relief fromBonds in EnglishChancery',American Journalof LegalHistory,
18 (1974), 298-306; J. H. Baker,An Introduction
to EnglishLegal History(London, 1990), 370-1.
46 e.g. W. N. Knight, 'Equity, TheMerchantof Veniceand WilliamLambarde',Shakespeare Survey,27
(1974), 93-104: 98-103; A. Firenze, Love's Usury: Love and Greed in the Anti-SemiticWorldof
Shakespeare's Merchantof Venice(New York and London, 1989), pp. vii-viii. The documentsof this
dispute are partlyreproducedin E. K. Chambers,WilliamShakespeare: A Studyof Factsand Problems
(Oxford, 1930), ii. 35-41, and translatedin Phelps, Falstaffand Equity,157-70. It is alleged to have
influenced Measurefor Measurein J. W. Dickinson, 'RenaissanceEquity in Measurefor Measure',
ShakespeareQuarterly,13 (1962), 287-97: 292, which also equates Seneca's clementia,which is 'not
Christianmercy but merely a rationalmercy', with 'equity', whereby courts may pardon offenders
(pp. 288-9).
47 White, Natural Law in EnglishRenaissanceLiterature,166.
48 Ibid. 167. H. Berry, 'Shylock,RobertMiles, and Events at the Theatre', Shakespeare Quarterly,44
(1993), 183-201, suggests that Shakespearemay have knownabouta roughlycontemporaryChancery
action over a bond involvingsome theatreproprietors,but it is not made clear how this lawsuitcould
have inspiredthe trial in TheMerchantof iVenice,where no equitablerelief is sought.
49 These debates are summarizedin 0. H. Phillips, Shakespeareand the Lawyers(London, 1972),
91-118.
 SHAKESPEAREAND ENGLISH EQUITY 427

Antonio . . . Portia, however, is so "learnedin the law" that she practisesthe

Chancery side as well'. Keeton, himself an equity expert, was well aware that
'Equity is not mercy',50and so betters later commentarieswhich find equity
simply equivalentto 'the quality of mercy' famously describedin the play. (In
fact the word 'mercy' appearsin every Shakespeareplay except Julius Caesar.)
We think that what misled Keeton is also what has misled many expert legal
commentators on Shakespeare. This is the allure of specialist technicality-
spotting in prestigious literary texts, a temptation that has led to some odd
textual and contextual distortions.51
A position holding that, on the contrary, Shakespearewas not primarily
concerned with legal accuracy, was taken in 1988 by Richard Posner, who
suggested that in the trial in The Merchantof Venice,'the absence of explicit
reference to equity jurisprudenceor to any other basis for the ameliorationof
penalties or forfeituresin contracts is unrealistic,but a literaryimperative;the
audiencemust takeseriouslythat Antoniowill be killed'.52Thus Posnerholds that
a notion of equity or relief from bonds is implicitlypresentin the play, but kept at
bay for dramaturgicreasons. Posner'smixed position is partlylauded and partly
damnedby RichardWeisberg,53 whose own positionis that a deliberateoverthrow
of 'equity'by 'law',or of 'mediation'by strict 'commitment',is the hidden central
motive of the play's plot. Posner and Weisbergagreethat an unpopularalien like
Shylock 'would mistrust a jurisprudencethat gave judges a broad discretion to
mitigatethe rigorsof legal rules, for he could expect any discretionto be exercised
against him'.54
However interesting,these reflectionsdo not addressthe scandalof the trial in
TheMerchantof Venice.This is identifiedby Moelwyn Merchantas its 'offensive
structure'in which 'a civil action ... modulatesto an equity action based on an
appealto misericordia,and this in turn changestragicallyto a criminalaction for
conspiracy'.55The most usual excuse for anomalies such as these is that
50 G. W. Keeton, Shakespeareand his LegalProblems(London, 1930), 18, 19.
51 e.g. a 1924 discussionby an Americanlawyerwho, in the dry summationof Phillips, Shakespeare
and the Lawyers,109, held: 'The action of the play must be after AD 311 when Constantinemade
Christianityan official religion, and before AD 320 when the right to seize the body of an insolvent
debtorwas abolished.The scene is laid, not in Venice,but in the State of the Veneti (Aquileia)where
Romanlaw appliedin the fourthcentury.The Duke is not the Doge but the Dux or militarygovernor
actingundera "charter"of authority,and Portiais an arbiter.The Merchantof Venice,then, is one of the
"Roman"plays.' Such technicalingenuitydependson pushingaside all that will not fit, overwhelming
how, crucially,the Rialto, ducats, Mexico, etc., signal Renaissanceworld trade.
52 R. A. Posner,LawandLiterature:A Misunderstood Relation(Cambridge,Mass., and London, 1988),
94. It is hardto agreethat Shakespearewas disabledfromexpressinga theme of equity in TheMerchant
of Venicebecause of the demands of plot. For, when he chose to touch on contentious matters, he
characteristicallymade good use of apparentartisticconstraintsto cover his tracks.
53 Weisberg,Poethicsand OtherStrategies,207-10.
54 Posner,Law andLiterature,97, whichis discussedin Weisberg,Poethicsand OtherStrategies,210. A
similarview is taken by Weisberg,ibid. 94-104, esp. p. 103.
55 W. M. Merchant,'Lawyerand Actor:Processof Law in ElizabethanDrama',EnglishStudiesToday,
3 (1964), 107-24: 123. The scandal is further articulatedin T. Ziolkowski, The Mirror of Justice
(Princeton,NJ, 1997), 175-82, within a chapter(pp. 163-83) which adduces the familiarlaw versus
428 B. J. SOKOL AND MARY SOKOL

Shakespearewas unconcernedwith real courts, or the real world, and caredonly

for a magicaltheatricaleffect.'6A few alternativeshave been suggested,including
some wherejurisdictionsknownto Elizabethanshavebeen proposedas models for
the Shakespeariantrial. These include Star Chamber,"Staple courts,'5possibly
the civilianAdmiraltyjurisdiction,' and the proposalthat Shakespearemay have
had in mind the Law Merchanttribunalsthat were still active althoughin decline
in his time.6"EuropeaninternationalLaw Merchant had Italian origins, and it
rendered-as in the play-swift and summary judgments over commercial
disputes. In England it also combined a civil and criminaljurisdiction,as seen
in Ben Jonson's play BartholomewFair. It was often presided over by mayors,
hardlythe doge of Venice-but then Shakespeare'splayrefersto that greatstateas
having an endangered'charterand . . . city's freedom' (4. 1. 38). By the early
seventeenthcentury Coke thought, perhapspropagandized,that Law Merchant
had been absorbedinto common law,61 while Ellesmereexcluded merchantcases
from Chanceryexcept those involving fraud.62If there is some validity in our
hypothesis that Shakespeare'sspectatorsmay have rememberedLaw Merchant
and its urbantribunalswhen they saw Shylock'slaw case, then equity has no part
in the trial.

IV

To appreciatethe quite different circumstancesconcerning jurisdictionssur-

rounding TheMerchantof Veniceof approximately1596, the quartoKing Learof
1604-6, and the revisions to the folio King Lear of a later date, we must look
very closely at the sequenceof emergentideas and events leadingto the crisis of
1616.
In 1616 the conflict between Sir EdwardCoke, ChiefJustice of King's Bench,
and the Lord Chancellor, Thomas Egerton, Lord Ellesmere, finally became
intolerableto the king, and Coke was dismissed from office.'3 The story is well

equity theme in TheMerchantof Venice(indeedrelyingon Andrews),but unusuallyconcludesthat the

play portrays'an irresponsibleequity'.
56 For instancesspanningour centurysee Pollock,'A Note on Shylockv. Antonio',and W. C. Jordan,
'Approachesto the Court Scene in the Bond Story: Equity and Mercy or Reason and Nature',
Shakespeare Quarterly,33 (1982), 49-59: 58.
57 In a half-heartedsuggestionin a note in Pollock, 'A Note on Shylock v. Antonio', 176.
58 H. Saunders,'Staple Courts in TheMerchantof Venice',Notes and Queries,31 (1984), 190-1.
59 Andrews,Law versusEquityin 'TheMerchantof Venice',49, mentionsthis jurisdiction.In the 16th
cent. it had particularauthorityin cases where foreign trade was involved, but was also increasingly
adjudicatingdomestic cases.
60 Sokol, 'The Merchantof Venice and the Law Merchant'.This takesaccountof the fact that these
tribunalsin decline may not ever have been very active.
61 See T. F. T. Plucknett,A ConciseHistoryof the Conmmon
Law (Boston, Mass., 1956), 663.
62 See Yale, LordNottingham's'Manual',13.
63 Cokehad been appointedas ChiefJustice of CommonPleasin 1606and then King'sBench in 1613,
 SHAKESPEAREAND ENGLISH EQUITY 429

documented, the sequence being Coke's insistence on the supremacy of the

common law, Ellesmere'sintransigence,James's wrath, and the machinationsof
Sir Francis Bacon. The immediate cause of Coke's dismissal in 1616 was his
encouragement of proceedings in praemunireagainst Chancery officials and
litigants,64and his lone refusalamong the twelve common law judges of England
at the famous meeting of 1616 to agree to James's demand that they stay
proceedings to consult with him in a case where his interest was concerned.65
The story has been presented variously as Coke's stand against the political
absolutismof King James; a jurisdictionalstruggle for precedencebetween the
common law courts and prerogativecourts; and the unhappy result of personal
animositybetween Coke and Ellesmere.66
The crisisof 1616was not a suddenoccurrence.The clashbetweenthe common
law courts and the prerogativecourts was anticipatedin medieval England, in
disputes concerningthe relationshipbetween the king's courts and the ecclesias-
tical courts.The boundariesof the jurisdictionbetweenthe ecclesiasticaland royal
courts were supposed to have been settled by the early fourteenthcentury,67but
the royal courts issued writs of praemunire,68first to prevent suits being taken to
Rome, then to prevent papallegates assertingtheir authorityin England.Finally
the royal courts issued writs of prohibition to intervene in litigation in
ecclesiasticalcourts within England, for example asserting the common law's
right to hear cases of real property.
As we have noted, in 1529 CardinalWolsey, Lord Chancellorfrom 1515, was
indictedforpraemunire. Beforehis fall Wolseyhad been much dislikedby common
lawyersfor his apparentdisregardfor the common law and his interferencewith

which was regardedas an elevation:he was thereforethe leadingcommonlaw judge. He was a member
of parliamentin 1589, Speakerof the House in 1593, and was returnedin 1621, 1624, 1626, and 1628.
Ellesmerehad been appointedMasterof the Rolls in 1594 and then Lord Keeperby Elizabethin 1596,
holdingboth offices until the next reign. So he presidedover the court of Chanceryand held the Great
Seal. In 1603Jamesappointedhim Lord Chancellorand he held this office, even in failinghealth,until
his death in 1617.
64 Glanville'sCaseCro. Jac. 344. For Ellesmere'sviews and three remarkableletters of comment by
FrancisBacon see S. E. Thorne, 'Praemunireand Sir EdwardCoke', HuntingtonLibraryQuarterly,2
(1938), 85-7, and Francis Bacon, Works(London, 1872- ), xii. 246-54, respectively.See also H. J.
Berman,'The Originsof HistoricalJurisprudence:Coke, Selden, Hale', Yale Law Review,103 (1994),
1651-738: 1685, and J. H. Baker, 'The Common Lawyers and the Chancery:1616', IrishJurist, 4
(1969), 368-92: 374.
65 Case of the Coinmendams. Colt and Glover v. Bishopof CoventryMoore 898; 1 Rolle 451. See
W. Holdsworth, .4 Historyof EnglishLaw (London, 1903- ), v. 438-40; Baker, An Introductionto
EnglishLegalHistory,122-6; Berman,'The Origins of HistoricalJurisprudence',1675.
66 See G. W. Thomas, 'JamesI, Equityand Lord KeeperJohn Williams',EnglishHistoricalReview,91
(1976), 506-28: 508; Baker,'The CommonLawyersand the Chancery',369;J. P. Dawson, 'Coke and
EllesmereDisinterred:The Attackon the Chanceryin 1616', IllinoisLaw Review,36 (1941), 127-52:
128;Yale, LordNottingham's'Manual',12. When FrancisBacon becameChancellorhe claimed:'now
the men are gone the matteris gone' (Works,vi. 198).
67 By CircumspecteAgatis 1285 and ArticuliCleri 1315. See Baker,.4n Introductionto EnglishLegal
History,149; Dawson, 'Coke and EllesmereDisinterred', 128.
68 Using the Statutesof Provisorsof 1351 and 1353, and the Statuteof Winchesterof 1393 by which
confiscationof propertyfollowed a praemunireaction.
430 B. J. SOKOL AND MARY SOKOL

its courts.69 Wolsey was succeeded as Lord Chancellor by Sir Thomas More, who
is said to have tried to resolve the jurisdictional disputes by asking all the common
law judges to dine with him and telling them that if they would 'mitigate and
reform the rigour of the law' he would desist from interfering with judgments at
common law. His request was refused.70
There is an appearance of continuity between these events and the Jacobean
conflicts, but such a reading is too superficial. W. J. Jones and others argue that
the Elizabethan, and therefore Jacobean, court of Chancery should really be
considered a different institution from that of Henry VIII because of legal and
procedural developments.7' Moreover, several complex new developments pre-
cipitated the Jacobean jurisdictional crisis, including 'the rise in prominence of
new courts of law' and 'the impact of new social and economic demands'.72
Sixteenth-century England saw great growth in volume of litigation reflecting the
expansion of population, trade, and commerce.73 Inflation and the 40-shilling limit
on cases in the local county courts meant that the royal courts were the
beneficiaries of this increased litigation. The various royal courts, particularly
King's Bench, Chancery, and newer prerogative courts such as Admiralty,
expanded their jurisdictions beyond former boundaries.'4 King's Bench heard
cases formerly the preserve of Common Pleas, such as debt and detinue, making
use of an old rule which allowed complaints by bill to be brought against King's
Bench prisoners. Another effective device used by King's Bench was allowing
litigants to sue by bill on the legal fiction of a trespass in Middlesex, extended by a
bill of latitat ('he lurks') to cover the whole country. An immense increase in the
use of bills of Middlesex and bills of latitat took place in the early seventeenth
century.7
Meanwhile Thomas Egerton, aided by William Lambarde, and following in the
footsteps of an earlier Lord Keeper of the Great Seal (1558-79), Sir Nicholas
Bacon, father of Francis Bacon, initiated a series of important procedural reforms
in Chancery. These regulated fees charged by Chancery officials and worked to

69 Baker,An Introduction to EnglishLegalHistory,123;id., TheReportsof Sir John Spellman(London,

1978), 77.
70 Baker,An Introductionto EnglishLegal History, 124. See also Yale, LordNottingham's'Manual',
10-11; Baker, TheReportsof Sir John Spellman,41.
71 W. J. Jones, TheElizabethanCourtof Chancery(Oxford, 1967),467. More recentresearchindicating
a late date for the developmentof the equitablejurisdictionof Chanceryis very well reviewedin J. A.
Guy, 'The Developmentof EquitableJurisdictions,1450-1550', in Ives and Manchester(edd.), Law,
Litigantsand the LegalProfession,80-6.
72 Knafla,Law and Politicsin JacobeanEngland,105-6.
73 See Willcox, 'Lawyersand Litigants in Stuart England';P. Clarkand P. Slack, EnglishTownsin
Transition1500-1700 (Oxford, 1976), 83; J. H. Baker, 'Law and Legal Institutions', in J. F.
Andrews (ed.), WilliamShakespeare:His World,his Work,his Influence(New York, 1985), 41-54:
41; W. R. Prest, The Rise of the Barristers:A Social Historyof the EnglishBar 1590-1640 (Oxford,
1986), 5-6.
74 Baker, The Reportsof Sir John Spellman,51-83.
75 Baker,An Introduction
to EnglishLegalHistory,51.
 SHAKESPEAREAND ENGLISH EQUITY 431

end administrativeincompetenceand unnecessarylitigation.76Egertonalso made

rules to regulate Chanceryjurisdiction,for example as we have noted refusing
access to the court to merchantsexcept in cases of fraud. Initiallythese reforms,
togetherwith the consequencesfollowingthe decision in Finchv. Throgmorton in
1598,7 had the effect of reducing Chancery business. But within a few years
Chancerybusiness began to grow more rapidly than ever before, and Egerton
resumed his use of the common injunction to interfere with common law courts.78
The common law courts of King's Bench and Common Pleas viewed
encroachments and interference by the newer prerogative courts with suspicion.
To curb interference they used writs of supersedeas (to stay proceedings),
certiorari (to remove the records of an inferior court to a higher court) and
prohibition (to forbid an inferior court from proceeding) against the courts of
Admiralty, Requests, and the High Commission.7' Despite this activity, D. E. C.
Yale claims that towards the end of Elizabeth's reign relations between the
differing jurisdictions improved.8" W. J. Jones emphasizes Elizabethan practices
allowing co-operation between Chancery and other jurisdictions; such dealings,
intended to promote justice, were sometimes based on informal arrangements
and sometimes on the appointment by Chancery of commissioners drawn from
other jurisdictions,81 and these were 'indicative of a sense of cohesion in
judicature'.82 Thus common law judges often sat in Chancery and cases which
raised important issues could be referred to all the judges of England sitting
together to hear argument.
However, relations entered a new and discordant phase following the coronation
of James and then the appointment of Coke as Chief Justice of Common Pleas in
1606. Ellesmere angered common lawyers by resuming his use of the common
injunction and he began again to examine parties after common law judgments.83
Tracts criticizing or defending Ellesmere's actions began to circulate in manu-
script, indicating that 'the relations between courts of equity and common law had
now entered the arena of public debate'.84
At first Coke turned his attention to the ecclesiastical courts and newer
prerogative courts, and then finally against the court of Chancery. In particular,

76 See Jones, TheElizabethanCourtof Chancery,78-87; Knafla,Law andPoliticsinJacobeanEngland,

156-7.
77 The issue in Finchv. Throgmorton, cited Cro. Jac. 344, was whetherthe Chancellorcould provide
equitablerelief to partieswho had judgmentat commonlaw. The case was consideredby all the judges,
from commonlaw and equitablejurisdictions,who held that casesdecidedat commonlaw could not be
reopened.See Knafla,Law and Politicsin JacobeanEngland,159.
78 Ibid. 163 n. 4.
79 Dawson, 'Coke and EllesmereDisinterred', 128-9.
80 Yale, LordNottingham's'Manual',11.
81 Jones, TheElizabethanCourtof Chancery,481-4 and passim.
82 Ibid. 278.
83 Knafla, Law and Politicsin JacobeanEngland,163.
84 Ibid. 160.
432 B. J. SOKOL AND MARY SOKOL

he challengedthe jurisdictionsof the ecclesiasticalcourts85and the equity court of

Requests.86He also questionedthe use of ex officiooathsby the High Commission
which compelled people to incriminatethemselves,87and attackedthe provincial
equity courts of the north and the Welsh Marcheswith writs of habeascorpusand
prohibition.88EventuallyCoke directlyaddressedthe long-standingdisputeabout
the right of Chanceryto reopenjudgmentsat commonlaw, relyingon the statute4
Hen. IV, c.23 (1403) that judgmentsin the king's courts were to be left in peace
unless reversedby attaintor writ of error,or on the praemunirestatutes.89King's
Bench issued writs of prohibitionand habeascorpusagainstthe courtof Chancery,
and finally considered praemunire in Glanville's Case in 1616.9"
It is significant that Coke's actions took place in the new reign. Although
tensions between the use of the royal prerogativeand parliamentwere present in
Elizabeth'sreign, they did not becomeso openly a matterof public conflict.James
arrived in England with firmly held opinions on the respective roles of the
monarchyand the law. Scotland traditionallyhad closer ties with France than
England.Jamesderivedmanyof his ideasfrom the Frenchsixteenth-centurylegal
philosopherJean Bodin, who believed that just as God ruled the universe, so
should a king rule as an absolute monarch on earth. Parliamentwas probably
surprisedin 1603 whenJamestold it that he was 'the Husbandand the whole Isle
is my lawfulWife; I am the Head, and it is my Body'.91AlthoughJamesprofessed
to love the commonlaw,92he did not hesitateto point out whathe consideredto be
its faults:that it was unwrittenand uncertain.93This was at variancewith Coke's
belief that the historicalcharacterof the commonlaw gave it stabilityand political
and moralauthority.94 Yet it has been suggestedthat it was Coke'sand not James's

85 e.g.in FullersCase(1607)12CokeRep.41. SeeDawson,'CokeandEllesmere Disinterred',129,on

howin thiscase'occasionwasseizedto claimthebroadestpowerin commonlawcourtsto definethe
limitsof the ecclesiastical
jurisdiction'.
86 e.g. in Pensonv. Cartwright,Cro.Jac.345(1614).
87 e.g. in Prohibitions
delRoyof 1608,12 CokeRep.63.
88 See the advisoryopinionin 12 CokeRep.50.Fora discussionof theseeventssee Dawson,'Coke
andEllesmere Disinterred',129-30.
89 See Heathv. Ridley(1614)2 Bulstrode194,Cro.Jac.335,whereCokeat King'sBenchrefusedto
obeya Chancery injunction,and Wright'sCase(1614)MooreKB 836, 1 RolleRep.71, whereCoke
considered prohibitionsagainstChancery. Coke'sactionsin theEarlof Oxford's
Case(1615)1 Rep.Ch.
1 incurredthe particular enmityof FrancisBaconandEllesmere.
90 Cro.Jac.344(1614).SeeDawson,'CokeandEllesmere 137;Knafla,LawandPolitics
Disinterred',
inJacobean England, 170.Fora fulldiscussionof Coke'sinterventions encroachments
againstperceived
of equityagainstthe commonlawsee C. Gray,'The Boundaries of EquitableFunction',American
Journalof LegalHistory,20 (1976),192-226.
91 C. H. Mcllwain,ThePoliticalWorks ofJamesI (Cambridge, Mass.,1918),p. xxxv.
92 In Basilikon Doron,in Mcllwain,ThePoliticalWorks ofJamesI, 39,Jamesadvisedhissonto 'Nexte
the Scriptures,studiewell your owne Lawes'.In his 1607 speechto parliament (ibid. 292), he
announced that'thegroundsof the CommonLawof England,arethebestof anyLawin theworld,
eitherCiuilor Municipall, andfittestforthispeople'.
93 SeeJames's1607and1609speechesto parliament (ibid.293and306-13).
94 See Coke's'A Readingon 27 Edwardthe First. . .', consistingof twenty-seven 'Reading[s]on
 SHAKESPEAREAND ENGLISH EQUITY 433

views which representeda remarkablechangein attitudesto law and history, and

that we owe to Coke the theory later to become known as historical jurispru-
dence.95In the sixteenthcenturylawyersdid not have such a theoryof the origins
of the English common law, although the humanist influence behind the
ElizabethanSociety of Antiquarieshad led to a renewed interest in early Year
It is evidentthat bothJamesand
Booksand a greatersense of historicalrelativity.96
Coke held firm opinions and neither was to be easily accommodated.
The struggle between Coke and James has been representedas a paradigmof
the conflict which was to lead to civil war.97Certainly there were important
constitutional questions behind the jurisdictionaldisputes. Debates on mixed
monarchy,divineright, and royalprerogativewere linkedwith conflictingtheories
on the nature, sources, and role of law.98These debates were played out in
disputes between the courts.
Rumours arose that James admired the Roman derived civilian or civil law,
although in his 1609 speech to parliamenthe strenuously denied any wish to
introduce it to England. At the very same time he suggested some civilian-like
reforms.There was a limitedEnglishcivilianjurisdiction.Civilianlawyersstudied
at Oxfordand Cambridge,were membersof Doctors' Commons,and practisedin
the prerogativeor ecclesiasticalcourts.Many of them subscribedto Bodin'stheory
of absolute monarchy, as did Francis Bacon, the Attorney-General. They
supported systematizationof the law, and looked down on the common law
because of its inconsistencies and use of legal fictions.99James's 1609 speech
suggested three reformsto the common law: an end to the use of Latin and Law
French which was understoodonly by lawyers;that the law should be settled and
written;and lastlythe reviewof statutelaw and its reconciliationwith case law. To
his hearers, many of them common lawyers, this suggested support for what
Benthamwas to call the codificationof the common law, an idea not welcome to
most of them.100
Relations worsened in 1607 in the aftermathof the publication of Dr John
Fines', in EdwardCoke, 'A Readingon 27 Edwardthe First [or 27] Reading[s]on Fines', in ThreeLaw
Tracts(London, 1764),211-78: 222-6, and also the prefacesto Coke'sthird,sixth, and eighthreportsin
EdwardCoke, TheReports(London, 1826):vol. ii, pp. iii-xxiii (esp. pp. xi ff.); vol. iii, pp. iii-xix (esp.
pp. vi ff.); vol. iii, pp. iii-xiii (esp. pp. xvi ff.).
95 See K. Sharpe and C. Brooks, 'History, English Law and the Renaissance',Past & Present,72
(1976), 133-42, and Berman,'The Origins of HistoricalJurisprudence',1680 and passim.
96 Many common lawyersattendedOxford and Cambridgeand studied the civil law before going to
the Inns of Court. See Sharpeand Brooks,'History, English Law and the Renaissance',137;Berman,
'The Origins of HistoricalJurisprudence',1659. See also Baker, The Reportsof Sir John Spellman,
32-4.
97 Berman,'The Origins of HistoricalJurisprudence',1689.
98 See I. Ward, 'The Political Context of Shakespeare'sConstitutionalism',in Klein and Davidhazi
(edd.), ShakespeareYearbook7, 275-90: 275-83; C. Gray, 'Reason,Authorityand Imagination:The
Jurisprudenceof Sir Edward Coke', in P. Zagorin (ed.), Cultureand Politicsfrom Puritanismto the
Enlightenment(Berkeley,Calif., 1980), 25-66; Berman,'The Origins of HistoricalJurisprudence'.
99 Berman,'The Origins of HistoricalJurisprudence',1670.
100 Mcllwain, The Political Worksof JamesI, 312.
434 B. J. SOKOL AND MARY SOKOL

Cowell's law dictionary,The Interpreter.?'0Cowell was a civilian and had been a

memberof the College of Civil Lawyersat Doctors' Commonsin 1584. By 1598
he was Regius Professorof Civil Law at Cambridgeand the Master of Trinity
Hall. His patronwas RichardBancroft,from 1604 the Archbishopof Canterbury.
In 1604 Cowell and others had prepareda list of canons for the archbishopto
which all clergywere supposedto subscribe.This causedconcernin parliamentary
circles becauseof the dangerthat the High Commissioncould now use ex officio
oaths to demand to know if a cleric accepted the canons. Refusal to reply could
lead to loss of livings or worse.'02
As a civilianDr Cowellwas influencedby ideason codification,and in 1605had
published a book which set out English law in the form given by Justinian's
Institutes.Coke was not pleased and is said to have thereafterreferredto him as
'Dr. Cow-heel'."'3Howeverit was the publicationof Cowell's TheInterpreter that
caused the greatest consternationto common lawyers, including Coke. In this
book Cowell defines the king as being above the law in his absolutepower, and
above parliament,and defines the royal prerogativeas the king's pre-eminence
over all other people and the common law. The story circulatedthat the king at
dinner had privatelyapprovedthe work and criticizedthe common law.104This
angeredparliament,and the king suppressedthe book by proclamation.''0
In 1608 a contentiousmeeting took place at Whitehallbetweenthe king and all
the judges to answerBancroft'scomplaintto the king about writs of prohibition
raised againstecclesiasticalcourts by King's Bench. Coke's retrospectiveversion
of events is consideredsuspect,but briefcontemporaneousnotes weretakenby Sir
Julius Caesar,Master of the Rolls, and the event is also recordedin contempora-
neous letters.106Bancroftsaid that, as judges were delegatesof the Crown,James
could decide the case himself."17 James remarkedcontentiouslythat the judges
were like papistswho referredto the scripturesand yet reservedthe interpretation
to themselves, because the judges cited statute'08 and reservedinterpretationto
themselves. Coke objectedto the whole proceedingsas not founded on law, and
101 For an accountof the Cowellaffairsee J. Simon, 'Dr. Cowell', Cambridge
LawJournal, 26 (1968),
260-72.
102 Simon, 'Dr. Cowell', 267.
103 Ibid. 263.
104 See the king's denial in 1609, printed in McIlwain, The Political Worksof JamesI, 310.
105 Proclamationon 'D. Cowelsbooke',in J. F. Larkinand P. L. Hughes, StuartRoyalProclamations
(Oxford,1973),i. 243-5. In 1615the civilianstook humorousrevengeby entertainingthe king when he
visited Cambridgewith a play, Ignoramus,which mockedthe commonlawyersfor their ignoranceand
crude use of Latin. The leading actor mimickedthe voice and dress of Coke. The king enjoyed the
entertainmentso much he saw the play a second time, but Coke was said to have reactedwith perhaps
understandablebitterness.See Simon, 'Dr. Cowell',271, and Mcllwain, ThePoliticalWorksofJamesI,
p. lxxxviii.
106 Coke's and the other versionsare given and discussedin R. G. Usher, 'JamesI and Sir Edward
Coke', EnglishHistoricalReview,18 (1903), 664-75. See 12 Coke Rep. 65.
107 Usher, 'JamesI and Sir EdwardCoke', 664. See also C. D. Bowen, TheLionand the Throne:The
Life and Timesof Sir EdwardCoke1552-1634 (London, 1957), 261-4.
108 Here Circumspecte Agatis 1285 and ArticuliCleri 1315.
 SHAKESPEAREAND ENGLISH EQUITY 435

said that the common law protectedthe king. James then becamevery angryand
said this was a traitorousspeech, becauseit was the king who protectedthe law,
and not the law which protectedthe king. But James'sangerseems to have gone
beyond words. In one accounthe is said to haveclenchedhis fist, whereuponCoke
fell on all fours and askedfor compassionand pardon.James was only restrained
by the Lord Treasurer,RobertCecil, relatedto Cokeby marriage,who on bended
knee askedfor the king's favour.News of the remarkableevents quicklycirculated
widely aroundthe Inns of Court and legal and literaryLondon.'09
Following this, James's speech to parliamentin March 1609 mentioned Dr
Cowell's book of 1607 to deny wanting to bring in civil law. James went on to
expound his idea of the source of law, opposing Coke's remarksin 1608. He
arguedthat kings have power of life and death over subjectsand are accountable
to no one but God, suggesting that they 'haue power to . . . make of their
subjects like men at the Chesse'. It is the king alone who makes the law, but
then he binds himself both tacitly and expressly to observe the laws of the
kingdom.ll
Within a yearfurthercontentiouslegalevents becamepublic. In 1610Henry VI
of France was murdered, and James, shaken by the news, issued a royal
proclamationrequiringall subjectsto take a new Oath of Allegiance.Parliament
objectedbecausethe oath imposedcriminalpenaltiesfor non-compliance,and was
very general.Coke then addressedthe Privy Council to arguethat the king could
not create offences by proclamation,after which the Privy Council held that
proclamationswere not part of English law."'
Therefore both important issues of state and scandalous events made the
worseningrelationsof differentcourts, particularlythose of equity and common
law, a tense and public subjectby 1608-10.

Such close considerationof the history of the conflict of jurisdictionsprovidesa

partialanswerto the famousquestion of the two differentthe texts of King Lear.
Variations on the quarto text that produced the folio version have been
allegedto be: an improvementaesthetically;1'theatricallyvaluable;"3regrettably
109 Two of the sources used in Usher, 'JamesI and Sir Edward Coke' are hearsay,being letters
reportingevents heardfrom others who were reputedto have been there. Clearlynews of the scandal
was circulating.Usher (ibid. 669) shows that John Hercy wrote, 'I [ .. ] think your Lordshipbefore
this by some other had heardthereof'.
110 Mcllwain, ThePoliticalWorksofJames I, 308-9. The king is boundtacitlyby virtueof the fact that
he is bound to protect both the laws and the people of the kingdom, and bound expressly by his
coronationoath.
111 Case of Proclamations(1611) 12 Coke Rep. 74. See Holdsworth, iv. 296-7 and v. 333.
112 W. M. T. Nowottny, 'Some Aspects of the Style of King Lear', ShakespeareSurvey, 13 (1960),
49-57; Taylor, 'Monopolies,Show Trial, Disaster, and Invasion'.
113 Taylor, 'Monopolies,Show Trial, Disaster,and Invasion';R. Warren,'The Date and Authorship
of the Folio Version', in Taylor and Warren(edd.), TheDivisionof the Kingdoms,45-57.
436 B. J. SOKOL AND MARY SOKOL

undertaken for reasons of theatrical expedience;'14 mainly apolitical in motive;115

or politically motivated by self-protective self-censorship."6
When the supporters of these mutually contending positions consider in
particular the removal of the mock-trial scene from the folio text they posit a
variety of contrary motives. Censorship is not the motive for the omission
according to Gary Taylor, who nonetheless holds that the trial scene may have
been marred aesthetically by political anxieties making it 'unfocussed emotionally
as well as politically'. Taylor judges that its loss in the folio 'does a service to ...
the play's structure'.1" Kenneth Muir, while partly agreeing with critics like
Taylor and Roger Warren that the scene is hard to stage, wholly disagrees that its
omission is an improvement."1 Annabel Patterson disagrees vigorously with
Taylor on the motive for the cutting of the mock-trial scene; while applauding
his concern with an authorial 'anticipation of censorship', she excoriates his
supposed denial that political factors actually shaped the play or its folio
1
changes.
Kenneth Muir, alone of the above, thinks the folio changes were the work of
unskilled 'vandals', and not Shakespeare. The others think that Shakespeare was
responsible for cutting the mock-trial, but do not agree why. Patterson objects that
Taylor and others deny political motives for this,12?but despite alleging extensive
political reasons for other changes to the quarto, gives no reasons for Shakespeare
to self-censor the mock-trial. Yet a simple and plausible reason for its suppression
is available.
This emerges in a consideration of the one place where English-style separate
equity and law jurisdictions are referred to in a Shakespearian play. This unique
place is in the quarto, but not in the folio, text of King Lear, at the start of the
mock-trial. The hallucinating Lear commands:

Thou robed man of justice, take thy place;

And thou, his yokefellow of equity,
Bench by his side.
(LRQ S13. 32-4)

Having convened a special mixed tribunal seating a Bedlam beggar addressed as a

'most learned justicer', a coarse servant, and the court Fool, Lear then arraigns a
rough piece of furniture, a 'join-stool', as if it were Gonoril, and an equally

114 K. Muir, Shakespeare:Contrastsand Controversies (Brighton, 1985), 51-66, concluding'vandals'

damagedthe play 'fatally'by cutting it.
115 Taylor, 'Monopolies,Show Trial, Disaster, and Invasion'.
and Interpretation,
116 Patterson,Censorship 58-73.
117 Taylor, 'Monopolies,Show Trial, Disaster, and Invasion',97.
118 Warren,'The Date and Authorshipof the Folio Version',passim;Muir, Shakespeare:Contrasts
and
57.
Controversies,
119 Patterson,Censorship
and Interpretation,
62-3.
120 Ibid.
 SHAKESPEAREAND ENGLISH EQUITY 437

imaginaryRegan. Some satiric intent is probably implicit, for other of Lear's

'mad' speeches challenge the authorityof merely worldly 'justicers'.Thus Lear
comments:'handy-dandy,which is the thief, which is the justice?Thou hast seen
a farmer's dog bark at a beggar?'(LRQ S20. 148-9, and (nearly) LRF 4. 5.
149-51).121
Even so, a mixed element of approbationof the tribunalbenched by Lear may
be implicitin the quartotext. The mock-trialscene indeed presentsa view of how
justice had, on important occasions, actually been executed. The uniquely
empowered and exceptionallyelected commission for the trial of Mary Queen
of Scots was chosen by a particularlycomplex process:'22it included Lords, the
Chancellor, the Chief Justice, and other judges. Perhaps more to the point,
becauseit was not a criminaltrial but a land law action subjectto equity, was the
case of the postnati.In 1608-9 KingJamessaw to it that the very importantissues
tested in Calvin'sCase were put to all the judges in both Chanceryand King's
Bench.123Eventually,full accessto both equitableand commonlaw remediesby a
single tribunalwas allowed by the JudicatureActs of 1873-5.
But in the 1608 quartoLear places'justice'and 'equity'side by side on a single
bench, as co-operative'yokefellows'.At the time when he wrotethat versionof the
play, between 1604 and 1606, Shakespearecould have showed them as such
without risking contention. For the expert opinion is that by late Elizabethan
times long-standing disagreementsbetween these jurisdictionswere abating.124
Yet by 1610 there was overwhelmingpublic evidence of an intensely political
struggle growing between jurisdictions, exemplified and perhaps deliberately
exaggeratedin the argumentsover law and equity between Coke and Ellesmere.
Shakespeare'swish to avoidinvolvementwith a conflictdistinctfromthe purposes
of his play plausiblyexplainsthe politic eliminationof the trialscene from the text
destined for the folio version of King Lear.
Finally it is worthconsideringjust why a portrayalof peacefuland co-operative
relationsbetween the jurisdictionsof law and equity would have seemed positive
and non-contentiousin the years preceding 1606. Aside from the astonishingly
close physicallocationsof the king'scourts in WestminsterHall and Whitehall,'25

121 On this see Merchant,'Lawyerand Actor', 121-3.

122 Bellamy, The TudorLaw of Treason, 123-4, explains that this instance presents the single case
where detailedinformationstill exists about the selection of a special commissionfor a state trial:the
Lords were grouped in such a way that a chain of selected commissionersof particularrankselected
others of lower rank.
123 See B. J. Sokol and M. Sokol, 'The Tempest and LegalJustificationof Plantationin Virginia',in
Klein and Davidhazi(edd.), ShakespeareYearbook7, 353-80.
124 This is the view set in the context of legal events of 1587 and 1591 in S. E. Thorne's prefaceto
EdwardHake, Epiekeia:A Dialogueon Equityin ThreeParts (London, 1953), pp. xi-xii. The view is
stronglyemphasizedthroughoutJones, TheElizabethanCourtof Chancery.It is furtherset in contextin
Yale, LordNottingham's'Manual',10-11, echoed in Tucker,'The Letter of the Law in TheMerchantof
Venice', and specificallydiscussed in relationto the Admiraltyjurisdictionin L. M. Hill, Benchand
Bureaucracy:ThePublicCareerof Sir Julius Caesar1580-1636 (Stanford,Calif., 1988), 40-53.
125 See E. W. Ives, 'The Law and the Lawyers',ShakespeareSurvey, 17 (1964), 73-86: 75-6; Baker,
'Law and Legal Institutions',42.
438 B. J. SOKOL AND MARY SOKOL

the leadingjudgesof the age afterall constituteda smallcommunity.126According

to D. E. C. Yale, following 'the new practice of appointing Chancellorsfrom
among lawyersratherthan clerics' the relationsof equity with the common law
were stabilized or soothed in the late Elizabethanyears, but a long-standing
'inflammationwas not cured and from time to time found expressionin bickering
and conflict'.127However, if we look to contemporarydiscussionsas opposed to
practice,we find that more than a mere truce between equity and law was in the
minds of a numberof late Elizabethanwriters.'28In the 1590sWilliamLambarde
wrote in Archeion:
even as two Herbes being in extremitie of heate, or cold, bee by themselves so many poysons,
and if they bee skilfully contempred, will make a wholesome Medicine: So also would it
come to passe, if either this Aritmeticall Governement(as they call it) by rigour of Law onely,
or this GeometricallJudgement at the pleasure of the Chancellouror Praetor onely should bee
admitted; and yet if they bee well compounded together, a most sweete and harmonicall
Justice will follow of them.129

Here both musical'30 and medicinal analogies laud a congenial partnership

between law and equity that not only moderates but transcends the deficiencies
of both.
Correspondingly, William West wrote in 1601 that 'the common people terme
the Chauncery the Court of Conscience: Yet herein conscience is so regarded, that
Lawes be not neglected, for they must joine hands in the moderation of
extremitie'.'31 A joining of hands signified, for the period, a powerful linking of
persons and their interests, similar or identical to handfasting in promise of
marriage.132
Such imagery, like Shakespeare's image of 'yokefellows','33 corresponds with a

126 Baker,'Law and Legal Institutions',47-8.

127 Yale, LordNottingham's'Manual',11.
128 Minimizingthe disparitybetweenlaw and equity is the main thrustof all three dialoguesof Hake,
Epiekeia,an edition of BM Add. MS 35326. This manuscriptwas completedby 1603, probablymainly
written somewhatearlier,and never published. In the preface to this edition (p. xii) D. E. C. Yale
supposes that Hake 'perhapshoped to minimize the differencesbetween the two kinds of justiceand
bring about the kind of reconciliationSir Thomas More had urged'.
129 Lambard,Archeion,71-2, this sectionprobablywrittenby 1591. The 'H' MS, which, accordingto
McIlwainand Ward,Lambarde's Archeion,170, was revisedbetween 1596and 1598,containsa striking
unpublishedaddition,which they print (p. 159). It suggests that, if the Chancellorfailed to keep his
jurisdictionwithin bounds, it might be 'more sufferableand Convenientto have noe Court of Equitie
att all'.
130 Lambardesimilarlyused musicalharmonyto imagethe good applicationof law on 20 Apr. 1596:
see Read, WilliamLambardeand Local Government,124-5.
131 West, TheSecondPart of Symboleography,
176.
132 See A. P. Slater, Shakespearethe Director(Brighton, 1982), 49-62; M. Leslie, 'The Dialogue
between Bodies and Souls: Picturesand Poesy in the English Renaissance',WordandImage, 1 (1985),
17-30: 177-9.
133 'Yoke-fellow'denoted partnerin a task (OED 1) or specificallymarriagepartner(OED 2), while
'yoke[d]'indicatesclose alliancein more than a dozen Shakespeariancontexts (in TNK, TGV, ADO,
RDY, JC, MND, MV, OTH, WT, and in three places in H5, at 2. 2. 103, 2. 3. 50, and 4. 6. 9).
 SHAKESPEAREAND ENGLISH EQUITY 439

view of equity and law operatingin close harmonyor fellowship,Jones's'cohesion

in judicature'.Ratherthan wishing to point up a breakdownor contrastbetween
these jurisdictions,as often alleged, Shakespeareon the contraryavoidedmaking
any referenceto them at all when their difficultieshad become a matterof public
note and scandal.