Quote:

Your case seems strong. Still, even if suits for debt didn't need a venue to be mentioned, would that mean they would not be mentioned. Seems to me that you'd need a list of cases recorded as being tried in this St. Mary's parish to decide the question.

--Bob



It has sometimes been said that orthodox scholars were reluctant to consider the possibility of the William Shackspere of the Clayton suit being identical with William Shakespeare of Stratford because it would show him in a very unfavorable light, a pitiless usurer relentlessly pursuing a debtor and bringing him into prison (Marshalsea). As a PS to this posting I add a passage from W.S. Holdsworth, some comments of mine, and the translation of the Clayton suit as it was posted two years ago by John Rollett on the Elizaforum. It is ungainly reading but even a glance at it will convince you that nothing in the suit warrants such an interpretation. You will readily see that the passage from Holdsworth fits the Clayton suit and that we should understand the latter as an application of the writ of * Latitat * of the King’s (Queen’s )Bench, a legal fiction invented by that court to gain jurisdiction over actions of debt which otherwise were the proper domain of the Common Pleas, except for cases of debt both contracted and to be performed outside England. John Clayton was not really a prisoner released on bail. These were legal fictions to which the defendant himself must have assented (cheaper and speedier proceedings).

Here I start my argumentation. The King’s Bench had Clayton “in prison” and could judge him for debt, regardless of whereever in England the debt had been incurred. Why then this localisation “in the parish of St Mary le Bow in the ward of Cheap”? The King’s Bench had general jurisdiction (including for debts) only in the county of Middlesex, then not part of the City of London. Moreover, the locality was not essential to a debt (See Blackstone, Commentaries, III. 107: “But our lawyers justify this fiction, by alleging as before, that the locality of such contracts is not at all essential to the merits of them: and that learned civilian himself seems to have forgotten how much fictions are adopted and encouraged in the Roman law...”).

As dealt with by Holdsworth and Plucknett it clearly looks like a standardized phrase. Over a year ago I myself noted a case from Elizabeth’s reign in James Dyer’s reports (Vol. III). I vaguely remember that it was a suit about the administration of a will. A man had died intestate in Ireland; the administration of his goods in Ireland went to his son, of those in London to his widow who was living there. As administrator of the estate the widow sued for a debt. If my recollection is right the defendant demurred on the ground of improper venue. But the complaint stated that the man had died “in the parish of St Mary le Bow in the Ward of cheap”. The demurrer was not accepted. Again, the locality was not seen as essential to the case in question (“transitory”).

However, even if Clayton was “a prisoner in the Marshalsea”, the Queen’s Bench could not capture the litigation if the debt was incurred and had to be performed in a foreign country. Then it was within the jurisdiction of the Court of Admiralty. To prevent this court from seizing cognizance of the case it was necessary to allege a place within England and in the last quarter of the 16th century (and probably beyond) this place was usually said to be “in the parish of St Mary, etc.”.

I add an additional passage from Holdsworth on Court of Admiralty in * A History of English Law *, Vol. I. (p. 322-3):
"Such jurisdiction was now coveted. By supposing these contracts or offences to have been made or committed in England the Common Law Courts assumed jurisdiction and thus by a 'new strange poetical fiction,' and by the help of 'imaginary sign-posts in Cheapside'", they endeavoured to capture jurisdiction ove the growing commercial business of the country. [Holdsworth's quotes are from Prynne, Animadversions, 95, 97]

It seems safe to me to conclude that in 1592 William Shackspere was residing abroad, and still or again so in 1600. It seems not likely he was the William Shakespeare discovered by Leslie Hotson and who was probably born in Bedfordshire in the 1540s and in the late 1560s married Helen Aske in Campton, Bedfordshire. Thus far the most likely candidate seems to be the merchant adventurer living in Antwerp.

Robert

PS

A. THE QUOTE FROM HOLDSWORTH (Vol. I., p. 218-220)

“We have seen that original jurisdiction over civil actions belonged properly to the the court of Common Pleas. It alone had original jurisdiction over most of the real actions and over the older forms of personal action. But the King's Bench had always exercised jurisdiction in cases where a personal wrong or force was alleged. This gave it a jurisdiction over trespass [my remark: as opposed to covenant] and its off-shoots, which it exercised concurrently with the court of Common Pleas; and, as in the sixteenth century one or other of the actions of trespass on the case [my remark: that is, not by some formal writ by which the case had to be brought to court, but on the individual case] were more than covering the ground occupied by the older real and personal actions, the monopoly of the court of Common Pleas was becoming a thing of the past. But, before this time, the court of the King's Bench had invented a process which gave it concurrent jurisdiction with that exercised by the court of Common Pleas over all personal and mixed actions; and this process was so much more effective, and so much cheaper than the process of the court of Common Pleas, that, by the beginning of the seventeenth century, it was attracting to itself the greater part of this litigation.
This process was based on the fact or the fiction that the defendant was in the custody of the Marshal of the Marshalsea of the king – the functionary who kept the prison of the court. If a person was in the custody of the Marshal the court had general jurisdiction over him. It was therefore possible to bring any sort of action against him, except real actions [my remark: on landed property and by writ]. It is possible that this device was borrowed by the court of the King's Bench from an analogous device used by the Steward and Marshal's court in Edward I.'s reign [my remark: I have met such a case still in 1406 in Henry IV's reign]. However that may be, it was applied by the court of the King's Bench on a far wider scale than was possible in the case of a court with a jurisdiction so limited as that of the Steward and the Marshal.
The first step in this process was to get the defendant either actually or constructively [my emphases – his presence there might have been fictitious] 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. To get this evidence on record what was called a bill of Middlesex [my remark: because the King's (Queen's) Bench did have general jurisdiction for 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 [my remark: offence against the King's peace]. The plaintiff gave pledges for the prosecution, which pledges, even in Coke's day, were the fictitious John Doe and Richard Roe. 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," 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. Thus when the defendant did not live in Middlesex it was clearly a waste of time to start with a real bill of Middlesex. Such a bill was supposed and the issue of latitat was the first step taken in the action. But the bill actual or supposed was the foundation of the subsequent proceedings against the defendant.
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 John 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. In 1661...”

B. MY REMARKS

In the Clayton suit document it is stated that John Clayton of Wellington in the County of Bedford, yeoman, is in the custody of the Marshal &tc. concerning a plea of debt. The pledges for the prosecution were John Doe and Richard Roe, mereley fictitious persons, "common bail." No special bail was necessary, the debt being only £7, less than £10. The imprisonment of Clayton in the Marshalsea was entirely fictitious, a mere device for the King’s Bench to take jurisdiction on debts. Both parties had given their agreement, the procedure of this court being speedier, less costly and in English instead of law French as in the Common Pleas. But all the facts about imprisonment, the pledges or "common bail" were entirely fictitious. Though fictions, they were untraversable because an action on debt was considered “transitory” (in cases such as debt where the locality had no impact on the substance) as opposed to “local”

C. CLAYTON SUIT

Shackspere v. Clayton Copyright © J. M. Rollett, 2002

KB27/1361/1 rot.293 (Coram Rege roll, Easter 42 Eliz. (1600)

Easter Term Continuation Popham [Chief Justice]

London. Be it remembered that at another time, namely in Hilary Term last past before the Lady Queen at Westminster came William Shackspere by his attorney Thomas Awdley. And he produced here in Court then and there a certain bill of his against John Clayton of Wellington in the County of Bedford yeoman in the custody of the Marshal &tc. concerning a plea of debt. And the pledges to prosecute are John Doe and Richard Roe. Which bill follows in these words.// London - William Shackspere complains against John Clayton of Willyngton in the County of Bedford yeoman in the custody of the Marshal of the marshalcy of the Lady Queen being before the Lady Queen herself. And with a plea that he pay him Seven pounds of lawful money of England which he owes and unjustly witholds because, that is to say, 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, namely in the parish of St. Mary Arches in the Ward of Cheap, London, by a certain bond in writing . . . and being shown now here to the Court of Lady Queen dated the same day and year, acknowl-edging himself to be bound to the aforesaid William to pay him the aforesaid seven pounds when asked for them. However, the aforesaid John was often asked to do so by the aforesaid William, the aforesaid seven pounds were never paid. But up to the present he has entirely refused to pay them, and up to the present he continues to refuse and unjustly witholds them, to the damage of him, William, to the extent of ten pounds. And wherefore he brings this action &c.

And now at this day, namely Wednesday next after the eighteenth day of Easter in this same term, until which day the aforesaid John Clayton had leave to imparl on the bill aforesaid, and then to answer. To the Court of the Lady Queen at Westminster comes the aforesaid William Shackspere by his attorney aforesaid. And the aforesaid John Clayton is allowed until the second day, but having been solemnly called, does not say anything in bar or prevention of the suit of the aforesaid William, hence the same William remains against the aforesaid John Clayton who is without defence. *Therefore it is considered that the aforesaid William Shackspere shall recover against the afore-said John Clayton his debt and also twenty shillings for the damage which he sustained and for his expenses and costs in bringing this suit before the Court of the Lady Queen here, and his lordship with the assent of others will give judgement. And the aforesaid John Clayton is in mercy &c.

[Transcription and translation by Tina Hampson; copyright © J. M. Rollett, 2002]