No open-access location is known for this record yet.
No open-access location is known for this record yet.
Equity and Mercy in English Law and Drama (1405-1641) W. Nicholas Knight Shakespeare read a number of treatises on equity such as those by Plowden, William Lambarde, possibly Bacon, and Symboleographia by William West of the Inner Temple, as we know him from a line in Love’s Labor’s Lost. John Marston of Middle Temple and Ben Jonson picked up the word syndereisis as misspelled in Christopher St. Germain’s Doctor and Student, a treatise on equity thought to have influenced Merchant of Venice and Measure for Measure. All three dramatists probably encountered Epieikeia (1609) by Thomas Ashe of Gray’s Inn and, in manuscript, works of the same title by Edward Hake and William Perkins. Of course “equity” would be familiar to the dramatists from the Geneva Bible which used it more than later translations. There was a flurry of literary and legal interest in equity during Shakespeare’s time but the connection between equity and drama had been present in England, as well as Greece (in Hecuba, Antigone, the Oresteia, and the Odyssey), from the beginning. Subsequent to Magna Carta the avenue for common law tended to solidify by means of written law (lex scripta) through the Court of Common Pleas; while the Court of King’s Bench exercised the King’s prerogative and was not strictly bound by precedent or form.l King’s Bench was regarded as a higher court in which the errors of Common Pleas were corrected, prior to the early fourteenth century. By the mid fourteenth century both courts, through their similar functions, hardened into a structure of common law courts.2 Equity is that which legally recognizes the exception to the law in the name of higher or natural justice. Since equity oper51 52 Comparative Drama ates outside the written law to amend it, equity must maintain its prerogative jurisdiction to remain operative, as its own rul ings tend to become self-constrictive because they become in corporated into common law. Thus we find that in the early part of the fourteenth century, King’s Bench, as it tended to follow Common Pleas, was superseded by Court of Exchequer. This court’s connection with King’s Council was intimate and “. . . cases which demanded the application of equitable principles frequently came before it.”3 Finally in the reign of Edward II (1284-1327), the Chancel lor superseded the treasurer and thus King’s Council and Chancery took the jurisdiction from the Exchequer which, as we have noted, the Exchequer had taken from King’s Bench. The point to be made is that equity maintained its autonomy from common law and remained closely associated with the King from the time the power was given to the Court of King’s Bench in the thirteenth century by Magna Carta until the abolition of the Court of Star Chamber by the Long Parlia ment in the seventeenth century. Under Edward II litigants who were denied . . . redress in the ordinary courts . . . appealed to the King in Council to satisfy their claims. For a time, it would seem that the Council itself considered such petitions and where a petition was addressed to the King alone, he referred it to the Council for trial. Eventually the Council delegated this function to the Chancel lor, and ultimately petitions were addressed to the Chancellor alone.4 The custom of referring to the Chancellor the cases requiring equity from the King was confirmed by an order of Edward III in 1349.5 At this time Edward referred all such matters as were “of grace,” to the Chancellor, or “keeper of his conscience,” who acted in the King’s name. As a familiar illustration one remembers with amusement that Shakespeare has the Lord Chief Justice in Henry IV (Part 11)6 speak to Prince Hal of this kind of a relationship between the King and his judicial administrator. I then did use the person of your father; The image of his power lay then in me; And in th’ administration of his law, Whiles I was busy for the commonwealth, Your Highness pleased to forget my place, The majesty and power of law and justice, W. Nicholas Knight 53 The image...
Loading…
Stored only when both papers are in the corpus — 2 citations exist upstream.
Papers that cite the same references — the relational fallback while embeddings are still backfilling.
Imported from OpenAlex (CC0) — nothing here is generated.