How The Trial Could (Almost) Have Happened

Despite the insuperable obstacles that Shakespeare placed in his path, Shylock still managed to get his case into court. But into which court? and how?

A Short Excursion into English Legal History After William the Conqueror

Most disputes between citizens were handled on the local level. Some issues, however, were of such a nature that the King, as the ultimate authority, had to make the decision. The King appointed several of his Councillors—which were then called the Curia Regis or King’s Court—to make such decisions. The King’s Court was not a court of law, and was later divided into Parliament and the Privy Council.

However, citizens had difficulty in obtaining access to the King’s Court. The King often travelled around the country, together with his Councillors and other important officials. Citizens who needed a ruling on an important matter did not know just where the King and his Councillors would be at any particular time.

Henry II (1133 – 1189) worked to regularize the administration of justice, and established a central royal court—called The Bench—which sat regularly at Westminster Hall. The judges became professionals, and spent their time on the administration of the beginning of what was to become the common law.

In 1215, Henry’s son, John, signed
Magna Carta. Paragraph 17 insured that litigation in respect of common pleas—those not involving the King—was conducted in courts that did not follow the King to uncertain places. (Baker, Fourth Edition)

As a consequence, two major Courts existed: (1) The Bench—known as The Common Bench—had exclusive jurisdiction over all civil suits that did not involve the King; and (2) The King’s Bench, which followed the King on his progresses.

The Common Bench—later the Court of Common Pleas—had jurisdiction over all civil lawsuits between citizens, became
the great court of England, and shaped the development of the common law.

King’s Bench had jurisdiction over non-revenue actions involving the Crown; over all criminal matters; and over actions of trespass, which were viewed as breaches of the King’s Peace. After Henry IV, King’s Bench also settled down in Westminster Hall—located in Middlesex County—for good, and its criminal jurisdiction was limited to crimes committed in Middlesex County. King’s Bench was still prohibited by Magna Carta from hearing suits between citizens. Another court, the Court of the Exchequer, also sat in Westminster Hall, and handled all of the revenue actions involving the Crown.

The Chancellor played a dual role in the administration of justice.

As the Keeper of the Great Seal, the Chancellor was authorized to issue writs in the King’s name. Any citizen who wished to file a lawsuit against another citizen had to apply to the Chancellor’s Office for a
writ. The Chancellor’s Office would examine the complaint, and, if it met the technical pleading requirements—that is, was couched in the appropriate form of action for the nature of the complaint—the Clerk would issue the writ upon payment of the appropriate fee. This writ commanded the Sheriff to summon the Defendant to appear and answer the Plaintiff’s complaint in the specified court on a specified day.

Sometimes the nature of the Plaintiff’s complaint could not be made to comply with the appropriate form of action. This circumstance invoked the Chancellor’s other—and more powerful—function. A Plaintiff could file such a complaint in the Court in Chancery, over which the Chancellor presided. The Court in Chancery did not consider itself necessarily bound by judicial precedent, and would decide cases based on equitable principles of justice and fairness.

However, Shylock could not have filed his suit against Antonio in the Court in Chancery for at least two reasons: first, his bond involved the commission of an illegal act; and second, the Chancellor had ruled in the fifteenth century that even the usual kinds of forfeitures (twice the principal, for example) were unconscionable, and the Court in Chancery would not enforce them.


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In the drawing above, the Court of King’s Bench sat in the south-east corner of the Hall (top left); the Court of Chancery sat in the south-west corner (top right); and the Court of Common Pleas sat on the other side of the wall on the right. Booksellers and drapers had stalls around the walls.

The Tudor Period and the Bill of Middlesex

By the mid-sixteenth century, the volume of litigation between citizens greatly increased. The common lawyers and their clients wanted another option, preferably one with greater flexibility, less cost, and less delay. The judges on King’s Bench took note of the fees that would accrue to the Court of Common Pleas from the handling of lawsuits between citizens, and decided that they might share some of the burden of this upswell in litigation, as well as some of those fees. The Court of Common Pleas originally had no objection because they had more legal business than they could handle.

The judges of King’s Bench created a more simplified and inexpensive mechanism for initiating a lawsuit: a
bill instead of a writ. The Plaintiff did not have to pay the substantial fee that the Clerk’s Office charged for issuing a writ. In addition, King’s Bench devised a legal fiction whereby they could obtain jurisdiction of complaints between private citizens. This subterfuge was called the Bill of Middlesex, and was based on the notion of trespass, which, being a breach of the King’s peace, fell within the jurisdiction of King’s Bench.

A Plaintiff would file an unsworn complaint (a bill) in King’s Bench, alleging that the Defendant had committed a trespass against the Plaintiff in the county of Middlesex, and therefore within the criminal jurisdiction of King’s Bench. Because the complaint was unsworn, the Plaintiff did not risk a charge of perjury for this lie. Upon payment of a more reasonable fee, King’s Bench would issue a warrant for the arrest of the Defendant, who would then be booked into Marshalsea Prison. The Marshal of this prison was the official jailer of the Court; because
he attended the Court, his prisoners were deemed to be always before the monarch, and therefore within the jurisdiction of King’s Bench for all purposes.

When the Defendant was in custody or out on bail, King’s Bench could then entertain any other complaint the Plaintiff may allege, such as an action for Debt. The Plaintiff would drop the trespass charge, continue only with the action for Debt, and the court would refuse to hear any complaint that the Defendant had been thrown in jail on a charge that everyone knew to be a sham.

Shylock could have filed a complaint of trespass against Antonio in King’s Bench without mentioning the illegal bond, and could have had Antonio arrested, just as Shakespeare has portrayed. However, push would have come to shove when Shylock dropped the trespass charge and continued with the action for Debt. A real court would have refused to proceed with such an action for the two reasons stated above: the complaint involved the commission of an illegal act; and it failed to comply with the applicable form of action.

The trial scene contains several legal examples of the lesson of the Casket Plot:
So may the outward shows be least themselves. The legal fiction of the Bill of Middlesex is one such: King’s Bench employed the false outward show of a trespass in order to obtain jurisdiction over cases between private citizens.

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