Equity, poetry, and the case of the needy thief

BL Add MS 35326

I’m currently writing about a work called Epieikeia: A Dialogue on Equity in Three Parts, which was composed by Edward Hake in the late sixteenth century. Hake was a Puritan, a poet, and a local government official, who hoped that his treatise would bring him to the King’s attention and secure his advancement. If I’m honest, I first became interested in this work because it’s more than a little bizarre.

For a start, it’s written in dialogue form—as an imaginary conversation between Hake and two friends, Lovelace and Eliott. The conceit is that the three men have gathered before dinner when Eliott starts pressing Hake to explain to them the nature of equity (as you do). Hake is initially reluctant, but is soon convinced to spend three afternoons (or 140 pages) expounding his ideas.

The literary dialogue was popular in Renaissance Europe, and many writers used it to draw out a range of views and ambiguities around their topic. Hake… did not. Lovelace and Eliott are really only there to repeat his conclusions and tell him how clever he is. (Sample contribution from Eliott: ‘I acknowledge to have received both pleasure and profitt [from Hake’s discussion], pleasure in the variety of the matter, and profitt in the good end and purpose that hath byn of it. And this I must confesse, that had it not byn for this and your former speache, I sholde have remained in error…’) It’s a shame that this mode of writing has fallen out of fashion—it must be good for the self-esteem and a helpful cure for writer’s block.

Hake’s topic is equity, or, more specifically, epieikeia. In using the Greek word, Hake was referencing a passage in Aristotle about the limits of laws. A law, observed Aristotle, has to be framed in general terms (for example, ‘nobody may climb the city walls’). But a general law can’t possibly give the right answer in every single situation (what if someone climbs the walls to defend the city from attack?) Aristotle concluded that the general words of the law have to be corrected by epieikeia to give the just answer in a particular case (so the defender of the city shouldn’t be punished).

Equity and epieikeia were hot topics in early modern Europe—Mark Fortier describes equity as ‘on the loose’ in legal, political, religious, philosophical and poetic literature, drawing in concepts from ancient Greece and Rome as well as the Christian tradition. Hake’s Dialogue is a good example of this ferment of ideas. He begins by discussing concepts of equity in general, before explaining how equity was used in England by both the common law courts and the Chancery—something that was increasingly politically controversial.

One of the oddest episodes in the book comes when Hake starts to declaim poetry to his (no doubt startled) listeners. Equity is very ‘wearisom’, he announces, but he has just the solution: a poem he has recently written. And what a coincidence—‘by good happe it is heare abowt mee’! The poem is about two kinds of thief: ‘him that steales throughe Neede, and him that steales throughe Covetousnes’.

The first thief only steals because of his ‘distressed state’—his ‘body pynes and entrayles gnawe’ with hunger—and he has lost his ‘dreede / Of lawe’ as a result. The second thief, in contrast, is a ‘greedy wretche’ who steals ‘to fill / His hungry, thirsting hart, and hoordeth it’. Now, Hake notes, ‘the punishment of thefte by lawe is death’, but ‘Justice wold’ that these two thieves ‘be deemed asunder’. His argument isn’t, he emphasises, that ‘that the lawes intent shold make it free / To steale through want’. Indeed, it would be ‘very daungerous and absurd’ not to punish the needy thief at all. However, the ‘foresighte’ of judges is needed to make sure that each thief gets what he ‘deserveth most in righte’.

Lovelace and Eliott are predictably delighted by the poem, but Hake modestly brushes off their praise: ‘yow may thincke withal that there is small taking of fees where such toyes are stirring’. And, ‘leaste this meeter sholde seeme to carry me from my matter’, he’s quickly back to business.

Frankly, when I first read this poem, I thought that Hake was just showing off, or perhaps trying rather desperately to fill an empty page (we’ve all been there). But now I suspect there’s more to it than meets the eye. The case of the needy thief was a standard example used by sixteenth-century writers to illustrate the workings of epieikeia. In fact, it was popular in the works of Protestant theologians, some of whom Hake had certainly been reading.

The German Lutheran Philip Melanchthon, for example, gave the example of a young thief who steals out of hunger. In this case, he argued, equity ought to relieve the rigour of the law, which was primarily designed for cases of theft motivated by malice. William Perkins, an English Puritan, made a similar point in his lectures on epieikeia. The purpose of the death penalty was to repress sin and punish incorrigible criminals, but a young boy, who had stolen only from hunger, could perhaps be reformed by a more appropriate punishment. The poem is Hake’s spin on this example in unusually poetic form.

Even Hake’s more peculiar literary flourishes, then, deserve careful reading. His work is also evidence of the cross-fertilisation of ideas about equity that Mark Fortier describes. Hake, a Puritan, poet, and legal writer, draws together philosophical, religious and legal ideas in his poem, embedded in a work that he hoped would bring him political favour. My next order of business is to search for other links between Hake and the theological writers of his day—and of course, to begin my campaign for the return of poetry and dialogues to academic writing.

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