The Fool and the Law in Early Modern England

Readers of early modern literature are well acquainted with the fool type, a stock character that is frequently to be found in the drama of the period and is generally renowned for his merrymaking and, in some cases, wise witticism. And yet, because he was a ‘fool’ there must have been some points of contact between the character, whether on stage or on the page, and the individuals whom the early modern society viewed as intellectually disabled from birth, whether according to legal, social or medical criteria. Alice Equestri is a current Marie Sklodowska Curie Fellow here at Sussex, and her project aims to recover narratives of disability that all too often have been neglected in favour of readings of folly as privileged wisdom or merry comedy alone. In this post, Alice explores how the English law viewed people born with intellectual disabilities.
court of wards


Court of Wards and Liveries (from Horizon Book of the Elizabethan World by Lacey Baldwin Smith, New York: American Heritage Publishing, 1967)

The only discipline which in the early modern period had been able to come to a univocal definition of what we could understand nowadays as anything similar to intellectual disability was the law. Not medicine or psychology, as we would expect.[1] Because medieval and early modern society placed a great importance on the preservation of wealth, property and land, the law was concerned with protecting those things from the carelessness of people who were supposedly unable to manage them with consideration. ‘Fools’ were indeed among those people. The law was concerned in particular with ‘natural fools’, a synonym of what it termed more specifically ‘idiots’. The 13th-century statute named Prerogativa Regis (King’s Prerogative) was the first document to start a legal conversation on issues of intellectual disability. A particular section of the Prerogative defined the provisions regarding ‘the Custody of Lands of Idiots’. It deemed that the king should acquire the possessions of the person with intellectual disability, and was entitled to any profit from their lands and property. He also formally became the official ward of the ‘idiot’, though he would often entrust his day-to-day care to a guardian. After the ‘idiot’’s death, the king would give back all of his possessions to the rightful heirs.[2] These provisions were still valid in the fifteenth and sixteenth century, when a number of lawyers commented on and reiterated the contents of the Prerogativa in matter of intellectual disability. Early modern law tracts, dictionaries and handbooks are particularly useful because they seem to spell out a clearer definition of how an ‘idiot’ could be recognised and what criteria the law regarded as exemplary of intellectual non-normativity. So for example Sir Anthony Fitzherbert reported in his legal tract New Natura Brevium (1534) that:

he who shall be said to be a sot and idiot from his birth, is such a person, who cannot accompt or number twenty pence, nor can tell who was his father, or mother, nor how old he is, etc., so as it may appear, that he hath no understanding of reason what shall be for his profit, or what for his losse: but if he have such understanding, that he know and understand his letters, and to read by teaching or information of another man, then it seemeth he is not a sot, nor a naturall idiot.[3]

Though Fitzherbert’s tract was published in the first half of the sixteenth century, his definition of the natural fool was repeated again and again in legal handbooks until well beyond 1640 (even into the nineteenth century). This signalled a substantial consistence in the criteria against which ‘fools’ were tested by lawyers throughout the two centuries. Reflecting the practical ways in which the Court of Chancery (until 1540) and the Court of Wards and Liveries (from 1540 to 1640) conducted their examinations of potentially disabled individuals, such criteria assessed skills such as numeracy, literacy, knowledge of basic information, and everyday autonomy. All of these capabilities were tested through a series of questions or tasks to be answered or carried out in front of a commission. It seems that counting and recognising the value of coins were were held as the most important abilities to determine an individual’s mental capacity:[4] this is because they would virtually function as a rule of thumb for examiners to judge the person’s ability to manage his wealth and property well and without wastes.



King Henry VIII and Will Sommer (from the Psalter of Henry VIII The Psalter of Henry VIII, London?, England, 1530-1547. Psalm 53 (52), BL Royal MS 2 A XVI, f. 63v)

Foolishness in the early modern period was therefore defined mainly in economical terms rather than physiological: first, because the ‘idiot’ demonstrated his inability to belong to a society that placed more and more importance on a market economy and commercial activities.[5] And second, because at the exact moment he was declared an ‘idiot’, he lost forever any claim to his property, virtually becoming destitute. My research so far has made me realise the extent to which literary writers and playwrights of the period were acquainted with such a reality. Indeed, in many cases, literary fools portray, mock or question the financial destiny of natural fools in early modern England: we might even note how fools of all types (whether professional jesters, simple fools or even clowns as merry rustics) are generally described as penniless. We frequently see them complain that their master does not pay them, or they even wander around in search for tips, as for instance in the case of Feste in Shakespeare’s Twelfth Night. In Thomas Nashe’s Summer’s Last Will and Testament (1600) Will Summers, the legendary fool of Henry VIII, enters the stage undressed and contemplating on his own lack of possessions. He is ‘without money, without garters, without girdle, without a hatband, without points to my hose, without a knife to my dinner, and make so much use of this word without in everything’ (B1r). Or in Shakespeare’s Cymbeline foolish prince Cloten is remembered after his death as ‘a fool, an empty purse / there was no money in it’ (4.2.114-115),[6] which jests on his inclination to squander his money at dice and therefore at his poor money management skills. Some plays seem to interrogate even more precisely the exact dynamics according to which examinations at the Court of Wards and Liveries took place. One such play is Middleton’s The Changeling, where Antonio disguises himself as a natural fool and, on his entrance to the madhouse, undergoes a formal inquisition on the part of the keeper Lollio, who asks him to make simple mathematical calculations (‘how many is five times six?’ 3.3.162-163),[7] as well as to tell his name and to recognise whether or not Isabella is a member of his family. Antonio’s ability to simulate well a fool’s limited reasoning skills allows him to be accepted into the madhouse and carry on his farce in order to secretly woo Isabella.

To sum up, the legal connections between fools and money (or lack thereof) seem too pervasive and too precise among early modern literary texts to be taken as a mere coincidence. The legal provisions regarding natural fools at the time were probably well known by intellectuals, audiences and readers, who might have learnt about them not only through informed conversations with lawyers or similar professionals, but also perhaps through direct experience. This would have called for a tendency on the part of authors to achieve something of a legal realism on stage and on the page.

[1] See Buhrer, Eliza Marie, ‘Inventing Idiocy: Law, Land and the Construction of Intellectual Disability in Late Medieval England’. DPhil. Diss. (Cornell, 2013).

[2] Neugebauer, Richard, ‘Mental Handicap in Medieval and Early Modern England: Criteria, Measurement and Care’, in From Idiocy to Mental Deficiency: Historical Perspectives on People with Learning Disabilities, ed. by Anne Digby and David Wright (London: Routledge, 1997), pp. 22–43.

[3] Fitzherbert, Anthony, The New Natura Brevium, of the Most Reverend Judge Mr. Anthony Fitz-Herbert, trans. by W. Hughes (London, 1652), 583-584.

[4] On commissions asking people to count, Neugebauer, p. 29.

[5] Buhrer, pp. 164-166.

[6] Shakespeare, William. William Shakespeare: The Complete Works. Edited by Stanley Wells and Gary Taylor, Oxford University Press, 2005.

[7] Middleton, Thomas, and William Rowley. The Changeling. Edited by Patricia Thomson, Norton, 1985.


2 thoughts on “The Fool and the Law in Early Modern England

  1. Pingback: The fool and the law in Early Modern England @ Sussex CEMMS – Alice Equestri

  2. Pingback: The fool and the law in Early Modern England @ Sussex CEMMS – Alice Equestri

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