The first theatre site was the Red Lion, set up early in the period in 1567 by John Brayne and the same James Burbage who opened the Theatre nine years later. But it was this Shoreditch playhouse from Burbage (still in some sort of partnership with Brayne) that quickly became the key building for London performances, a venue that staged the first plays of Shakespeare, including his Romeo and Juliet in the early 1590s.
The importance of this building cannot be overestimated: it influenced an entire industry to the extent that it is thought likely that there were about fifty million visits to the various playhouses up to 1642 and the closures. The name ‘Theatre’ was clearly chosen by Burbage to evoke the Roman past and the preacher John Stockwood even referred to ‘the Romanish Theatre’ in a contemporary sermon. Located just off Curtain Road, Shoreditch and built by Burbage for the sole purpose of putting on plays, he had learnt many lessons from the Red Lion as his new Theatre went on to enjoy tremendous success. As well as the plays of the young Shakespeare, Burbage’s Theatre must have staged the works of the influential Marlowe a few years before the arrival of Shakespeare in London from Stratford. In fact, it has recently been located and excavated by an archeological team from the Museum of London. In Elizabethan times, using the name ‘Theatre’ indicates that Burbage was making sure that the Roman precedence was foregrounded, and this meant that the playhouses might help London to be seen as a new Rome or Troy, as neoclassical elements fused together with the Tudor architecture of the playhouses.
The cost of building The Theatre was originally estimated at about £200, but this turned out to be rather unrealistic for the first 'virtually circular' theatre in London (as Gabriel Egan has pointed out). James Burbage signed the lease on 13 April 1576 (though it was an active lease from 25th March 1576). We know that Burbage had to pay about £14 a year for the site, and that he was required to spend £200 repairing other buildings on the area. Likewise, we know for sure that playing was taking place here by 1 August 1577.
Unfortunately, up to 1594, we cannot be at all certain about the players, playing companies, dramatists, or plays that used The Theatre, though the works of Marlowe and Kyd's The Spanish Tragedy seem highly likely as potential plays. Similarly, it is thought probable that The Theatre had a tiled roof, though this is also uncertain, particularly because of a lack of visual evidence from the period.
In terms of occupation, things change in 1594 when the so-called duopoly arrangement meant that the Chamberlain's Men (including the Burbages and Shakespeare) were to perform only at The Theatre, whilst the Henslowe-Alleyn Admiral's Men were to be the only other legally-sanctioned playing company at the Rose. It is because of this fact that we can be sure that The Theatre staged many or even all of the early Shakespeare plays.
From the wealth of legal and cultural documents that survive for The Theatre (see below) we know that an early, non-Shakespearean Hamlet was staged here. Furthermore, we know that playing finished here by 1598 and that parts of the playhouse were physically removed and used to build the first Globe across the river, also in 1598.
Documents Associated with The Theatre
A document dated 13 April 1576 has survived in terms of James Burbage leasing property (where the Theatre was to be built):
‘He, the said defendant, together with Sarah, his wife, did by their indenture of lease bearing date . . .  April  for and in consideration of the sum of £20 of lawful money of England ... in hand at the ensealing thereof by the said James Burbage ... truly paid,… amongst other things did demise unto the said James Burbage: all those two houses or tenements with the appurtenances then being in the several tenures or occupations of Joan Harrison, widow, and John Dragon; and also all that house or tenement with the appurtenances, together with the garden ground lying behind part of the same, then being in the occupation of William Garnett, gardener; and also all that house or tenement with the appurtenances called ... the mill house, together with the garden ground lying behind part of the same, then being in the tenure or occupation of Ewan Colfoxe, weaver, or of his assigns; and also all those three upper rooms with the appurtenances next adjoining to the foresaid mill house, then being in the occupation of Thomas Dancaster, shoemaker, or of his assigns; and also all the nether rooms with their appurtenances lying under the same three upper rooms and next adjoining also to the foresaid ... mill house, then being in the several tenures or occupations of Alice Dotridge, widow, and Richard Brackenburye, or of their assigns, together also with the garden ground lying behind the same: and also one great barn with the appurtenances, then being in the occupations of Hugh Richardes, inn-holder, and Robert Stoughton, butcher. Except and reserved to the said defendant and Sarah, his wife, and to their heirs and assigns, and to such other person or persons as then did or should inhabit or make abode in the capital messuage or tenement there, or any part thereof, then or late in the occupation of the said defendant, and to and for the said defendant which did and should dwell in Hollywell aforesaid, free liberty to fetch and draw water at the well there from time to time during the said term.
To have and to hold all the said houses or tenements, barn, gardens, grounds and all other things by the said indentures demised (except before excepted) unto the said James Burbage, his executors, and assigns from the feast of the annunciation of our Lady [25 March 1576]… unto the full end and term of twenty and one years from thence next immediately following and fully to be complete and ended, yielding and paying therefor yearly during the said term unto the said defendant and Sarah, his wife, or to one of them, and to the heirs and assigns of the said defendant and Sarah, £14 of lawful money of England at four feasts or terms of the year, that is to say at the feasts of the nativity of St John Baptist [24 June], St Michael the archangel [29 September], the birth of our Lord God, and the annunciation of our Lady, or within the space of eight and twenty days next after every of the same feast days, by even portions.
And the said James Burbage, for him, his executors, administrators and assigns, did by the said indentures covenant with the said defendant and Sarah, his wife, their heirs and assigns, that he, the said James Burbage, his executors, administrators or assigns, at his or their own proper costs and charges, the said houses or tenements, barn, gardens and all other things by the said indenture demised, in all manner of needful reparations well and sufficiently should repair, uphold, sustain, maintain and amend from time to time when and so often as need should require, and the same so well and sufficiently repaired and amended in the end of the said term of one and twenty years should leave and yield up.
And the said defendant and Sarah, his wife, did covenant by the said indentures that it should be lawful for the said James Burbage, his executors, administrators and assigns, or any of them, at any time during the first ten years of the said term of one and twenty years, to alter, change, remove or take down any of the houses, walls, barn or buildings then standing and being in and upon the premises, or any part thereof, and the same to make, frame and set up into what form or fashion for dwelling house or houses it should seem good to the said James Burbage, his executors or assigns for the bettering thereof, so that the premises demised and the new buildings afterwards to be made should or might be reasonably, from time to time, set at a more value and greater rent than by the said indentures they were let for.
Towards the doing and finishing whereof in form aforesaid, the said defendant and Sarah, his wife, did covenant with the said James Burbage, his executors, administrators, and assigns ... that it should be lawful for the said James Burbage, his executors and assigns to have and to take to his and their own proper use and behoof forever all the timber, tile, brick, iron, lead and all other stuff whatsoever of the said old houses or buildings which should come by reason thereof.
And further, the said James Burbage, for him, his executors, administrators and assigns, did by the said indentures covenant with the said defendant and Sarah that he, the said James Burbage, his executors, or assigns, as well in consideration of the said lease and term of years before ... granted, as also for and in consideration of all the timber, brick, tile, lead and all other stuff coming of the said tenements, barn and all other the premises to be had and enjoyed in form aforesaid, should and would, at his and their own costs and charges, within ten years next ensuing the date of the said indentures employ and bestow in and upon the building, altering and mending of the said houses and buildings for the bettering thereof, as is aforesaid, ... the sum of £200 ... at the least, the value of so much of the said old timber and stuff as should be employed and bestowed thereabouts to be accounted parcel of the said sum of £200. And the same buildings so to be made, should, at all times after the making thereof, at the costs and charges of the said James, his executors and assigns,… [be repaired, kept, made and maintained] from time to time as oft as need should be during the said term. And all the said messuages, buildings, gardens, tenements and other the premises, and every part thereof, sufficiently repaired, made and amended, [he and they] in the end the said term should leave and yield up.
And it was further conditioned ... that if it should happen the said yearly rent of £14 to be behind unpaid in part or in all after or over any feast day of payment thereof at which the same rent ought to be paid by the space eight and twenty days, being lawfully asked, and no sufficient distress or distresses in or upon the said premises, or any part thereof, for the said rent and the arrearages thereof could or might be found, or if the foresaid sum of £200 should not be employed or bestowed within the time and space aforesaid,… that then it should be lawful for the defendant and Sarah, his wife, and to the heirs and assigns of the defendant, into the said houses or tenements, barn and all other things by the said indentures granted to re-enter.
And furthermore, the defendant and Sarah, his wife, did covenant with the said James Burbage, his executors and assigns,… that they, the said defendant and Sarah, his wife, or one of them, should and would at any time within ten years next ensuing the date of the said indentures, at and upon the lawful request or demand of the said James Burbage, his executors, administrators or assigns, at his and their costs and charges in the law, make or cause to be made to the said James Burbage, his executors or assigns a new lease or grant like to the former of all the foresaid houses or tenements, barn, gardens, grounds or soil, and of all other things by the said indentures granted, for the term of one and twenty years to begin and take commencement from the day of the making of the same lease so to be made, yielding therefore yearly the foresaid yearly rent of £14 at the feasts before mentioned and under such like covenants, grants, conditions, articles and agreements as were in the said indentures mentioned and expressed and none other (except the covenant for making a new lease within ten years and the covenant for employing the foresaid sum of £200).
And further, the defendant and Sara, his wife. did covenant with the said James Burbage, his executors and assigns, by the said indentures, that it should be lawful to the said James Burbage, his executors or assigns in consideration of the employing and bestowing of the foresaid sum of £200 in form aforesaid, at any time before the end of the said term of one and twenty years,… or before the end of the foresaid one and twenty years thereafter by virtue of the said indentures to be granted, to take down and carry away to his and their own proper use all such buildings and other things as should be builded, erected or set up in or upon the gardens and void ground by the said indentures granted, or any part thereof, by the said James, his executors, or assigns, either for a theatre or playing place, or for any other lawful use, for his or their commodities (except such buildings as should be after made ... by reason of the employing and bestowing of the said sum of £200), as the complainant [Cuthbert Burbage] in his bill of complaint in part hath alleged, and as in and by the said indentures (whereunto the defendant referreth himself) more fully may and doth appear.’
A document from 1 August 1577 about the new playhouse:
'[The privy council ordered that:] A letter [be sent] to the Lord Wentworth, Master of the Rolls, and Mr Lieutenant of the Tower, signifying unto them that for the avoiding of the sickness likely to happen through the heat of the weather and assemblies of the people of London to plays, her highness's pleasure is that as the Lord Mayor hath taken order within the City, so they immediately . . . shall take order with such as are and do use to play ... within that county [Middlesex], ... as the Theatre and such like, shall forbear any more to play until Michaelmas be past at the least ...’
A document dated 9 August 1577:
‘James Burbage and one John Brayne ... came to this deponent [William Nicoll, a notary public] to his then shop ... in the Old Jewry in London and required to have a lease and covenants drawn between them of the moiety of certain houses, . . . barn, stable, Theatre, gardens and other premises ... held by lease of one Giles Allen ... at Holywell near unto Finsbury Fields ... At which time the said James Burbage and John Brayne did declare to this deponent that though the lease was taken in the name only of the said James Burbage, yet it was meant to be for both their uses, and, therefore, he, the said James Burbage was willing to assure the one moiety of the premises to the said John Brayne. Whereupon this deponent did draw and engross an indenture of lease between them dated the 9th day of August  ... to the effect of their then agreements. Which lease so engrossed this deponent thinketh ... was not sealed by the same James Burbage, for that the original lease ... was then at pawn for money which was borrowed for the building of the said Theatre.’
The following document relates a 'brabble' at the Theatre, from 5 October 1577:
‘[William Fleetwood, Recorder of London, writing to the Lord Treasurer, Burghley:] Yesterday ... I was at London with the Master of the Rolls at my Lord Mayor's at dinner ... After dinner we heard a brabble between John Wotton and the lieutenant's son of the one part and certain freeholders of Shoreditch for a matter at the Theatre. I mistrust [i.e. suspect] that Wotton will be found in the fault, although he complained.’
Churchman 'T.W.' on the Theatre, from 3 November 1577:
‘Behold the sumptuous Theatre houses. . . .’
Similarly, Northbrooke, on 2 December 1577:
'A spectacle and school for all wickedness and vice to be learned in . . . [are] those places ... which are made up and builded for such plays and interludes, as the Theatre and Curtain is [sic] and other such like places.'
In the following document (22 May 1578), Burbage will give Brayne half the Theatre. However, the two men argue:
‘John Brayne ... about the 22nd of May  ... did require this deponent [William Nicoll, the notary public] to draw an obligation wherein the said James Burbage should be bound to the said John Brayne in £400 for the making unto the said John Brayne ... a good and lawful lease, grant and other assurance of the moiety ... of all and singular the said Theatre and other the premises granted to the said James Burbage by the said original lease, and of all the benefit of the covenants, grants and agreements comprised in the said lease. Which bond or obligation this deponent made and engrossed according to the agreement between the said parties. And afterwards the said James Burbage did seal and deliver as his deed the said obligation to the said John Brayne in the presence of this deponent and one John Gardiner, as by the said obligation and teste thereof (whereunto he, this deponent, referreth himself, being showed unto him at this his examination) doth appear.
And further this deponent saith that shortly after the sealing of the said bond there grew some contention between the said James Burbage and John Brayne touching the indifferent dealing and collecting of the money for the galleries in the said Theatre, for that he well remembreth the said John Brayne did think himself much aggrieved by the indirect dealing of the said James Burbage therein. And coming then both together in the shop of this deponent ... they, the same James Burbage and John Brayne, fell a-reasoning together of the ill-dealing of the said James Burbage. At which time this deponent was present and doth well remember that the said John Brayne did declare these words or the like, in effect, how he had left his trade and sold his house by the means of the said James Burbage to join with him in the building of the said Theatre, and that he had disbursed a great deal more money about the same than the said James Burbage had and there repeated what he had laid out and what the said Burbage had laid out (the certain sums the deponent doth not now certainly remember, but he thinketh that the sum then disbursed by the said John Brayne was three times, at the least, as much more as the sum then disbursed by the said James Burbage), and in the end declared so many words of the ill-dealing of the said Burbage towards him in that dealing of the Theatre that Burbage did there strike him with his fist. And so they went together by the ears in so much that this deponent could hardly part them.’
Robert Miles, in a document from 30 July 1592 about the Burbage/Brayne disagreement, can be quoted as follows:
‘He hath been privy and present at ... divers variances and contentions between the said John Brayne and James Burbage for and concerning the matters and profits of the said Theatre. And that they did submit themselves therein to the award and arbitrament of one Richard Turner and John Hill, men of great honesty and credit, to make a final end of all matters in question between them, who upon great discretion and indifferency between them both, having thoroughly heard their griefs and demands, did arbitrate and award in writing indented between them, ready to be seen, that from thenceforth the said John Brayne, his executors and assigns should have, receive and enjoy to them and their own uses during the said lease the one-half, or moiety, of the profits that should grow and rise by the plays to be used there, and also of the rents, fines and other yearly profits of such other tenements and places there as should yearly grow due for the same, and the said James Burbage, his executors and assigns to have also the other moiety of the premises during the said lease in like manner. . . .
The said arbitrators did also award between them that if occasion should move them, the said James Burbage and John Brayne, to mortgage the said lease upon the borrowing of any sum of money to pay debts concerning the said Theatre, that then they both should join in the same mortgage, and that money coming of the profits of the said plays and the other said rents and fines to go to the redemption of the said lease, as by the said award may appear. . . .’
Ralph Miles, on 26 April 1592, had this to say:
‘And ... before those debts were satisfied and discharged, neither the said Brayne nor the said Burbage, nor their executors should have nor enjoy any part or parcel thereof to his own or their own use, but only that the said Brayne should have 10s by the week for and towards his housekeeping [i.e. ownership of the playhouse] and the said Burbage to have 8s, as he remembreth, weekly out of the same for and towards his housekeeping, of the profits of such plays as should be played there upon Sundays, and that when the said debts were discharged, that then the said Brayne should take and receive all the rents and profits of the said Theatre to his own use till he should be answered such sums of money which he had laid out for and upon the same Theatre more than the said Burbage had done.’
Nicoll, on 31 July 1592, added the following:
‘This deponent saith that ... the 12th day of July  ... the said Richard Turner and John Hill did make, enseal and give up their award between the said James Burbage and John Brayne in the presence of this deponent and George Gosse, then his apprentice, as by the said award indentcd and teste thereof (which was showed to this deponent at this his examination) doth appear. . . .’
On 24 August 1578, Stockwood commented as follows (quoted from his A Sermon at Paul's Cross):
‘The Theatre, the Curtain and other places of plays in the City ... The gorgeous playing place erected in the [Finsbury] Fields, . . . as they please to have called it, a Theatre.’
A document from 25 August 1578 stands as evidence of swordplay at the playhouse:
‘Edward Harvie played his provost's prize the 25th ... of August at the Theatre at three weapons, the two-hand sword, the back sword, and the sword and buckler. There played with him one provost, whose name is John Blinkinsop, and one free scholar, called by name Francis Calvert, who had a provost's licence for that time. And so the said Edward Harvie was made a provost under Richard Smyth, master, 1578.’
A document from 26 September 1579 about the property:
‘John Brayne ... and one John Prynn, a broker, did take up, borrow, and owe unto him, this deponent, about the 26 day of September 1579 the sum of £125 8s 11d or thereabouts, as this deponent remembreth, and he doth also well know and remember that the said James Burbage, the now defendant, did about the same time mortgage and convey unto him, this deponent, the lease and all his title therein of and in the Theatre and other buildings in Holywell in ... Middlesex, the which he had of one Giles Allen and Sarah his wife, upon condition to this effect, that if the said some of £125 were repaid to him, this deponent, or to his assigns within twelve months and one day next ensuing after the said September 1579 by the said James Burbage, that then he, this deponent, should reconvey to him, the said James, the lease and Theatre and other the premises again. And, as he remembreth, the lease and other bonds made by Giles Allen for the enjoying thereof were delivered into his hands and possession at the time of the said conveyance sealed by the defendant, which was done with the consent and appointment of the said John Brayne ... [James Burbage] for this deponent's better security, stood bound to him, this deponent, jointly with the said Brayne and Prynn in a bond of £200 (as this deponent remembreth) with condition endorsed as well for the repayment of the said money at the time appointed as for the performance of the covenants and performing the said mortgage.’
In 1579 Stephen Gosson's The School of Abuse discussed plays at the Theatre:
‘And as some of the players are far from abuse, so some of their plays are without rebuke, which are easily remembered and as quickly reckoned: ... The Blacksmith's Daughter and Catiline's Conspiracies, usually brought into the Theatre, the first containing the treachery of Turks, the honourable bounty of a noble mind, and the shining of virtue in distress. The last, because it is known to be a pig of mine own sow, I will speak the less of it, only giving you to understand that the whole mark which I shot at in that work was to show the reward of traitors in Catiline and the necessary government of learned men in the person of Cicero, which foresees every danger that is likely to happen, forestalls it continually ere it take effect ... These plays are good plays and sweet plays.’
Plays at the Theatre were discussed in 1579 by Harvey in his Letter Book:
‘Leicester's, Warwick's, Vaux's or Rich's men or some other fresh start up comedians [may ask Harvey] for some malt-conceived comedy fit for the Theatre or some other painted stage.’
A document from 21 February 1580 reports that Burbage and Brayne were indicted at one point:
‘The juries on behalf of our lady the Queen present that John Brayne ... and James Burbage ... on 21 February , . . . and divers other days and times before and after, congregated and maintained illicit assemblies of people to hear and see certain ... plays or interludes put into effect and practised by the same John Brayne and James Burbage and divers other persons unknown at a certain place called the Theatre in Holywell ... On account of which illicit assembly of people, great affrays, reviling, tumult and near insurrections, and divers other malefactions and enormities were then and there made and perpetrated by a great many ill-disposed people in a great disturbance of the peace of our lady the Queen, and also subversion of good order and government, and also to the peril of the lives of divers good subjects of the said lady Queen being in the same place, and also contrary to the peace of the same lady Queen and likewise the form of the statute for that purpose decreed and provided, etc.’
Evidence of an earthquake from 6 April 1580:
‘The earthquake ... shaked not only the scenical Theatre but the great stage and theatre of the whole land.’
The following document (10 April 1580) reports a riot at the playhouse:
‘Where it happened on Sunday last that some great disorder was committed at the Theatre, I [the Lord Mayor of London writing to the Lord Chancellor] sent for the under sheriff of Middlesex to understand the circumstances, to the intent that by myself or by him I might have caused such redress to be had as in duty and discretion I might, and, therefore, did also send for the players to have appeared afore me, and the rather because those plays do make assemblies of citizens and their families of whom I have charge. . . .’
A document about the mortgage on the playhouse from 8 December 1590 (Hyde):
‘After the said lease became forfeited to him, this deponent, it was agreed on both sides that, if the said Burbage and Brayne, or either of them, did pay this deponent £5 a week till all the foresaid mortgage money were paid with some reasonable consideration for the forbearing of it, that then they should have their lease again, which they performed by the space of 4 or 5 weeks after. But they performed no more, and so suffered their lease to be once again forfeited to this deponent.’
Burbage then offered evidence on 16 February 1591:
'The said [John] Brayne ... did procure this deponent to mortgage the lease of the said Theatre ... for one year, and after that for another year with a proviso that for the non-payment of the said sum ... the said lease to be forfeited, which was forfeited accordingly by the non-payment of the money.'
Then, we know that Hyde deposed, on 12 February 1592:
'Not only the said lease but the said James Burbage['s], the defendant's, title therein was absolutely forfeited and lost to him, this deponent, for the non-payment of the said sum of £125 8s 11d or thereabouts according to the time limited for the payment thereof and to the effect of the said deed of mortgage. And he, this deponent, did account and repute himself to be thereby rightful owner of the said lease and title therein of the said James Burbage.'
Hyde deposed on 21 February 1592:
'[He] did many and sundry times tell both the said John Brayne, the said James Burbage, [Margaret Brayne], ... and others her friends that if he ... were paid his money that was behind due [and reasonable consideration] for the forbearing thereof, that he would never take any advantage of the said forfeiture.'
Evidence of a play at the Theatre from 22 February 1582:
'[Richard Madox] went to the Theatre to see a scurvy play set out all by one virgin, which there proved a freemartin ['fyemarten' - i.e. an imperfect female] without voice, so that we stayed not the matter.’
A bill from Cuthbert Burbage, 26 January 1600:
‘There was much variance and controversy between [Giles Allen] . . . and one Edmund Peckham touching the title of the premises, . . . by reason whereof the said James Burbage, this complainant's [Cuthbert Burbage's] father, was very much troubled and often charged to find men to keep the possession of the said premises from the said Edmund Peckham. Neither could this complainant's said father enjoy the said premises according to the lease to him made by the said defendant. For which causes (if any part of the rent were unpaid) it may be this complainant's said father detained some part of the rent in his own hands.’
A statement from Randolph May (a painter), from 15 May 1600:
‘This deponent saith he well remembreth that about eighteen years now last past there were suits between the defendant, Allen, and one Edmund Peckham touching the title of the Theatre and lands in the deceased James Burbage his possession. And by reason thereof the said James Burbage was much hindered and troubled, and was often charged to find men to keep the possession of the premises in controversy between Allen and Peckham, and was once in danger of his own life by keeping possession thereof from Peckham and his servants. And [James Burbage] could not enjoy the premises peaceably and quietly according to his lease. And ... he [May] knoweth the same to be true for that he was then there, a servant in the house called the Theatre. And [he] knoweth that the said James Burbage lost much money by that controversy and trouble, for it drove many of the players thence because of the disturbance of the possession.’
A statement from yeoman Oliver Tilte, from 15 May 1600:
‘This deponent saith that ... James Burbage ... did pay him, this deponent, and others wages for keeping the possession of the Theatre from the said Mr Peckham and his servants. Whereby he saith he verily thinketh that the said James Burbage was at great charge, for he paid men wages for keeping possession so long as the controversy was between Mr Allen and Mr Peckham.’
A document from June 1582 about the mortgage on the playhouse:
‘He [Hyde] was offended that the said [James] Burbage and Brayne did not repay him the said sum of £125 8s 11d, and did thereupon threaten to put the said Burbage out of possession of the said Theatre and buildings ... and thereupon did cause the said James Burbage to be arrested by process out of ... [King's] Bench about June, as he remembreth, 1582. And the said Burbage did thereupon come to this deponent's [Hyde's] house with the officer or bailiff that had him arrested, and this deponent's wife in his absence did accept of £20 paid unto her to this deponent's use by the defendent [Burbage]. And the same defendant was thereupon either by him, this deponent, or his wife (but precisely by whether of them he doth not now remember) discharged from the bailiff upon condition that he, the same defendant, should come unto him, this deponent, whensoever he, the same deponent, did send for him to take order in the premises. And the said defendant did accordingly repair unto him and did give unto him, this deponent, new bonds with a surety for his forthcoming to this deponent's house at an hour's warning to be subject to his, this deponent's, actions ...
Burbage did complain unto him that the said Brayne had received and gotten into his hands a great portion of money levied in the said Theatre at the play times and that he would catch what he could and that he [Burbage] ... could not enforce him to deliver any part thereof neither to him [Burbage] . . . nor unto him, this deponent, towards an agreement with him, this deponent, in the premises ...
He thereupon did send his servants to charge the said Brayne not to deal any further with anything concerning the said Theatre except he would deliver unto him, this deponent, the money he received. And this deponent remembreth that he did appoint one or his servants with the said James Burbage, as in his, this deponent's, right, title and interest, to discharge, dismiss, and put out the said Brayne from the said Theatre ...
By reason the said Brayne would not depart [i.e. part] with the money he had received, he, this deponent, was constrained to appoint one of his servants and the said James Burbage ... to gather up £5 weekly during the time of plays, thinking by that means to have paid himself with the profits of the Theatre, for that he saw the said Brayne to be so bad a fellow. And this deponent by that rate did receive in money to the sum of £20 or £30 as he remembreth.’
Evidence that the Queen's Men are at the Theatre in 1583, from Harington's Metamorphosis of Ajax:
'[Harington mentions a vulgar word,] 'prepuce', which word was after admitted into the Theatre with great applause by the mouth of Master Tarlton, the excellent comedian.’
Evidence of trouble at the playhouse, dated 10 June 1584. (A recorder of London, William Fleetwood, wrote to Lord Burghley):
'Upon Wednesday, one Browne, a serving man in a blue coat, a shifting fellow having a perilous wit of his own, intending a spoil if he could have brought it to pass, did at [the] Theatre door quarrel with certain poor boys, handicraft apprentices, and struck some of them, and lastly he with his sword wounded and maimed one of the boys upon the left hand. Whereupon there assembled near . .. 1,050 people. This Browne did very cunningly convey himself away, but ... he was taken after.’
Evidence that James Burbage was having problems with the City of London (14 June 1584):
‘Upon Sunday my Lord [Mayor] sent two aldermen to the court [i.e. Whitehall] for the suppressing and pulling down of the Theatre and Curtain. All the lords [of the privy council] agreed thereunto, saving my Lord Chamberlain and Mr Vice-Chamberlain, but we obtained a letter to suppress them all. Upon the same night I sent for the Queen's players and my Lord of Arundel his players, and they all willingly obeyed the lords' letters. The chiefest of her highness's players advised me to send for the owner of the Theatre [James Burbage], who was a stubborn fellow, and to bind him [i.e. make him sign a bond guaranteeing, presumably, that he would close the Theatre]. I did so. He sent me word that he was my Lord Hunsdon's man and that he would not come at me, but he would in the morning ride to my Lord [Mayor]. Then I sent the under-sheriff for him and he brought him to me. And at his coming he stouted [i.e. braved] me out very hasty. And in the end I showed him my Lord [Hunsdon's], his master's hand, and then he was more quiet. But to die for it, he would not be bound. And then I minding to send him to prison, he made suit that he might be bound to appear at the [sessions of] oyer and terminer [at Newgate], the which is tomorrow, where he said that he was sure the court would not bind him, being a [privy] councillor's man. And so I have granted his request, where he shall be sure to be bound or else is like to do worse.’
A bill (Cuthbert Burbage) dated 26 January 1600:
‘The said first term of ten years drawing to an end, the said James Burbage did oftentimes in gentle manner solicit and require the said Giles Allen for making a new lease of the said premises according the purport and effect of the said covenant [in the old lease] and tendered unto the said Allen a new lease devised by his [Burbage's] counsel, ready written and engrossed with labels and wax thereunto affixed, agreeable to the covenant before recited, which he, the said Allen, made show that he would [sign and] deliver yet by subtle devices and practices did from time to time shift of the finishing thereof.’
A statement by Philip Baker (26 April 1600):
‘Saith he hath heard the defendant [Allen] and others say that the complainant's father [James Burbage] did ... tender and deliver unto the defendant a draft of a new lease of certain houses and grounds which the said defendant had before that time formerly demised unto him, the complainant's father. And that the complainant's father did upon the delivery thereof require the defendant to seal and deliver the same according to form of law in those cases provided. And the defendant said in his, this deponent's, presence that he refused the same for that the lease which the complainant's father so tendered unto him was not verbatim agreeable with the old lease before demised, as their agreement was together. And for that there was some rent behind and unpaid for the premises upon the old lease.’
A statement by Henry Johnson (26 April 1600):
‘Saith that ... the defendant refused to seal the lease tendered for that he said it was not according to the same covenants contained in the old lease, and for that the said complainant's father (as the defendant then affirmed) was behind with the payment of part of his rent reserved upon the old lease. And ... he knoweth the same to be true for that he was present when the same lease was tendered by James Burbage to the defendant to seal, at which time the said James Burbage answered the defendant that whatsoever was amiss in the new lease was not long of him but the scrivener who drew the same.’
William Smyth's statement from 15 May 1600:
‘Saith he hath heard the defendant ... confess that James Burbage aforesaid did tender unto him, the defendant, a new lease ready written and engrossed, ready to seal according [to] the covenants and provisos contained in the first lease. And he, the defendant, upon the same tender, asked the said James Burbage and the scrivener (who brought the same lease with them, ready to be sealed) if they would give him leave to advise of it. Whereupon they answered 'no'. 'Then', said the defendant, 'if you will not give me leave I will take leave', and [he] took the said lease and since then kept it in his own possession and never sealed the same.’
A document from 20 November 1585 about James Burbage and his expenditure on the playhouse:
'[Thomas Osborne, a carpenter who testified for Cuthbert Burbage on 15 May 1600,] saith that ... he did hear the said Bryan Ellam, William Bothan and William Clerke affirm and say that they had taken a ... view of Mr James Burbage his buildings, and costs bestowed upon the premises, which view, they said they made about the twentieth day of November ... 1585, and that they had confirmed the same under their hands in a book of account of the said Mr James Burbage, and that then the same came ... to £220, and that he thinketh it could be no less, for that it seemed there had been great cost bestowed upon and about the same by the said Mr James Burbage, and for that they who were viewers thereof were workmen of good judgement in building and had wrought upon the same for the said James Burbage at his charge.’
A series of documents explaining an arrangement between the Theatre and the Curtain (James Burbage, from 16 February 1591):
'[He and Brayne] join[ed] in a grant to one Henry Lanman, gentleman, of the one moiety of the said Theatre and of the profits and commodities growing thereby for certain years yet enduring, as by the deed thereof may appear, and bound themselves in great bonds for the performance thereof.’
Actor John Alleyn's contribution (6 May 1592):
'[He knew that] one Henry Lanman had ... part of the profits of the ... [Theatre] and so must till Michaelmas now next coming. [Moreover, he had seen Burbage pay some of the profits of the Theatre to Lanman,] which profits, as this deponent hath heard the said James Burbage say, were due unto the said Lanman and that he and the said Brayne were both bound by writing to pay the same unto him in consideration that the said Lanman did grant unto them the one-half of the profits of the other playhouse thereby, called the Curtain.’
Henry Lanman's contribution (the Curtain's owner), from 30 July 1592:
'About seven years now shall be this next winter, they, the said Burbage and Brayne, having the profits of plays made at the Theatre and this deponent having the profits of the plays done at the house called the Curtain near to the same, the said Burbage and Brayne, taking the Curtain as an easer to their playhouse, did of their own motion move this deponent that he would agree that the profits of the said two playhouses might for seven years' space be in divident between them. Whereunto this deponent, upon reasonable conditions and bonds, agreed and consented and so continueth to this day. And [Lanman] saith that at the first motion of this agreement the said Brayne had his portion duly answered him of the said profits and until he died.’
In 1586 John Brayne died. In the following documents his widow appears to have believed Robert Miles was the murderer of her husband (July-August 1586).
James Burbage's 1588 statement:
'In the time of his sickness and not long before his death [Brayne] promised, confessed and agreed with … James Burbage and his said wife … that as well the moiety of the premises and all matters whatsoever concerning the said Theatre and buildings and his moiety therein to be assured . . . were and should be and remain if he died (for that he had no children) . . . to your orator's [i.e. James Barbage's] the children aforesaid, whose advancement he then seemed greatly to tender.’
A statement from Henry Bett (30 September 1591):
'At his [Brayne's] death . . . he [Brayne] charged Miles with his death by certain stripes given him by Miles, who was afterwards called by the suit of the said Margaret before an inquest held by the coroner for the county of Middlesex for the inquiry thereof.’
Furthermore, Margaret Brayne appears to have obtained profits from the Theatre and Curtain (possibly during 1586-87).
A statement from Henry Bett (30 September 1591):
'[He] saith that ... after ... [John Brayne's] death the said Margaret did take up some money at the playhouse called the Curtain, but by what right or by whose sufferance she so received the same, this deponent knoweth not.’
A statement from Ralph Miles (10 February 1592):
'He did hear say since the decease of the said Brayne that the said James Burbage did earnestly persuade the said complainant [Margaret Brayne] to bestow all the money that she was able to make in repairing and building about the said Theatre. And in that respect he suffered her a certain time to take and receive the one-half of the profits of the galleries of the said Theatre until she had spent and bestowed upon the same all that she had received and a great deal more. And then, on a sudden, he would not suffer her to receive any more of the profits there, saying that he must take and receive all, till he had paid the debts. And then she was constrained as his servant to gather the money and to deliver it unto him, and shortly after he would not suffer her any way to meddle in the premises but thrust her out of all and so useth her to this day.’
A deposition of Robert Miles (30 July 1592):
'He doth well remember that the said James Burbage, after the death of the said Brayne and before the redemption of the said lease, did for a time suffer the complainant to take some of the profits of the said plays, so long as she was able to lay out money to the necessary use of the said playhouse to the sum of £30 or thereabouts, as she reported, and no longer. Whereupon this deponent on the complainant's behalf, both before and since the redemption of the same, charged them [the Burbages] with the same, and the said James made answer that she should have her moiety according to the said award when all their debts were paid.’
Evidence of a legal dispute between Margaret Brayne and Robert Miles (though they later join forces against the Burbages):
'He [Bett] hath heard it reported that the said Miles hath made great boast that it is he that will maintain and defend her herein [i.e. Margaret Brayne in her lawsuits], albeit she did procure his trouble before the coroner's inquest and did impute to him the death of her husband and procured him to be indicted as a common barrator. But of his own knowledge herein he knoweth nothing.’
Two documents show that John Hyde attempted to collect money.
Hyde (8 December 1590):
'After the death of the said Brayne and after the receipts as aforesaid, he [Hyde] did say and give it out in speech that he had set over and assigned the said lease and bonds to one George Clough, his, this deponent's, father-in-law, but in truth he did not so ... But this deponent [Hyde] thinketh that the said Clough, his father-in law, did go about to put the said defendant [James Burbage] out of the Theatre, or, at least, did threaten him to put him out. And, as this deponent remembreth, the said Burbage did tell him that he could not accomplish such order as he, this deponent, and his said father-in-law, Clough, had set down and prescribed to him for the redemption of his said lease.’
George Clough (8 December 1590):
'On a time, but certainly how long sithence he [Clough] remembreth not, one John Hyde of London, grocer, who had married this deponent's wife's daughter, told him, this deponent, that he had certain money owing unto him by one Burbage and one Brayne, as this deponent remembreth, and that for his security of the payment thereof he had assigned unto him a lease of the Theatre, and told this deponent that he could not have his money paid and therefore requested him, this deponent, being his father-in-law, to go unto the said Burbage to demand of him the money he owed him and to say that he had assigned over the said lease to him, this deponent. And this deponent thereupon went divers and sundry times to the said Burbage and received money of him due to the said John Hyde, whereof he made unto the same John Hyde an account from time to time as he received the same, but how much the same moneys did amount unto this deponent remembreth not. Neither did he at any time to his remembrance ... [go] about to put the now defendant out of the Theatre.’
The following lengthy document shows that James Burbage countersued Margaret Brayne in 1588:
'One John Brayne, late of Whitechapel, [ . . . ] he practised to obtain some interest therein [i.e. the Theatre property and the buildings on it], presuming that he might easily compass the same by reason that he was natural brother [of your said orator's wife . . . ] divers sums of money, he made means to your said orator, James Burbage, that he might have the moiety of the above-named Theatre and [ . . . ] that in consideration thereof he would not only bear and pay half the charges of the said buildings then bestowed and thereafter to be bestowed [ . . . ] your orator's aforesaid, her children should have the same moiety so to him to be conveyed and assured, making semblance that his industry was [ . . . ] children of his sister as is aforesaid. Whereupon your said orator, James Burbage, did become bound to the said Brayne in £400 [ . . . ] effect that your said orator should at the request of the said John Brayne his executors or assigns convey to him the said John Brayne, his [executors and assigns . . . ] to be erected upon the premises demised by the said Giles Allen to your said orator with such covenants and warranties as your orator might [ . . . ] lease made by the said Giles Allen was then, or thereafter should be, charged with by any act then done, or thereafter to be done, by your [said orator . . . ] money borrowed by your said orator, as by the same obligation and condition more at large it doth and may appear.
And after the [ . . . ] amounting unto exceeding charges about the said buildings than of ability to support the same and having gotten your said orator to be bound [ . . . ] to redeem the said lease, nor had wherewith to proceed in those manner of buildings wherein he had procured your orator to enter into [ . . . ] charge any sums of money grown due for the said buildings, nor pay the moiety of the rent aforesaid, but with your orator's money the profits [ . . . ] wealth of the said Brayne before, being conferred and weighed with the costs upon the said inn [i.e. the George in Whitechapel] by him bestowed after it manifestly appeared and [ . . . ] and finishing of the said buildings to his great hindrance, as is well to be proved.
And after, for that your said orator, James Burbage, had no bond [ . . . ] so by him to be received out of the premises from thenceforth upon the said buildings and maintenance thereof, he, the said Brayne, and the said James Burbage, your [said orator . . . ] arbitrament of certain arbitrators, who thereupon, according to the said submission, did deliver up an award or arbitrament in writing dated about the year [1578 . . . ] John Brayne should not be comprised within the compass of the said arbitrament, but that as well by force thereof as by virtue of the said arbitrament your said orator [ . . . ] Theatre and buildings and of the moiety of the profits thereof whensoever the said Brayne would demand the same, with such exception of acts as is aforesaid [ . . . with] which arbitrament your said orator did content himself and did permit and suffer the said John Brayne to receive the moiety of the profits of the said Theatre and [ . . . ] on his part.
But the said John Brayne, being a very subtle person and confederating himself with one Robert Miles of London, goldsmith, [blank: i.e. William] Tomson of [ . . . ] they might impoverish your said orator and to deprive him of his interest and term for years in the said Theatre and buildings and to bring him into the danger [ . . . ] same, he, the said Brayne, not meaning to give the said moiety nor his interest therein to your said orator's the children aforesaid nor the lease of the said George [ . . . ] the moiety of the profits of the premises as is aforesaid, the which promise was made as well before as after the said arbitrament made as is aforesaid. But practising to deprive [ . . . ] again made a deed of gift to the said Tomson and thereby did give and grant to him all his goods and chattels whereof he was then, or thereafter should be, possessed. Whereby [ . . . ] for the recovery of the bond of £200 to him forfeited by the said Brayne for the not performing of the said arbitrament, nor to levy the same out of his goods and chattels [ . . . ] against the body of the said Brayne for the same, the which during his life he was loath to do for that he was his brother-in-law, as is aforesaid. The benefit [ . . . ] the said Tomson, the said Brayne, for the maintenance of his said fraud and devices, procured the executors or administrators of the said Tomson to convey to the said Robert [Miles . . . ] so granted to the said Tomson by the said Brayne with the lease of the said inn called the George also at his own death or not long before, he fearing [ . . . ] ample conveyance of all his goods and chattels which he then had to the said John Gardiner and to others, to the intent that he or they by force thereof should or might enter into [ . . . ] or other the premises, or that the said Miles by virtue of the same deed of gift made to the same Tomson should challenge or demand the same or to incur the danger [ . . . ] in the time of his sickness and not long before his death promised, confessed, and agreed with your said orator, James Burbage, and his said wife in the presence [ . . . ] of the said Miles that as well the moiety of the premises and all matters whatsoever concerning the said Theatre and buildings and his moiety therein to be assured and [ . . . ] had received of and by the premises, as namely the lease of the George in Whitechapel, were and should be and remain if he died (for that he had no children and for [ . . . ] premises) to your orator's the children aforesaid, whose advancement he then seemed greatly to tender, and further promised to your said orator that his said bonds should be [ . . . ] of your said orator, James Burbage.
And after the said John Brayne died in anno 1586. By means whereof, now so it is, if it may please your honour, the [ . . . ] administration of the goods of her said late husband, the which she practised then to have) by the said John Gardiner and Robert Miles by reason that they claimed the same goods and chattels [ . . . ] conveyances) under the colour of a will supposed to be made by the said Brayne long before the said conveyances so made to the said Gardiner and Tomson, the which is supposed to be rased [ . . . ] that any such will should be maintained or produced. Yet by virtue thereof and being therein nominated to be executor to her said husband, she now as executor goeth about to arrest your said [orator . . . ] pretending that he did not perform the said arbitrament (as in truth he did) and for the said bond of £400, pretending that your orator hath also forfeited the same, as in truth he hath not. And [ . . . ] said husband denying that her said husband made any such promises as is aforesaid, either for the cancelling or conveying of the premises to your orators aforesaid. And the said Robert Miles by [ . . . ] then to sue your said orator, James Burbage, for the said bonds but hath entered into and upon the said Theatre and buildings and troubleth your orator and his tenants in their peaceable possession [ . . . ] both the issues and profits thereof by virtue of the conveyances made to him thereof. And the administrators of the said John Gardiner, who deceased in anno 1587, to whom the said bond [ . . . ] made to the said Gardiner demand and go about to sue your said orator, James Burbage, for the two several bonds. And amongst them by reason of multiplicity of [ . . . ] their conveyances and sometime denying the same to be good) they do all join together to imprison your said orator, James Burbage, thereby to enforce him to yield to their requests. And [ . . . ] impertinent actions only to procure him to great charges and to his impoverishment forever, the rather because by these devices he cannot have the said £200 due to him by the said [ . . . ] Brayne.
In tender consideration of the premises, and for that the said Margaret Brayne, Robert Miles, and [blank] Gardiner, the administrator of the said John Gardiner [ . . . ] said lease so being mortgaged and forfeited as is aforesaid and have the said lease to them reconveyed, do now demand the same moiety and will not permit the children aforesaid [ . . . ] all the said promises, the which now your said orators are unable to do by reason that the same promises were done in secret and in the presence only of the said Robert [ . . . ] or gone beyond the seas so that your orators cannot have their testimony in the premises, by which means your said orator, James Burbage, is without [ . . . ] the said bonds or to enforce them to cancel the same, nor the children aforesaid, by the ordinary course of the common law aforesaid cannot procure the [ . . . ] the premises so promised to them by the said John Brayne, the which to do the said Brayne was bound in conscience to so perform, and that the said bonds should [ . . . ] done by the said John Brayne and by your said orator James Burbage jointly in contradiction of the matters contained in the said bond and arbitrament so [ . . . ] not be performed if they, or any of them, had lawful interest therein, as they have not.’
Margaret Brayne and Robert Miles then responded in 1588 saying that what Burbage had stated was 'very untrue and insufficient in the [law]', and that what he had said was 'over tedious to be recited'.
Cuthbert Burbage evidently paid the mortgage and took possession of the lease (7 June 1589). On this, Ralph Miles reported the following on 10 February 1592:
'He was present with others when the said complainant, the widow Brayne, offered to the said John Hyde that if he would deliver up the lease unto her she would make shift for the money that was behind and would be bound to assure to the said James Burbage the one-half thereof, although he went about to do her wrong in it. Whereunto the said John Hyde made answer that he would not do so, 'but when', quoth he, 'I have my money I will deliver it up to you both, as I had it of your husband and him'. And then she told him, saying, 'Mr Hyde, if you do otherwise, you undo me.' 'Fear not, Mrs Brayne,' quoth he, 'I will be as good as my word when I am paid my money, for had it not been for your husband, whom I knew to be of credit, I would not have dealt with the other', or words to this effect.’
Also, we have the following form John Hyde (12 February 1592):
'It may be the said complainant [Margaret Brayne] did offer this deponent [Hyde] the money behind unpaid unto him of the said mortgage, for she came many and oftentimes unto him concerning the same, but, in truth, he doth not remember she made him any such offer. But he saith that if she had, and had performed the same, he would rather have put it over unto her than to the same Burbages, for that she did greatly complain unto him that James Burbage did her wrong and sought to put her from it. And saith that to his remembrance he did not hear her say that if this deponent did put it over to her she would be bound to convey the one moiety of it to the said James Burbage. And otherwise to this interrogatory he saith he cannot depose ...
The said James Burbage was sundry times in hand with this deponent that upon the payment of the money behind and some consideration for the forbearing thereof he, this deponent, should convey over the premises to his son, Cuthbert Burbage, and this deponent was very loath so to do without the consent of the complainant. And at the last, he and his son brought to this deponent a letter from one Mr Cope, one of the Lord Treasurer's gentlemen, the said Cuthbert's master, [saying] that he, this deponent, ... (at his request and as he might be able to do this deponent any friendship or pleasure in any [of] his occasions to his lord and master) should convey over his interest of and in the premises to his servant, Cuthbert Burbage, the son of the said James, upon the payment of such money as was due unto him and unpaid and upon some consideration for the forbearing of it. And this deponent (partly at the said gentleman's request and partly at instant [i.e. pressing] entreaty of the said James Burbage and his said son) did indeed upon the considerations aforesaid convey over the premises to the said Cuthbert ... But he well remembreth that he wished the said Burbages to do the complainant no wrong [since] her husband was dead and had left her in great lack, and that he did undo himself by entering in the doings of the Theatre. And they said, and many times have said, that they would do her no wrong ...
The said Burbages did promise this deponent that ... what was the complainant's [i.e. Margaret Brayne's] right and due to have, that she should have it at their hands.’
Further evidence survives from Giles Allen (January 1601):
'John Hyde afterwards, namely on 7 June ...  at the aforesaid Holywell, assigned all his interest and term of years that he had yet to come of and in the said tenements by the aforesaid James [Burbage] before acquired and demised, with the appurtenances, to the said Cuthbert Burbage by virtue of which the aforesaid Cuthbert entered those said tenements with the appurtenances and was thereupon possessed.’
Evidence of a play at the Theatre, in 1589, from Nashe's Martins Months Minde:
'Martin ... being ... sundry ways very cursedly handled, as ... wormed and lanced, that he took very grievously to be made a May game upon the stage. [In the margin:] The Theatre.’
A document from Chancery (13 November 1590):
'Forasmuch as upon the opening of the matter this present day by Mr Sergeant Harris, being of the defendant's [i.e. Burbage's] counsel, and seeking for stay of a sequestration prayed by a former order on the plaintiffs [i.e. Margaret Brayne's] behalf, and also upon the hearing of Mr Scott, being of the plaintiff's counsel, what he could say touching the cause: it seemed unto this court that there was an arbitrament heretofore made between the plaintiff's late husband and the said James Burbage the 12th day of July in ...  by one Richard Turner and John Hill touching the same matter which is now again brought in question, and that neither of the parties did now show any sufficient cause wherefore the same arbitrament or award should not be performed. It is therefore ordered that the said award or arbitrament shall be well and truly observed and performed according to the tenor and true meaning thereof, as well by the plaintiff and all claiming from, by, or under her, as also by the defendants and every of them and all claiming from, by, or under them or any of them, and the said order for sequestration shall be stayed.’
In a document from November 1590, it seems that the Burbages believed Miles and Margaret Brayne could have murdered John Brayne. The possibility of adultery is also mentioned:
'How often, to your knowledge, is the said Robert Miles indicted ... for ... adultery, or as you have heard? And ... was he called before the Coroner's Inquest for the death of Brayne, yea or no?'
A series of documents prove that Margaret Brayne attempted to take half the Theatre. Furthermore, surviving documentary evidence shows that the Burbages resisted this.
Cuthbert Burbage (16 February 1591):
'It is true indeed that Robert Miles ... and others with him came to this deponent's [Cuthbert Burbage's] father's dwelling house in Holywell by Shoreditch upon or about the 16th day of November ... for and in the name of the now complainant [Margaret Brayne], as he said, and demanded rent and the performance of the said award [i.e. the arbitrament of 1578] according to the said order [of 13 November 1590]. And what answer this deponent's said father made unto him he saith he remembreth not, but this deponent made him answer that he should have no rent there, [and] he would sufficiently answer the court the cause why when he were called, and withal told him that Brayne nor his wife had no right there, for it was his, this deponent's, and he had bought it with his own proper money, as they well knew ...
When the said Miles came to this defendant's father's house as aforesaid ... he came in such rude and exclamable sort as indeed his said father threatened to set him away off his ground if he would not go his way quietly ...
He cannot certainly depose what answer or speech ... [his] father made or uttered to the complainant at any time she came to him or to the Theatre for any rent or other demand concerning the moiety of the same, for he did not hear the same. Or, at the least, he did [not] heed the same ...’
James Burbage (16 February 1591):
'Robert Miles ... with two other persons with him, whose names he [James Burbage] knoweth not, in November last past (the certain day he now remembreth not) did in the behalf of the now complainant [Margaret Brayne] come to this deponent's [James Burbage's] dwelling house near the Theatre in Shoreditch and there did demand first of this deponent's son [Cuthbert Burbage] the moiety of the said Theatre and the rents of the same to her use and of the performance of the said award [i.e. the arbitrament of 1578]. And what answer this deponent's said son made him thereunto he cannot certainly tell. But he saith that this deponent, being within the house [and] hearing a noise at the door, went to the door and there found his son, the said Cuthbert, and the said Miles speaking loud together; and asking what the matter was, the said Miles did as a afore[said], demand the moiety of the said Theatre and the rent thereof and the performance of the said award on the complainant's behalf. And then this deponent told him that the order [of 13 November 1590] did not warrant any such demand of rent nor of any moiety of the said Theatre; and for the performance of the said award, he told him that he, this deponent, for his part, could not perform it better than he had done.
And then the said Miles said that by the said award the moiety of the Theatre and the rent thereof are to be had and received by and to the use of the said complainant. So it was indeed, quoth this deponent, before John Brayne himself and he, this deponent, did, after the making of the said award, join in a grant to one Henry Lanman, gentleman, of the one moiety of the said Theatre and of the profits and commodities growing thereby for certain years yet enduring, as by the deed thereof may appear, and bound themselves in great bonds for the performance thereof. And [he] further saith that long after the said arbitrament and award and before the grant made to the said Lanman, the said Brayne, the complainant's said husband, did procure this deponent to mortgage the lease of the said Theatre for the sum of £125 and odd money to one John Hyde of London, grocer, for one year, and after that for another year, with a proviso that for the non-payment of the said sum at a day the said lease to be forfeited, which was forfeited accordingly by the non-payment of the money. So as then the said Hyde was fully and absolutely possessed thereof to dispose of the same at his will and pleasure, by which means he, this deponent, doth verily take it that the said arbitrament and award was determined and dissolved ...
But he, this deponent, being nearly urged and dared by the said Miles with great threats and words that he would do this and could do that to the undoing and great disgrace of this deponent and his son, he, this deponent, told him that it was too much to face him so on his own ground and that he [Miles] knew he could not answer it. And that if he would not leave his railing and quietly depart, he, this deponent, would send him away ...
The said complainant with the said Miles and others came to the said Theatre, to the tenants thereof, and there very imperiously, since the said order, did challenge and demand rents of the same as due unto her for the moiety of the same according to the said arbitrament. And answer was made unto her and them that came with her, both by the said tenants and Cuthbert, this deponent's son, that she had nothing to do there and that they never knew her to have any interest in the same.’
Nicholas Byshop (29 January and 6 April 1592):
'[In answer to Margaret Brayne:] he doth ... know that the said Margaret Brayne with one Robert Miles came at several times to the said Theatre, and namely upon one of the play days, and entreated James Burbage, one of the now defendants, that she might enjoy her moiety of the premises according to the award and order of the Chancery [i.e. the arbitrament of 1578 and order of 13 November 1590]. And the answer which James Burbage made thereunto was that before she should have anything to do there she should show good order for it. And then the said Miles said that he had a sufficient order of the Chancery for the same and showed him some papers. And then the said Burbage called him rascal and knave and said before he would lose his possession he would make twenty contempts [of court]. And then the wife of the said James and their youngest son, called Richard Burbage, fell upon the said Miles and beat him and drove both him and the complainant [Margaret Brayne] away, saying that if they did tarry to hear the play as others did they should, but to gather any of the money that was given to go upon [the galleries?], they should not, and saith that Cuthbert Burbage, the other of the defendants, was not there to his remembrance.
[In answer to the Burbages:] he was requested by the said Margaret Brayne and Robert Miles, the father of the said Ralph Miles, to go with them to the Theatre upon a play day to stand at the door that goeth up to the galleries of the said Theatre to take and receieve for the use of the said Margaret half the money that should be given to come up into the said galleries at that door, according to the foresaid award and an order made thereupon by the Court of Chancery, requesting this deponent [Byshop], in very earnest manner, to resist no violence or other withstanding of him so to do that should be made to or against him in so doing by the said Burbages. At which time, for the better authority of the said Margaret so to do, there was showed forth in the hand of the said Miles to the said Burbages both the said arbitrament and order of the Chancery, and required the said Burbages to suffer the performance thereof. But ... the said James Burbage and his wife and his son, Richard Burbage, did with violence thrust this deponent and the said Margaret and Robert Miles away from the said door going up to the said galleries with vehement threats and menacing that if they departed not from the place they would beat them away.
And so, indeed, upon some words uttered by the said Robert Miles to the said Burbage wishing them to obey the said order, the said Richard Burbage and his mother fell upon the said Robert Miles and beat him with a broom staff, calling him 'murdering knave' with other vile and unhonest words. At which time the said James Burbage told the said Robert Miles that he had but a paper which he might wipe his tail with, and rather than he would lose his possession he would commit twenty contempts. And by cause this deponent spoke then somewhat in the favour of the poor woman that she did nothing then but by authority of the said order, the said Richard Burbage, scornfully and disdainfully playing with this deponent's nose, said that if he [Byshop] dealt in the matter he would beat him also and did challenge the field of him at that time. And the cause why the said Robert Miles kept fast in his hand the said order was for that the said Burbages would have torn the same in pieces if they had had the same in their hands ...’
John Alleyn (6 February and 6 May 1592):
'[In answer to Margaret Brayne:] he hath seen the ... complainant with one Miles come divers times to the said Theatre and hath desired the said defendants [James and Cuthbert Burbage] that, according to the said arbitrament and order of the Chancery [i.e. the arbitrament of 1578 and order of 13 November 1590], she might take, receive and enjoy her moiety of the said profits. And the said defendants and one other of the said James Burbage's sons, called Richard, did rail upon the complainant and the said Miles and with violence drove them out, saying that she should have no moiety there. And then this deponent, being there, did, as a servant, wish the said Burbage to have a conscience in the matter, saying unto him that he himself knew that the woman had a right in the same by her husband, and it was her husband's wealth that built the Theatre, as everybody knoweth. And he then did answer: 'Hang her, whore', quoth he, 'she getteth nothing here. Let her win it at the common law and bring the sheriff with her to put her in possession,' and then he would tell her more of his mind.
Then this deponent [Alleyn] told him that though he overreached her husband, being but a plain and simple man, 'yet she, being enforced to seek remedy against you, hath the Chancery, being the highest court and a court of conscience, on her side and hath an order out of the same to have her moiety thereof'. 'Conscience', quoth he, 'God's blood, what do you tell me of conscience or orders.' 'No,' quoth this deponent, 'remember yourself well, for if my Lord Chancellor make an order against you, you were best to obey it, othewise it will prove a contempt and then you shall purchase my Lord Chancellor's displeasure.' And he made answer that he cared not for any contempt, saying that if there were twenty contempts and as many injunctions he would withstand them all before he would lose his possession.
And [he] further saith that when this deponent, about eight days after, came to him for certain money which he detained from this deponent and his fellows of some of the divident money between him and them growing also by the use of the said Theatre, he denied to pay the same, he, this deponent, told him that belike he meant to deal with them as he did with the poor widow, meaning the now complainant, wishing him he would not do so, for if he did they would complain to their lord and master, the Lord Admiral. And then he in a rage, little reverencing his honour and estate, said by a great oath that he cared not for three of the best lords of them all.
And [he] further saith that at the time when the complainant and the said Miles required (as is beforesaid) her moiety of the said Theatre and premises, this deponent found the foresaid Richard Burbage, the youngest son of the said James Burbage, there with a broom staff in his hand, of whom when this deponent asked what stir was there, he answered in laughing phrase how they come for a moiety, 'but', quoth he (holding up the said broom's staff), 'I have, I think, delivered him a moiety with this and sent them packing'. And then this deponent said unto him and his father that the said Miles might have an action against the said Richard. 'Tush,' quoth the father, 'no, I warrant you, but where my son hath now beat him hence, my sons, if they will be ruled by me, shall at their next coming provide charged pistols with powder and hemp seed to shoot them in the legs.' But to his remembrance he saw not Cuthbert, the other defendent, there.
[In answer to the Burbages:] And [he] saith that the words mentioned in his former examination ... spoken by the said James Burbage, viz. 'Conscience? God's blood, what tell you me of conscience or orders', that he cared not for any contempt, and if there were twenty contempts and as many injunctions he would withstand and break them all before he would lose his possession, were uttered within the Theatre yard when the complainant and the said Miles came to desire him to perform the said arbitrament and order, which he thinketh to be about a year past, in the hearing of one Nicholas Byshop, this deponent, and others. And the other words spoken by him… viz., 'I care not for three of the best lords of them all,' were uttered by him in the attiring-house, or place where the players make them ready, about seven days next after, in the hearing of one James Tunstall, this deponent, and others.’
Ralph Miles (10 February and 26 April 1592):
'[In answer to Margaret Brayne:] he doth know there was such an order [of 13 November] ... the which Order the said complainant [Margaret Brayne], being very willing to perform the same, went divers times with sundry her friends and neighbours to the now defendants [James and Cuthbert Burbage] and demanded of them her moiety of the rents and profits of the said Theatre and premises according [to] the said order. And they did utterly deny so to do in the hearing of this deponent and others of credit and reputation, the said James Burbage saying he would obey no such order, nor cared not for them, reviling the complainant with terms of 'murdering whore' and otherwise and charged her and her company to get them off his ground or else he would set them off with no ease. At which time, Cuthbert Burbage, the other defendant, came to them and then the said complainant demanded of him the performance of the said order, and he made answer he would not stand to any such order and willed her and her company to get them thence, saying 'thou hast nothing to do here', and so with much threatening and menacing, she and her company went away.
[In answer to the Burbages:] at such time this deponent and others went at the complainant's request with her to the now defendants to require them to perform the said award as by an order made in the Chancery they were ordered to do, the said James Burbage's wife charged them to go out of her ground or else she would make her son break their knaves' heads and so hotly railed at them. And then the said James Burbage, her husband, looking out at a window upon them, called the complainant 'murdering whore', and this deponent and the others 'villains, rascals, and knaves'. And then the complainant said unto him that she was come to require of him the performance of the award [i.e. the arbitrament of 1578], as the Court of Chancery had ordered to do. And then he cried unto her, 'go, go, a cart, a cart for you. I will obey no such order, nor care I not for any such orders, and, therefore, it were best for you and your companions to be packing betimes, for if my son come he will thump you hence.' With that, in manner, his son [Cuthbert] came home, of whom the complainant did also require the performance of the said award, according to the said order of the Chancery, and then he in very hot sort bid them get them hence or else he would set them forwards, saying 'I care for no such order. The Chancery shall not give away what I have paid for. Neither shalt thou have anything to do here while I live, get what orders thou canst.' And so with great and horrible oaths uttered by both him and his father that they would do this and that, the complainant and her company went their ways.’
The following document relates to work on other buildings on the site. Bricklayer Hudson said the following on 29 February 1592:
'That he was one amongst others that in July last past  did survey and view the new buildings and the reparations done by the now defendants [the Burbages], or one of them, in and upon certain decayed houses and places in Holywell, near Shoreditch without Bishopsgate, London. And [he] saith that in their judgement they could reckon it to no less than £240 [Ellam said '£240 or £230'] or thereabouts, as by a memorandum under their hands and marks written in the defendants' book of the same may more plainly appear.’
Further evidence of work and repair on the site from carpenter Bryan Ellam (25 February 1592):
'Saith that the said defendants [James and Cuthbert Burbage], or one of them, have bestowed in further building and reparations of the Theatre there within this six or seven weeks past to the value of £30 or £40, as this deponent doth estimate the same.’
Further evidence of work and repair on the site from Richard Hudson (25 February 1592):
'Saith that the said defendants, or one of them, hath since that view [in July 1591] bestowed in further building and repairing of the Theatre or playhouse there, wherein he, this deponent, was one of the workmen, to the value of £30 or thereabouts.'
In April 1593 Margaret Brayne died. She left her child and the ongoing lawsuits to Robert Miles:
'I, Margaret Brayne of the parish of St Mary Matfellon alias Whitechapel, ... being whole in mind, sick of body, but of a perfect memory,… do make and ordain this ... my last will and testament in manner and form following ... Item: I give and bequeath unto Robert Miles, citizen and goldsmith of London, in consideration that I am greatly indebted unto him in such great sum and sums of money that all the goods I have in the whole world will nothing countervail the same, all such interest, right, property, claim and demand whatsoever which I, the said Margaret Brayne have, should, or ought to have of, in, or to the one moiety, or half part, of the playhouse commonly called the Theatre, near Holywell in the county of Middlesex. And also my mind and will is that the said Robert Miles shall have all the benefit, profit and commodity thereof ... coming or growing or which by any means may descend or come by virtue of the said moiety, or half part, of the Theatre to me in right belonging as aforesaid. Item: I give and bequeath unto the said Robert Miles all ... manner of bonds, specialties, debts, sum and sums of money whatsoever as I now have or which by virtue of any such bonds or specialties may be gotten, won or obtained, or which now and hereafter shall grow due and payable. And lastly, I give and bequeath unto the said Robert Miles all and singular my goods, chattels, household stuff and other of my goods whatsoever. Item: my will is, in consideration partly of the premises [i.e the foregoing], that the said Robert Miles shall keep, educate and bring up Katharine Brayne, my husband's daughter, of whom I hope he will be good and have an honest care for her preferment. And I make and ordain the said Robert Miles sole executor of this my said testament and last will ...’
Robert Miles did indeed continue the lawsuits (11 February 1594):
'Forasmuch as this court was the present day informed by Mr Scott, being of the plaintiffs [i.e. Robert Miles'] counsel, that the matter wherein Margaret Brayne was lately plaintiff against the above-named defendants [the Burbages], standing heretofore referred unto Mr Dr Stanhope and Mr Dr Legg, two of the masters of the court, and they being ready to make their report, the said Margaret, then plaintiff, died. Since which time the said Robert Miles hath exhibited a bill and served process upon the defendants to answer the same to revive the said former suit and the orders of referment made thereupon in the same state it stood at the time of the former plaintiff's death. It is, therefore, ordered that the said masters of this court shall, at the now plaintiff's suit, take the like consideration as they were to do of the matters to them before referred at the former plaintiff's suit and make such report thereof as, by the former orders made in that behalf, they were appointed to do ...’
Later, Chancery decided to merge the lawsuits (14 March 1595):
'Forasmuch as the right honourable Sir John Pickering, knight, lord keeper of the great seal of England, was this present day informed on the plaintiffs [James Burbage's] behalf by Mr Borne, being of his counsel, that the said parties [Burbage and Robert Miles] have cross bills, the one against the other, and that witnesses in the said several causes are examined and publication at one time by consent of the said parties was long since had, and that the cause wherein the said Burbage is plaintiff for the most part concerneth the other, and that the cause wherein the said Miles is plaintiff is appointed to be heard at the Rolls chapel on Monday, the 28th day of May next , it was therefore most humbly desired by the said Mr Borne, for that the matter wherein the said Burbage is plaintiff against the said Miles was first commenced and is also ready for the hearing as aforesaid, might be also heard together with the other cause wherein the said Miles is plaintiff on the 28th day of May next at the said chapel of the Rolls. It is ordered by his lordship that if the said Miles shall not by the second return [day - i.e. 5th May] of the next term show unto this court good cause to the contrary, then the said cause wherein the said James Burbage is plaintiff is set down to be heard on the said 28th day of May without further motion to be made on that behalf, and the said Miles or his attorney is to be warned hereof.’
The following document shows that Robert Miles lost the case he had pursued against James Burbage (28 May 1595):
'The matter in question between the said parties [Robert Miles and the Burbages], touching the moiety of the lease of the Theatre in the bill mentioned and the profits thereof, coming this present day to be heard in the presence of counsel learned on both parts, it was alleged by the defendants' [the Burbages'] counsel that the said plaintiff Miles had not only a bond of £400 made unto him by the defendants for the assigning over of the same moiety unto him, whereupon a demurrer is now joined at the common law, but also another bond of £200 made for the performance of an arbitrament made between the said parties, which the said plaintiff pretendeth to be also forfeited by the defendant. And, therefore, as the said counsel alleged, the plaintiff hath no need of the aid of this court for the said lease and profits. It is thereupon thought fit and so ordered by this court that the said plaintiff shall proceed at the common law against the said defendant upon the said bonds to the end it may be seen whether the plaintiff can relieve himself upon the said bonds or not. But if it fall out that the plaintiff cannot be relieved upon the said bonds, then the matter shall receive a speedy hearing in this court, and such order shall be given thereupon as the equity of the cause shall require. And in the meantime the matter is retained in this court.’
The following document proves that an earlier version of Hamlet was being put on at the Theatre, around 1595-1596. The evidence is from Lodge's Wits Miserie:
'Pale as the vizard of the ghost which cried so miserably at the Theatre, like an oyster wife, "Hamlet, revenge."'
A series of documents have survived that relate to the Burbages, Giles Allen and the lease on the playhouse.
A bill from Cuthbert Burbage (26 January 1600):
'[Cuthbert Burbage said that he:] did often require the said Allen and Sarah, his wife, to make unto him the said new lease of the premises, according to the agreement in the said indenture, which the said Giles Allen would not deny but for some causes which he feigned did defer the same from time to time but yet gave hope to your subject and affirmed that he would make him such a lease . . .
But after the said first term of one and twenty years ended [on 25 March 1597], the said Allen hath suffered your subject to continue in possession of the premises for divers years and hath accepted the rent reserved by the said indenture from your subject.’
Allen's response (4 February 1600):
'A little before the death of the said James Burbage [in February 1597], through great labour and entreaty of the said James Burbage and the complainant [Cuthbert Burbage] and other their friends, who often moved the defendant [Allen] in their behalf, and the said James Burbage pretending and making show unto the defendant with many fair speeches and protestations that he would thereafter duly pay his rent and repair the houses and buildings and perform all his covenants, as a good and an honest tenant ought to do, and that he would likewise pay the said arrearages of £30: the defendant and the said James Burbage grew to a new agreement that the said James Burbage should have a new lease of the premises contained in the former lease for the term of one and twenty years, to begin after the end and expiration of the former lease, for the yearly rent of £24 . . .
And it was likewise further agreed between them ... that the said Theatre should continue for a playing place for the space of five years only after the expiration of the first term [i.e. until 1602], and not longer, by reason that the defendant saw that many inconveniences and abuses did grow thereby, and that after the said five years ended it should be converted by the said James Burbage and the complainant, or one of them, to some other use, and be employed ... whereby the benefit and profit thereof, after the term of the said James Burbage ended, should remain and be unto the defendant.
But before that agreement was perfected (by reason that the said James Burbage had not procured such security for the performance of his covenants as the defendant did require), the said James Burbage died. After whose death the complainant did again often move and entreat the defendant that he might have a new lease of the premises according to the former agreement made between the said James Burbage, the father of the complainant, and the defendant, the said complainant promising the defendant the payment of the said £30 rent which was behind in the time of the complainant's father, and that he would put in good security to the defendant for the payment of the rent during the term and the repairing of the houses and the performance of all other covenants on his part to be performed, touching which matter there was oftentimes communication had between the complainant and the defendant, who, for his part, was contented to have made the said lease unto the complainant, who likewise seemed very willing to have it in such manner and under such covenants as were formerly agreed upon between the defendant and the said James Burbage. And so the matter was at the last concluded between the complainant and the defendant, and (as the defendant remembreth) a lease was drawn accordingly by the complainant, which the defendant thinketh he can show forth unto this honourable court. And yet, notwithstanding, the complainant found means by colourable shifts and delays to defer the accomplishing and execution thereof from time to time.
Howbeit, the defendant, hoping that the complainant had meant honestly and faithfully, and to have taken the lease according to their agreement, ... was contented to suffer the complainant to enjoy the premises after the first lease expired for the space of a year or two, paying only the old rent of £14.’
Further discussion on the matter (5 June 1600):
'[Allen asked if there were not two different proposals.] Was there not an agreement ... to this effect: that the defendant [Allen] should make a new lease to the complainant [Cuthbert Burbage] of the houses and grounds which were formerly demised unto James Burbage ... for one and twenty years from and after the expiration of that former lease, and that the complainant should pay yearly for the same the sum of £24? And ... was it not likewise agreed ... that the Theatre there erected should continue for a playing place by the space of five years only? ... And did not the complainant, upon that agreement, promise the defendant to pay him ... £30 which was due to the defendant for rent, and to put the houses and buildings in good reparations? And how long is it sithence such agreement was made?
[And] was it agreed between the defendent and the complainant that the complainant should take a new lease of the said houses and grounds for the term of ten years and that the complainant should give ... £100 for the said lease, and £24 rent yearly? ... And at what time [was] any such agreement made?’
A response from lawyer Robert Vigerous (14 August 1600):
'[He assisted both sides in the negotiations.] The said complainant [Cuthbert Burbage] together with James Burbage, his father, and the said defendant [Allen] were in communication about the making and taking of a new lease of the houses and grounds and Theatre mentioned in this interrogatory. And at the last it was concluded and agreed between all the said parties that the defendant should make a new lease of the same to the said complainant for the term of ten years for and under the yearly rent of £24, which (as this deponent remembreth) was an increase of £10 more than was reserved in a former lease heretofore made to the said James and then expired or near to be then expired. And that at the ensealing of the said new lease so to be had the said James and Cuthbert, the complainant, or one of them, should pay unto the defendant certain arrearages of rent reserved upon the said former lease amounting to the sum (as this deponent verily thinketh) of £30.
All which this deponent knoweth to be true for that he was of counsel with the said parties in the said agreement, and by all their mutual consents was appointed and especially named to draw, pen and write the said new lease according to their said agreement. And this examinant saith that he did write a draft ... lease to be made of the premises accordingly, which, being done, he delivered the same into the hands of the said complainant when he came to this deponent's chamber to demand and see the same, and paid him his fees with promises of further reward for his pains about the effecting of the same new lease to be made, which should be a satin doublet. Howbeit, he never had it. But whether the complainant should give ... £100 for the same lease or whether the said lease took effect, or what other agreement passed between the said complainant and defendant, this deponent, by reason of his discontinuance from the Temple, knoweth not. But he saith that he hath seen a draft ... lease to be made of the same premises wherein it is inserted that ... £100 should be paid by the complainant to the defendant, which draft (as the defendant informeth this deponent) was made or caused to be made by the complainant and by him brought and delivered to the defendant at his house in the country.
And this deponent, being asked by the said commissioners [i.e. examiners] if he knew upon what consideration the said £100 was inserted, said that he remembreth not the consideration mentioned in the said draft. But he saith upon the first communication had between the said complainant and defendant and the said James before this deponent, as is aforesaid, the defendant did demand recompense at the hands of the said James, for that the defendant said the said James had not bestowed £200 in the building or repairing of the said houses according to a covenant mentioned in the said former lease, nor half so much, or words to the like effect. But whether the said £100 was inserted upon that consideration or no, this deponent knoweth not.’
Thomas Nevill (10 October 1600):
'There was an agreement had between them, the said complainant [Cuthbert Burbage] and the said defendant [Allen], for the houses and grounds with the Theatre, which were formerly demised unto James Burbage, the father of the said complainant, with an increasing of the rent from £14 by the year unto £24 by the year. Which lease should begin at the expiration of the old lease made unto the said complainant's father and should continue for the space of one and twenty years.
And this deponent further saith that the said defendant was at the first very unwilling that the said Theatre should continue one day longer for a playing place, yet, nevertheless, at the last he yielded that it should continue for a playing place for certain years, and that the said defendant did agree that the said complainant should after those years expired convert the said Theatre to his best benefit for the residue of the said term then to come, and that afterward it should remain to the only use of the defendant. And further this deponent saith that the said James Burbage, the father, did acknowledge the sum of £30 mentioned in this interrogatory to be due unto the said defendant for rent then behind and unpaid, and that the complainant, Cuthbert Burbage, did oftentimes sithence promise payment, of the said sum of £30 at the ensealing of the new lease. And he further saith that the said agreement was made between the said complainant and the defendant now two years sithence or thereabouts, at Michaelmas term now next coming [i.e. in 1598].’
Henry Johnson (26 April 1600):
'[He was another of Allen's witnesses, one of his tenants, and a silk weaver.] About Michaelmas term last past was twelvemonth , the complainant [Cuthbert Burbage] ... and he, this deponent, met at the defendant's [Allen's] lodging, with the defendant, at the sign of the George in Shoreditch,… at which time there passed between the complainant and the defendant divers speeches touching a new lease of the premises to be made by the defendant to the complainant for one and twenty years. Which speech and communication was to this or like effect: viz., the complainant demanded of the defendant a lease of the houses and grounds for one and twenty years to commence after the expiration of the lease which had been before made unto his father, James Burbage; and that the Theatre, which then was upon part of the said grounds, might for this term of one and twenty years remain for place to play in, as it was wont; and in consideration thereof, he, the complainant, then promised to give the defendant £24 per annum for a yearly rent for the premises and would take upon him[self] to pay the defendant the sum of £30 which the defendant claimed for arrearages of rent due in James Burbage his lifetime, and would undertake to put the mansion-houses [i.e. the major buildings other than the Theatre] upon the premises in reparation.
And the defendant was contented and did accept of the complainant's proffer in all, except his demand for the Theatre to stand as a playhouse, which he misliked ... Whereupon the complainant requested the defendant that he would suffer it to stand for a playhouse but the five first years of the one and twenty years, and afterwards he would convert the same to some other, better use, viz., into tenements or repairing the other premises demised unto him, and afterwards leave the same upon the premises for the defendant's benefit, which the defendant then agreed unto, and then demanded of the complainant sufficient security for the payment of his, the complainant's, rent during his term of one and twenty years. Whereupon he [the complainant] made proffer unto the defendant of his brother, Richard Burbage, with whom the defendant misliked, and so thereupon they left off and parted.
[Johnson added on 23 May 1600:] He knoweth that the complainant [Cuthbert Burbage] hath many times laboured and entreated the defendant [Allen] to make him a new lease of the premises in question. For this deponent saith that many times when the defendant hath come up to London to receive his rents, he, this deponent, hath been with him paying him certain rent and then he hath seen the plaintiff with his landlord [i.e. Allen] paying his rent likewise. And then finding opportunity, the plaintiff would be entreating the defendant to make him a new lease of the premises in question. And [he] saith it is at least three years since he, this deponent, first heard the plaintiff labour and entreat the defendant for a new lease, and that it was at the sign of the George in Shoreditch that the defendant lay when he came to London to receive his rents, and there the plaintiff solicited him for a new lease.’
John Goburne (23 May 1600):
'[He was another of Allen's witnesses, one of his tenants, and a merchant tailor.] He never heard that the said James Burbage and the defendant [Allen] had at any time any speeches together touching the continuance of the Theatre for a playing house for the space of but five years only after the expiration of his old lease. But the defendant would fain have had the said James Burbage to have converted the said Theatre to some other use upon the premises demised unto him, which the said James Burbage would not agree unto but told the defendant that he would increase his rent £10 per annum if he might have his lease renewed for one and twenty years more after the expiration of the old lease, and the Theatre to continue during that time for a playing-house ... And ... after the new lease which he then entreated for were expired he or the now complainant [Cuthbert Burgage] would convert the said Theatre upon the premises to some other use for the benefit as well of the defendant as for the lessee then in possession. But upon all that conference nothing was absolutely agreed upon because the defendant would not consent to suffer the same Theatre to continue so long for a playhouse.’
A document from April or May 1597 shows that Robert Miles then sued Cuthbert Burbage and Giles Allen:
'Robert Miles ... executor of the last will and testament of Margaret Brayne, deceased, executrix of the last will and testament of John Brayne, her husband, also deceased, [complains] that whereas one Giles Allen, gentleman, and Sarah, his wife, . . . for a fine of £20 (whereof one-half was paid by the said John Brayne and the other by one James Burbage, deceased) by their deed indented demised and leased to ... James Burbage in ... [I576] divers messuages and tenements and vacant pieces of ground in Holywell . . . for the term of twenty and one years, rendering the yearly rent of £14, in which demise or lease the said James did covenant to bestow £200 in buildings in and upon the demised premises. . .
The said Giles and Sarah did covenant to and with the said James and his assigns that he, the said Giles and Sarah and their heirs and assigns, within ten years following the beginning of the said demise, would make a new demise or lease of the premises to the said James or his assigns for one and twenty years to begin at the making of the said demise, rendering the like rent as aforesaid and upon like covenants as the former demise was made, except as in the said covenants is excepted, for the making of which said lease the said Giles also became bound to the said James in a sum of money unknown to the said Robert.
And also the said Giles and Sarah did further covenant to and with the said James and his assigns that, at any time before the end of the first lease aforesaid, the said James and his assigns might have taken down and carried away all such buildings as should be builded by the said James and his assigns in a garden and void ground demised by the said former lease, except such buildings as should be built by the expense of the said £200.
And whereas also the said James, being not able to build according to the agreement made and to his desire upon the demised premises, did, both before and after the said first demise and lease so taken, agree and promise to and with the said John Brayne that the said John and his executors should have the benefit and profits both of the first demise and likewise of the second demise which was to be made, and also of the covenant and covenants aforesaid and of all other covenants and bonds by the said Giles and Sarah or any of them, for or concerning the premises to the intent and in consideration that the said John should disburse a moiety both of the said £200 and of all other charges which should arise and grow in buildings or otherwise concerning the premises.
Now, . . . since the first demise and agreement as aforesaid, the said John Brayne did join with the said James in the building aforesaid and did expend thereupon greater sums than the said James, that is to say at least £500 or £600, after which time the said John did for a time perceive [i.e. receive] and take the profits of the moiety of the said demised premises by the assent of the said James, as also by an arbitrament between them made by Richard Turner and John Hill, until the said James did mortgage the said lease unto one John Hyde for £125 or thereabouts and did forfeit the said lease unto the said John Hyde for non-payment of £30 only, all the which money, £30 excepted, was paid by the said John Brayne unto the said John Hyde, who always made faithful promise that upon the payment of the said £30, and some consideration beside for the forbearing of the money, he would assure the lease back again unto the said John Brayne and the said James Burbage and their assigns, all the which he was moved unto by the reason that he, the said John Hyde, did know of the said agreement and joint expenses and perception of the profits by the said John and James before the said mortgage. After the which time, the said Hyde, by covin of the said James and one Cuthbert Burbage, his son, contrary to his faithful promise that he would assure the said lease unto the said John Brayne and to the said James Burbage, not any way taking advantage of the said mortgage, did convey the said lease, upon payment of the said £30, to the said Cuthbert only to defeat the said agreement, which said conveyance was some seven years ago or thereabout.
Since which time the said Cuthbert hath taken all the profits of the said lease. The which said lease is now expired, and the said James Burbage is deceased. And the said Brayne, being indebted in the sum of £500 to this complainant, made his wife, Margaret, his executrix and died, which Margaret, also remaining in the debt as aforesaid to your said subject [i.e. Miles], made him to that end her executor and died. Sithence which time the said Robert as executor to the said Margaret, the executrix of the said John Brayne, hath often required the said Cuthbert and Giles and Sarah to permit and suffer him to take down such buildings as by the covenant aforesaid were to be taken down and to allow this complainant the moiety of the timber and other things, or the value of the moiety thereof. And also this complainant hath often required the said Giles and Sarah, according to their covenant aforesaid, to make to him, as executor of Margaret Brayne aforesaid, executrix of the said John, a lease of the moiety of the premises before demised, according to the covenant and agreements aforesaid. And also, although the said Robert hath required the said Cuthbert to allow him the arrearages of the moiety of the profits of the demised premises aforesaid received by the said Cuthbert sithence the conveyance thereof to him made by John Hyde aforesaid, yet that to do they utterly deny, contrary to all equity and good conscience.
And whereas also the said James had taken all the profits of the said demised premises, contrary to the trust aforesaid, until the assignment made by Hyde as aforesaid to the said Cuthbert; and because he was otherwise indebted to the said Brayne in obligations in £600, and sithence died intestate, and one Ellen Burbage hath taken administration of the goods of the said James and hath gotten goods and chattels of his into her hands amounting to £1,000 [and] refuseth to pay and allow to this complainant the arrearages of the moiety of the profits taken by the said James before the said assignment and also to pay the said other debts, alleging she hath no goods in her hands unadministrated: whereby your majesty's poor subject [i.e. Miles] is likely every way to be defeated except he may have some relief ... in this honourable court.
And forasmuch also as your majesty's poor subject is altogether without his remedy at the common law for the recovery of the moiety of the profits of the Theatre and other the lands and tenements so wrongfully taken by the said James and Cuthbert Burbage, by reason that the said John Brayne had no assignment made unto him of the said lease so taken by the said James Burbage of the said Giles Allen, although it were taken as well to the use of the said John Brayne as unto the use of the said James, and so likewise of the said benefit of all the covenants contained in the said lease. And forasmuch also as your majesty's poor subject hath no remedy by the common law to compel the said Giles Allen and the said Sarah to make a new lease according to his covenants contained in the said lease for a longer time, although he is interested in all equity in the same as executor unto the said Margaret Brayne, the executrix of the said John Brayne, who bestowed all the cost, in effect, upon the buildings and stood upon the faithful promise of the said James and Cuthbert to have a moiety of the said lease to be assigned.
And forasmuch also as your majesty's poor subject is altogether without his remedy upon the said bonds of £600 as aforesaid, they being made void by the cunning practices of the said James Burbage, Cuthbert Burbage, and the said Ellen by attachments and other device. And forasmuch also as the said Giles Allen and Sarah have been required to make a lease of the moiety of the premises as aforesaid, who hath refused so to do.
In tender consideration whereof, may it please your majesty, the premises considered, to grant unto your poor subject your most gracious writ of privy seal to be directed unto the said Ellen Burbage, Giles Allen and Sarah, his wife, and Cuthbert Burbage, commanding them personally to appear before your majesty's council of your highness' Court of Requests ... there to answer the premises and also to abide such order and direction as shall seem to stand with good conscience.’
Furthermore, we have the following court order from 9 May 1597:
'Robert Miles, complainant; Cuthbert Burbage and others, defendants. Upon the motion of Mr Walter, being of counsel with the said defendants, it is ordered that the attorneys on both sides confer [i.e. compare] the bill preferred by the plaintiff into her majesty's high Court of Chancery against the said defendants together with his bill here depending in this court. And if upon report thereof to be made it shall appear that they both contain one matter in substance and effect, then the same matter shall be from hence dismissed.’
A further court order from 27 May 1597:
'In the cause at the suit of Robert Miles, complainant, against Giles Allen and others, defendants, Mr Scott, being of counsel with the said complainant, hath this day informed ... this court that the persons named in the bill which formerly depended in Chancery concerning this cause and in the bill now depending in this court concerning the same cause are not all one but several and distinct. Therefore upon motion of Mr Scott aforesaid it is ordered (notwithstanding any former order) that this cause shall be retained in this court to be heard in the same, and that the said defendants shall make their full and perfect answers upon their oaths unto the said complainant's bill in this court without delay, at their perils. [But nothing more is heard of the lawsuit.]’
One surviving document shows us that the Theatre had stopped playing by 8 September 1598 (from Guilpin's Skialetheia):
‘but see yonder,
One, like the unfrequented Theatre,
Walks in dark silence and vast solitude.'
A series of documents show us that the Burbages had the Theatre taken down so that they could reuse parts for a new playhouse (eventually the Globe on Bankside).
Firstly, from about January 1599 we have the following from Allen (King's Bench):
'On the twentieth day of January ... , with force and weapons, he [Peter Street] broke and entered Giles' yard called the inner courtyard, parcel of the former priory of Holywell now dissolved ... And going and coming he trampled underfoot and consumed the same Giles' grass then growing in the said yard, to the value of 40s. And then and there he pulled apart, tore asunder, seized and took away a certain structure of the same Giles, framed and erected in the same place, called the Theatre, to the value of £700. And he caused other enormities against the peace of the said lady, the Queen, to the same Giles' damage of £800.’
Allen's response in Requests has also survived (4 February 1600):
'But now by the dealing of the complainant [Cuthbert Burbage] it appeareth that he never in truth meant to take the lease as he pretended but only sought to take occasion when he might privily, and for best advantage, pull down the said Theatre, which about the feast of the nativity of our Lord God in the [one and] fortieth year of her majesty's reign [1598-9] he hath caused to be done without the privity or consent of the defendant, he being then in the country.' [Allen lived at Hazeleigh in Essex.]
Allen also stated the following in Star Chamber (23 November 1601):
'The said Cuthbert Burbage ... unlawfully combining and confederating himself with the said Richard Burbage and one Peter Street, William Smyth [a friend of the Burbages] and divers other persons to the number of twelve to your subject [Allen] unknown, did about the eight and twentieth day of December ...  riotously assemble themselves together and then and there armed themselves with divers and many unlawful and offensive weapons, as namely swords, daggers, bills, axes and such like. And so armed, [they] did then repair unto the said Theatre and then and there, armed as aforesaid, in very riotous, outrageous and forcible manner, and contrary to the laws of your highness's realm, attempted to pull down the said Theatre.
Whereupon divers of your subject's servants and farmers [tenants] then going about in peaceable manner to procure them to desist from that their unlawful enterprise, they, the said riotous persons aforesaid, notwithstanding,… with great violence, not only then and there forcibly and riotously resisting your subject's servants and farmers but also then and there pulling, breaking and throwing down the said Theatre in very outrageous, violent and riotous sort to the great disturbance and terrifying not only of your subject's said servants and farmers but of divers others ... there near inhabiting. And having so done [they] did then, also in most forcible and riotous manner, take and carry away from thence all the wood and timber thereof unto the Bankside ... and there erected a new playhouse with the said timber and wood.’
Cuthbert Burbage (Requests, 26 January 1600):
'Whereupon of late your said subject having occasion to use certain timber and other stuff which were employed in making and erecting the said Theatre upon the premises (being the chiefest profit that your subject hoped for in the bargain thereof [i.e. a new lease]) did to that purpose, by the consent and appointment of Ellen Burbage, administratrix of the goods and chattels of the said James Burbage, take down and carry away part of the said new building ... and the same did employ to other uses.’
Allen's tenant, Henry Johnson (Requests, 26 April 1600):
'This deponent [Johnson] saith he went to the Theatre when it was in pulling down to charge the workmen and the complainant [Cuthbert Burbage] not to pull the same down for that it was not according to any agreement or communication of agreement in his presence. And being there, he, this deponent, did perceive that the same Theatre was appointed to be so pulled down by the complainant, by his brother (Richard Burbage), and one Thomas [i.e. William] Smyth, and one [Peter] Street, who was head carpenter that gave assistance therein. And when he had so charged them not to pull the same Theatre down, they, the said complainant and Thomas Smyth and Street, the carpenter, told him, this deponent, that they took it down but to set it up upon the premises in another form, and that they had covenanted with the carpenter to that effect, and showed this deponent the decays about the same as it stood there, thereby colouring their deceit. And more he cannot depose, save only that, not withstanding all their speeches, they pulled it down and carried it away.’
Allen's tenant, John Goburne (Requests, 26 April 1600):
'This deponent [Goburne] saith that he heard that the Theatre was in pulling down, and, having a letter of attorney from the defendant [Allen] to forbid them, did repair thither and did find there, at the pulling down of the same, and that commanded and countenanced the same, one Thomas [i.e. William] Smyth, the complainant [Cuthbert Burbage] and Peter Street, the chief carpenter. And the other that were there were labourers and such as wrought for wages, whose names he perfectly remembreth not.’
William Smyth (Requests, 15 May 1600):
'This deponent [Smyth] saith that he knoweth the said complainant's mother [Ellen Burbage] did give her consent that the plaintiff should take down and carry away the timber and stuff employed for the Theatre or playhouse in the bill mentioned, for she was there and did see the doing thereof and liked well of it and did allow thereof.' [She was the ostensible owner of the Theatre.]
Giles Allen then sued the Burbages for trespass (20 January 1599). In response, Cuthbert Burbage countersued Giles Allen (Requests, 26 January 1600).
A Bill of Complaint (Cuthbert Burbage, from 26 January 1600):
'[He went on:] Giles Allen, minding to take advantage of his own wrongful and unconscionable dealing in not making the said new lease, [and] finding the words of the said covenant to be that the said James Burbage, his executors, administrators or assigns might, before the end of the said term of one and twenty years granted by the said indenture (or before the end of the said one and twenty years after by virtue of the said agreement to be granted), take down and carry away the said timber and stuff used for making of the said Theatre, [saith] that, therefore, (in regard your subject [Cuthbert Burbage], trusting to his promises to have a new lease, did not take the same away at the end of the said term of one and twenty years granted by the said indenture and that no new term being granted by the said Allen to the said James Burbage or his assigns by the words of the said covenant) he [Cuthbert Burbage] hath not liberty to take the same away afterwards in strictness of law.
Thereupon, he, the said Giles Allen, hath brought an action of trespass in your majesty's court ... called the ... [King's] Bench against Peter Street, your subject's servant, who by your subject's direction and commandment did enter upon the premises and take down the said building, [Allen] minding most unconscionably to recover the value of the said building in damages, which must ... light upon your said subject if he [Allen] should therein prevail. And there [Allen] doth prosecute the same with all rigour and extremity, which will tend to your subject's great loss and hindrance, except your majesty's favour and aid in such cases used be to him herein extended.
In tender regard whereof, forasmuch as it is against all equity and conscience that the said Giles Allen should, contrary to his covenant and agreement aforesaid, through his own wrong and breach of covenant, hinder your subject to take the benefit of the said agreement in the foresaid indenture expressed to take away the said timber and buildings before the end of the said one and thirty years: and for that your said subject or his servant can minister no perfect plea at the common law in bar of the said action, and yet in all equity and conscience ought to be relieved according to the true meaning [of the agreement]; and the said Giles Allen ought to be stayed of his said suit: may it therefore please your most excellent majesty, the premises considered, to grant unto your said subject your highness's writ of privy seal to be directed to the said Giles Allen, commanding him thereby, at a certain day and under a certain pain therein to be limited, to be and personally to appear before your majesty in your highness's court of Whitehall at Westminster [i.e. Requests], then and there to answer to the premises and to abide such further order and direction therein as to the masters of the said court shall be thought meet and convenient, and also to grant your majesty's most gracious writ of injunction to be directed to all the counsellors, attorneys, solicitors and factors of the said Allen commanding them to cease all proceedings in the said action until the matter in equity (wherein your poor subject humbly prayeth to be relieved) be first heard before the masters of your highness's said court ...’
Giles Allen's response (4 February 1600):
'[He, too, recited the original lease, then:] And further, the defendant [Allen] saith that true it is that the said James Burbage ... did require the said defendant to make him a new lease and did [in 1585] tender unto the defendant a draft of a new lease written and engrossed, as the complainant hath alleged, which lease so tendered the defendant did not make show that he would deliver [i.e. sign] it ... [nor] by subtle devices shift of the finishing thereof, as the complainant most untruly hath alleged. But contrarily the defendant did upon many and very just and reasonable causes and considerations (as he hopeth it shall appear unto this honourable court) utterly refuse to seal and deliver the same. For the plain and true declaration whereof, first the defendant saith that (as he taketh it and as he is by his counsel informed) the draft of the said lease so tendered unto the defendant was in many material points varying and differing from the lease which the defendant and his wife had formerly made to the said James Burbage and, therefore, in respect that the second lease should be made like unto the former and under the like covenants, articles and agreements, and no other, as before is shown, the defendant was in no wise (as he taketh it) either in law or conscience bound to seal the same ...
And further, the defendant saith that such was the bad dealing of the said James Burbage towards the defendant from time to time before the time of the said new lease tendered, and the said James Burbage had been such a troublesome tenant unto the defendant, that there was no cause in conscience to make the defendant to yield to anything in favour of the said James Burbage, further than by the law he might be compelled to do. For first, whereas the said James Burbage was bound to pay unto the defendant the sum of £20 for a fine for the lease formerly made unto him, the said James Burbage neglected the payment thereof at the time appointed and long time after, and hardly could the defendant, after much delay and trouble by suit in law, obtain the same. And further, the said James Burbage continually failed in the payment of this rent and never duly paid the same, whereby the defendant was often driven, to his great trouble, to go about to distrain for the same, and yet could not the defendant that way help himself, for either the door and gates were kept shut that he could not enter to take any distress, or [James Burbage] otherwise the matter so handled that the defendant could not find any sufficient distress to satisfy him for the arrearages thereof. And at the time of the said new lease tendered by the said James Burbage, he, the said James, did then owe unto the defendant £30 for the rent of the said houses and grounds demised unto him, which as yet remaineth unpaid ...
And further, touching the repairing of the houses and buildings which the said James Burbage ought to have repaired and maintained, that was likewise by the said James Burbage much neglected. For whereas amongst the houses and buildings demised to the said James Burbage there was one great tiled timber barn of 80 feet of assize in length and 24 feet of assize in breadth, or very near thereabouts, very substantially built, for the which the defendant had formerly received a rent of good value, the said James Burbage did divide the same into eleven several tenements (as the defendant now remembreth) and did let out the same severally to poor persons for the several rents of 20s by the year to be paid by every tenant, who were and are unable to do any reparations upon them. For such was, and now is, their poverty that, as the defendant is informed, they usually beg in the fields and streets to get money for the payment of their rents, by reason whereof the defendant hath been much blamed, and by the parishioners there very hardly censured that he should be an occasion to bring so many beggars amongst them, to their great trouble and annoyance, which proceeded not from any fault of the defendant, but from the covetous humour of the said James Burbage, who respected more his own commodity than the good report and credit either of the defendant or himself.
And the like evil disposition appeareth to be in the complainant, who since the death of his father hath continued these poor people there, and still doth, and yet, doth in no wise repair the said tenements, whereby they are grown in great decay, and are almost utterly ruinated, and are now by the complainant under-propped with shores to keep them from falling down, instead of repairing and amending the same, as by the covenant of the said James Burbage ought to be done, insomuch that the said poor people have complained unto the defendant that they were so decayed both without and within that they were in fear that they would fall upon their heads, whereby it appeareth that the complainant hath small regard either of the credit or the commodity of the defendant but seeketh only to enrich himself by the rents and other profits which he unconscionably receiveth for the same ...
And the said James Burbage and the complainant, or one of them, have likewise heretofore placed other poor people in other tenements there, which still continue in the same. Which tenements are by reason thereof so decayed that the defendant seeth not how he shall well be answered the old rent of £14 of such tenants as be of ability to pay the same. So that howsoever the complainant hath furnaced [i.e. urged] that by the said £200 supposed to be bestowed by the said James Burbage, his father, that the houses and buildings were greatly amended and bettered (as in truth they ought to have been), yet the defendant taketh it that he shall be able to make it appear unto this honourable court that they are rather impaired and in worse plight for the benefit and profit of the defendant, all things considered, than they were at the time when the said James Burbage first took them. Neither yet in truth had the said James Burbage, at the time of the said second lease tendered, or at any time after (as the defendant hopeth he shall be able to prove to this honourable court), bestowed the said sum of £200, or near thereabouts, for the bettering of the houses and buildings demised. Neither was there any likelihood that the said James Burbage should perform the same within the time limited by the said indentures, the said second lease being tendered but a very short time before the expiration of the said term of ten years within which time the said sum of £200 should have been bestowed, as before is shown. For all which causes the defendant did refuse to seal the said lease, as he thinketh he had just cause, both in law and conscience, so to do ...
But now by the dealing or the complainant it appeareth that he ... only sought to take occasion when he might privily, and for best advantage, pull down the said Theatre, which ... he hath caused to be done without the privity or consent of the defendant, he being then in the country. For the which the said defendant hath brought an action of trespass in her majesty's bench against him [Peter Street] who, by the commandment of the complainant, was the doer thereof, which action the defendant thinketh he had very good and just cause, both in law and conscience, to prosecute. For, first, it appeareth that the liberty which the said James Burbage had by the said first lease to pull down the said Theatre at any time during the term was granted unto him in consideration only of the said sum of £200 to be employed and bestowed by the said James Burbage upon the houses and buildings that were demised unto him, which sum not being by him bestowed accordingly, and other covenants broken, there was no colour (as the defendant taketh it) either in law or conscience for the complainant to take away the same ...
And further, whereas the complainant supposeth that the said James Burbage, his father, did to his great charges erect the said Theatre and thereby pretendeth that there should be the greater cause in equity to relieve him, the complainant, for the same: hereunto the defendant saith that considering the great profit and benefit which the said James Burbage and the complainant in their several times have made thereof, which (as the defendant hath credibly heard) doth amount to the sum of £2,000 at the least, the defendant taketh it they have been very sufficiently recompensed for their charges which they have bestowed upon the said Theatre or upon any other buildings there, had they been much greater than they were.’
The replication of Cuthbert Burbage (27 April 1600):
'[He denied many of Allen's other assertions, then:] And whereas the said defendant [Allen] allegeth in his said answer that the said James Burbage neglected to do reparations upon the said houses and buildings, and that the said James did divide the said barn in the answer specified into eleven several tenements and did let the same severally to poor persons (for the several rents of 20s, by year) who were unable to do reparations upon the same: this complainant thereunto replieth and saith that true it is that the said James Burbage, being possessed, amongst other things, of the said barn by virtue of the lease to him made as aforesaid, which barn stood and lay empty a long time in the hands of ... the said James without yielding any profit or commodity, and the said James, being desirous to convert the same for his benefit, did therefore to his great charges divide the same into several tenements, as, in the bill [i.e. lease] is expressed, was lawful ... for him, the said James, to do (as he, this complainant taketh it), and so much the rather for that he, the said James, was not restrained by his said lease to build or convert any part of the premises to him demised thereby. And this complainant further saith that he ... very well knoweth and can well and sufficiently prove and make manifest to this honourable court that the said James Burbage hath for divers years during the said term bestowed and disbursed in and about the reparations of the same tenements a great sum of money. Without that [i.e. he denies] that the said tenants are so poor that they usually beg in the fields and streets to get money for the payment of their rents, or that that there were any causes the said defendant should be much blamed or hardly censured by the parishioners, or that the said James respected more his own commodity than the good report and credit of the defendant or himself, as in the said answer most slanderously is alleged.
Without that also that he, this complainant, hath not since the death of his said father repaired the said tenements, or that the said tenements are grown in great decay or almost utterly ruinated, or that there is any cause that the said poor people should complain to the said defendant that the said tenements would fall upon their heads as in the said answer is untruly surmised ...
Without that that the said James Burbage had not at the time of the said second lease tendered, or any time after, bestowed the sum of £200 or near thereabouts for the bettering of the houses and buildings demised, or that there was not any likelihood that the said James Burbage should perform the same within the time limited by the said indentures, as in the said answer is also surmised. For this complainant saith and can well and sufficiently prove and make manifest, as well by divers good workmen [as] … other persons, that the said James Burbage before the tendering of the said second lease to the said defendant did bestow and disburse for the bettering of the said houses and buildings above the sum of £200. And, therefore, he, the said defendant, had no just cause to refuse to seal the said lease, as by his said answer he pretendeth ...
And this complainant doth not deny but that he hath pulled down the said Theatre, which this complainant taketh it was lawful for him so to do, being a thing covenanted and permitted in the said former lease to this complainant's said father made as aforesaid.
Without that that ... the said James Burbage or this complainant hath made £2,000 profit and benefit by the said Theatre, as in the said answer is also alleged.’
Two court orders then show that Requests stopped Allen's lawsuit.
Court order (10 April 1600):
'Cuthbert Burbage, gentleman, complainant, against Giles Allen, gentleman, defendant. It is ordered upon the motion of Mr Walter, of counsel with the said complainant, that an injunction (without further motion in that behalf to be made) shall be awarded forth of this court against the said defendant for the stay of his proceedings at the common law in the action of trespass there depending until this court shall take further order to the contrary, if he, the said defendant (having notice of this order in convenient time) shall not upon Thursday next coming [17 April] show good matter in this court in stay thereof.’
Court order (22 April 1600):
'It is ordered that the said complainant (according to the offer of his counsel this day made) shall by or before Monday next coming [28 April] put in a perfect and issuable plea to the defendant's action depending at the common law, or else, in default thereof, shall take no benefit by his suit in this court ... If it shall be put in accordingly, then the defendant's counsel doth consent, and it is so ordered, that he, the said defendant, shall stay his further proceedings at the common law until the matter be heard [in this court].’
Evidence that the quarrel continued between the Burbages and Allen is clear from the following document (11 June 1600):
'[An affidavit of Cuthbert Burbage.] Whereas in the cause at the suit of Cuthbert Burbage, gentleman, plaintiff, against Giles Allen, gentleman, defendant, it was ordered the last day of May last past that the said defendant, his counsellor, attorney and solicitor should surcease and stay and no further proceed in an action of trespass at and by the order of her majesty's common laws and not cause the demurrer there tendered upon the defendant's plea in that suit to be joined up or entered until the hearing of the said cause and other order taken and made to the contrary: the said Cuthbert Burbage maketh oath that he, the said defendant [Allen], hath since the said order, contrary to the effect thereof, caused the said demurrer to be joined up and entered a rule thereupon for this deponent to stand to his plea at and by the order of the common law.’
Furthermore, we have a court order from 11 June 1600:
'Because Giles Allen has defied an order made by the council [i.e. the privy council, which in theory was the Court of Requests] in the cause between Cuthbert Burbage, gentleman, plaintiff, and the aforesaid Giles Allen, defendant, dated 31 May last past: therefore it is now ordered that a writ of attachment be directed to the lieutenant of the county of Essex and also Hugh Barbon, gentleman, to attach the body of the said Giles, returnable immediately, etc.’
Allen is also on record remembering his arrest:
'... Whereupon your subject [Allen] for that supposed contempt was in the vacation time then next following [i.e. summer 1600], by the procurement of the said Cuthbert Burbage and by the confederacy aforesaid, fetched up to London by a pursuivant to his great vexation and trouble (being a man very aged and unfit to travel) and to his excessive charges in his journey and otherwise to his great discredit and disgrace in the country. And your said subject, then by the said pursuivant brought before one of the masters of your highness's said court [of Requests], did (by the said master's order then made) become bound unto the said Cuthbert Burbage in a bond of £200 to appear in the said Court of Requests in the beginning of the term of St Michael [i.e. in October 1600] then next following to answer the said supposed contempt and to stand to the order of the said court upon the hearing of the cause. And ... your said subject ... appeared in the said court accordingly, and the matter aforesaid being opened ... your subject was thereupon by order of that court discharged of the supposed contempt ...'
Evidently, Requests supported Cuthbert Burbage (18 October 1600):
'And ... in the term of St Michael, at the day appointed for the hearing of the said cause [18 October 1600], your subject [Allen] appearing in your highness's said court [of Requests] and having divers witnesses there present to testify viva voce on the behalf of your subject: the said Cuthbert Burbage and the said Richard Burbage, still persisting in their unlawful and malicious courses against your subject, did by the confederacy aforesaid then and there very shamefully and unlawfully revile with many reproachful terms your subject's said witnesses and affirmed that they had formerly testified in the said cause divers untruths and threatened to stab some of your subject's said witnesses because they had testified of the fraudulent deed of gift made by James Burbage to the said Cuthbert Burbage and Richard Burbage as aforesaid. By which their furious and unlawful threats, your subject's witnesses were then so terrified that they durst not testify the truth on the behalf of your subject in the said cause.
And further . . . the said Cuthbert Burbage did very maliciously and corruptly, and contrary to the laws and statutes of your highness's realm, suborn and procure one Richard Hudson of the parish of St Alban in London, carpenter, and Thomas Osborne of the parish of Fenchurch in London, carpenter, to commit very grievous and wilful perjury in the said suit in your highness's Court of Requests in divers material points concerning the said suit: the said Richard Hudson testifiying and deposing in the said suit on the behalf of the said Cuthbert Burbage that he was present at a view and estimate made of the costs bestowed by the aforementioned James Burbage ... upon the houses and tenements demised unto him by your subject, which view was taken the eighteenth day of July ... 1586 by himself and others, and that then it did appear unto them that before that time the said James Burbage had bestowed upon the said houses and tenements the sum of £240; and the said Thomas Osborne in like manner testifying and deposing in the said suit on the behalf of the said Cuthbert Burbage, that he likewise was present at the same view and that it did then appear that within four or five years before that view taken there had been bestowed upon the said houses and tenements by the said James Burbage the sum of £240.
Whereas in truth the said Richard Hudson was not present at any view taken in the year aforesaid, but only at [a] view taken in the three and thirtieth year of your highness's reign [1590-1] as by the deposition of the said Richard Hudson himself heretofore made in your highness's Court of Chancery and there remaining of record it doth evidently appear. Neither had the said James Burbage at the time of the said view supposed to be made the eighteenth day of July ... 1586 bestowed anything near the sum of £240, whereof your subject hopeth he shall be able to make very sufficient proof. By which unlawful practices of the said Cuthbert Burbage your subject did then lose his said cause.’
However, Giles Allen filed two further lawsuits against Cuthbert Burbage (one in early 1601 and one on 23 November 1601). Burbage then filed demurrers and lawyer Francis Bacon decided this was reasonable, stating 'that the said [i.e. Allen's] bill is very uncertain and insufficient, and that no further answer needeth to be made thereto'. Allen was later arrested for contempt, but then, other than further legal questions between Allen and a certain Richard Lane, nothing more is heard of the legal dispute in the surviving records.
The legal documents quoted above are available in English Professional Theatre, 1530-1660, edited by Glynne Wickham, Herbert Berry and William Ingram (Cambridge University Press, 2000), pp. 333-87.