"Shakespeare's Legal Knowledge" – Part 6

The dramatist evidently followed the old Italian writer very closely, as may be seen by a comparison of the following passages. Shylock stipulates for

Ser Giovanni’s words are: "che’l Giudeo gli potesse levare una libra di carne d’addosso di qualumque luogo é volesse."

In the Italian story we have the Jew, the bond, the pound of flesh, the lady ("of Belmonte") doctor of laws, the episode of the ring, etc. etc., with all of which Shakespeare has made us familiar. I think the reader may be interested in the following passage which I take from Mr. W. G. Waters’s translation:

"When the time set forth in the bond had expired the Jew caused Messer Ansaldo to be seized, and then he declared he meant to cut away from his debtor the pound of flesh. But Messer Ansaldo begged him to let him live a few days longer, so that in case Giannetto should return he might at least see his son once more. The Jew replied that he was willing to grant this favour, as far as the respite was concerned, but that be was determined to have his pound of flesh according to his agreement, though a hundred Giannettos should come; and Messer Ansaldo declared he was content. All the people of Venice were talking of this matter, everyone being grieved thereanent, and divers traders made a partnership together to pay the money, but the Jew would not take it, being minded rather to do this bloody deed, so that he might boast that he had slain the chief of the Christian Merchants. Now it happened that, after Messer Giannetto set forth eagerly for Venice, his wife followed immediately behind him clad in legal garb and taking two servants with her. When Messer Giannetto had come to Venice he went to the Jew’s [92] house, and having joyfully embraced Messer Ansaldo, he next turned to the Jew, and said he was ready to pay the money that was due and as much more as he cared to demand. But the Jew made answer that he wanted not the money, since it had not been paid in due time, but that he desired to cut his pound of flesh from Ansaldo. Over this matter there arose great debate, and everyone condemned the Jew; but, seeing that equitable law ruled in Venice and that the Jew’s contract was fully set forth and in customary form no one could deny him his rights; all they could do was to entreat his mercy. On this account all the Venetian Merchants came there to entreat the Jew, but he grew harder than before, and then Messer Giannetto offered to give him twenty thousand, but he would not take them; then he advanced his offer to thirty, then forty, then fifty, and finally to a hundred thousand ducats. Then the Jew said, ‘See how this thing stands. If you were to offer me more ducats than the whole City of Venice is worth, I would not take them, I would rather have what this bond says is my due.’ And while this dispute was going on there arrived in Venice the lady of Belmonte, clad as a doctor of laws. She took lodging at an inn, the host of which inquired of one of her servants who this gentleman might be. The servant, who bad been instructed by the lady as to what reply he should make to a question of this sort, replied that his master was a doctor of laws who was returning home after a course of study at Bologna. The host when he heard this did them great reverence, and while the doctor of laws sat at table he inquired of the host in what fashion the City of Venice was governed; whereupon the host replied, ‘Messere, we make too much of justice here.’ When the doctor inquired how this could be, the host went on to say, ‘I will tell you how, Messere.’"

The host then tells the "doctor of laws" the whole story of Giannetto, Ansaldo, and the Jew, whereupon

"the doctor said, ‘This is an easy question to settle.’ Then cried the host, ‘If you will only take the trouble to bring it to an end, without letting this good man die, you will win the love and gratitude of the most worthy young man that ever was born, and besides this the goodwill of every citizen of our state.’ After hearing these words of the host the doctor let publish a notice through all the state of Venice, setting forth bow all those with any question of law to settle should repair to him. The report having come to the ears of Messer Giannetto that there was come from Bologna a doctor of laws who was ready to settle the rights and wrongs of [93] every dispute, he went to the Jew and suggested that they should go before the doctor aforesaid, and the Jew agreed, saying at the same time that, come what might, he would demand the right to do all that his bond allowed him. When they came before the doctor of laws, and gave him due salutation, he recognised Messer Giannetto, who meantime knew not the doctor to be his wife, because her face was stained with a certain herb. Messer Giannetto and the Jew spake their several pleas and set the question fully in order before the doctor, who took up the bond and read it, and then said to the Jew, ‘I desire that you now take those hundred thousand ducats, and let go free this good man, who will ever be bound to you by gratitude.’ The Jew replied, ‘I will do naught of this.’ Whereupon the doctor persuaded him again thereto, saying it would be the better course for him, but the Jew would not consent. Then they agreed to go to the proper court for such affairs, and the doctor, speaking on behalf of Messer Ansaldo, said, ‘Let the Merchant be brought here,’ and they fetched him forthwith, and the doctor said, ‘Now take your pound of flesh where you will, and do your work.’ Then the Jew made Messer Ansaldo, strip himself, and took in his hand a razor which he had brought for the purpose; whereupon Messer Giannetto turned to the doctor and said, ‘Messere, this is not the thing I begged you to do.’ But the doctor bade him take heart, for the, Jew had not yet cut off his pound of flesh. As the Jew approached the doctor said, ‘Take care what you do: for if you cut away more or less than a pound of flesh, you shall lose your own head; and I tell you, moreover, that if you let flow a single drop of blood, you shall die, for the reason that your bond says naught as to the shedding of blood. It simply gives you the right to take a pound of flesh, and says neither less nor more. Now, if you are a wise man, you will consider well which may be the best way to compass this task.’ Then the doctor bade them summon the executioner, and fetch likewise the axe and the block; and he said to the Jew, ‘As soon as I see the first drop of blood flow, I will have your bead stricken off.’ Hereupon the Jew began to be afeared, and Messer Giannetto to take heart; and after much fresh argument the Jew said, ‘Messer doctor, you have greater wit in these affairs than I have; so now give me those hundred thousand ducats, and I will be satisfied.’ But the doctor replied that he might take his pound of flesh, as his bond said, for he should not be allowed a single piece of money now; be should have taken it when it was offered to him. Then the Jew came to ninety, and then to eighty thousand, but the doctor stood firmer than ever to his word. Messer Giannetto spake to the doctor, [94] saying, ‘Give him what he asks, so that he lets Messer Ansaldo go free.’ But the doctor replied that the settlement of the question had better be left to himself. The Jew now cried out that he would take fifty thousand; but the doctor answered, ‘I would not give you the meanest coin you ever had in your pouch.’ The Jew went on, ‘Give me at least the ten thousand ducats that are my own, and cursed be heaven and earth!’ Then said the doctor, ‘Do you not understand that you will get nothing at all? If you are minded to take what is yours, take it; if not, I will protest, and cause your bond to be annulled.’ At these words all those who were assembled rejoiced exceedingly, and began to put flouts and jests upon the Jew, saying, ‘This fellow thought to play a trick, and see he is tricked himself.’ Then the Jew, seeing that he could not have his will, took his bonds and cut them in pieces in his rage; whereupon Messer Ansaldo was at once set free and led with the greatest rejoicing to Messer Giannetto’s house."

Then follows the episode of the ring which "the doctor" begs for and obtains from her husband, with consequences which every reader of Shakespeare knows.

This, then, is the story which Shakespeare has taken and alchemised in his own marvellous way, and I repeat, to found upon the play an argument in support of the theory of his knowledge of law and legal procedure does not appear to me to be a very wise proceeding, but it is wisdom itself compared with the criticism which Mr. Devecmon, whom Mr. Robertson follows with such blind and ingenuous confidence, passes upon it. For what says Mr. Devecmon? Commenting on the words of Shylock, "Go with me to a notary; seal me there your single bond," this lawyer, who has not merely passed four and a half years in a Scotch office but belongs to the Maryland Bar, writes as follows: "It is hardly conceivable that any lawyer, or anyone who had spent a considerable time in a lawyer’s office, in Shakespeare’s age could have been guilty of the egregious error of calling a bond with a collateral condition a ‘single bond.’ A single bond, simplex obligatio, is a bond without a collateral condition, but that described by Shylock is with collateral [95] condition. It is possible that a lawyer in this age would be guilty of ignorance on this point, but hardly in Elizabeth’s age, and least of all a lawyer in an inland town like Stratford." This sounds very learned; but it is entire rubbish. A "single bond" here simply means a bond without sureties. Et voili tout, as Mr. Robertson would say. Shylock, who only wanted his pound of flesh, had no need of sureties, for the merchant could always provide him with that. [96]

But, not content with this egregious piece of folly, Mr. Devecmon thus passes censure upon the whole drama, one of the most delightful of all the Shakespearean comedies: "In this play Shakespeare not only manifests his lack of knowledge of the technique of the legal profession; he shows a profound ignorance of law and of the fundamental principles of justice, unless we assume that the trial scene disregards all ideas of law, justice, and morality for mere dramatic effect, but it has been repeatedly shown by many writers that equal dramatic effect could have been attained without such sacrifice."

So then, in the opinion of this high legal authority, to whom Mr. Robertson so confidently appeals, the immortal bard, who is not of an age but for all time, shows a profound ignorance, not only of law, but "of the fundamental principles of justice," unless indeed he was so inartistic and so deficient in taste and skill as to throw overboard "all ideas of law, justice, and morality for a mere dramatic effect," which effect "could have been attained without such sacrifice." Such is the judgment of this egregious critic—and I presume the docile Mr. Robertson follows him here also—upon Shakespeare’s Merchant of Venice! And these are the men who pose as champions (save the mark!) of the world’s great [97] poet! Is not such criticism worthy of "The Ineptitude" himself?

I have shown how Shakespeare took Ser Giovanni’s novel, transmuting baser metal into purest gold as he alone knew how, but following closely upon the lines laid down for him by the old Italian writer; and because the Jew who "thought to play a trick is tricked himself"; because he is not only denied his pound of flesh but done out of his ducats; because he is mocked and jeered at and made a butt of in the play, as in the novel; because the dramatist brings in Portia, "the lady of Belmonte," as a doctor of laws, and introduces a trial scene very much after the style of Ser Giovanni; therefore we are to be told by this transatlantic doctrinaire that Shakespeare could have had no knowledge "of the technique of the legal profession," and was profoundly ignorant not only of law but—I must really quote the words yet again—"the fundamental principles of justice"! Such is the critic upon whose opinions and judgment Mr. Robertson has built a great part of his case! Here, therefore, I will repeat what I wrote before concerning Shakespeare’s wonderful Venetian play: "It must not be forgotten that The Merchant of Venice is a comedy, although such actors as the late Sir Henry Irving used to send us away with the idea that we had been witnessing a tragedy. I conceive that audiences in Shakespeare’s day, to whom ‘Jew baiting’ was far from distasteful, used to laugh at the misfortunes of Shylock, where we now experience not a little sympathy for the poor old Jew, in spite of his insistence on his ‘pound of flesh.’ At any rate, it seems to me simply ridiculous to contend that the dramatist was in ‘profound ignorance’ of the law, and I ‘of the fundamental principles of justice’ also (alas for our immortal bard!), because, following an Italian romance, he has presented us in his comedy with a fantastic trial [98] scene, in which he has not been either such a bad artist or, I may add, such a portentous pedant as to make his characters solemnly conform to the rules of British law and legal procedure."

To come back from the particular to the general. I should be the first to admit that much nonsense has been written concerning Shakespeare’s knowledge of law. But a proposition is not necessarily untrue because unsound arguments are advanced in its support; and I do not think the whole question will be, or can be, finally disposed of by such methods as those employed by Mr. Robertson. Let me give an instance on the other side. In the Literary Supplement to The Fortnightly Review of November, 1911, there is an article on "Shakespeare and the Law of Marriage."

The author is, evidently, a man of orthodox "Stratfordian" faith, and his judgment as to the correctness of Shakespeare’s statement of the law, in a rather abstruse matter, is all the more valuable because he doubts whether "Will" could possibly have made such a correct [99] statement "except by accident." The passage referred to is in Measure for Measure (Act V, Scene 1) where the Duke, after having caused Angelo to marry Mariana, condemns him

To Mariana’s entreaties he affects to turn a deaf ear, but says:

Upon this passage the writer in The Fortnightly comments as follows: "The legal point is very interesting. If a tenant in chivalry committed a felony, this affected his holding, and an escheat to the lord propter delictum tenentis followed. But a felony was an offence against the State, and so the Crown claimed the escheat or forfeiture. But the Crown was compelled to surrender this right by Magna Charta, though it managed to retain it in the case of high treason, and to this day, in the case of an outlawry upon an indictment for treason, the traitor’s land is forfeited to the Crown. But what about the rights of the widow, whether the escheat is to the lord or the Crown? Poor woman, what has she done? The widow had larger rights in her estate of dower than even the heir, for she was absolutely secured against any form of alienation by the owner. Yet Shakespeare makes the Duke declare that, in this case, she had no rights; and he was correct, for the law had been finally settled that way not so very long before Shakespeare’s time. Up to the reign of Edward VI the widow was not protected against escheat for felony or treason; but in 1549 it was settled by statute that escheat in the case of felony did not affect the widow’s dower, though in the case [100] of high or petit treason the dower was extinguished, thus confirming, in the case of treason, the old law, not only that no heir born before or after the felony could take the escheated property, but that every gift (including dower) made in the felon’s lifetime was bad. So Mariana would not have been entitled to dower unless the Duke had relinquished his rights.’ But Shakespeare [i.e. Shakspere of Stratford] can hardly be taken to have known the law on this point, although he declares it correctly, and does so in spite of the fact that Angelo’s offence was really petit treason, and not high treason, since the Duke was a feudal lord, and not a king. This distinction Shakespeare could hardly have known, and, if he had known, would have neglected.

"The line between felony and petty treason was always very narrow, and was abolished in 1838. Shakespeare may have heard the point discussed by some of his legal friends, for treason was the popular offence of his age. But it is carrying the worship of Shakespeare a little too far to suppose that he was familiar with this particular obscurity in the law of treason. On the other hand, the play teems with legal references and correct statements of the law, and it is dangerous to dogmatise as to the extent of Shakespeare’s legal knowledge, especially as we know that he was on more than one occasion a litigant."

This is, I think, an instructive passage. The writer, apparently a lawyer, has come to the conclusion that Shakespeare has made a correct statement on a point of law which, as he writes, "was, one would think, too complicated and unusual in practice for a layman to have known." How could William Shakspere, the Stratford player, have known it? Perhaps he was right "by accident." We must not let our Shakespeare idolatry carry us so far as to make us suppose that he was familiar with this particular obscurity in the law of [101] treason. Yet "it is dangerous to dogmatise as to the extent of Shakespeare’s legal knowledge." Perhaps he did know the law after all; for "the play teems with legal references and correct statements of law." Perhaps Shakespeare may have picked up this obscure point in the law of treason from one of his own lawsuits!

How then is this question as to Shakespeare’s legal knowledge to be decided? Not, I think, by Mr. Robertson’s method of filling page after page with quotations from contemporary writers which, in the majority of instances, are submitted to us as examples of "legal" expressions, because they contain such terms as "witness," "warrant," "judge," "jury," "compound," "lease," "will," "term-time," and the like, though sometimes, it is true, they go as far as "livery and seisin," "caveat," "supersedeas," "fine," "recovery," etc. etc.

I repeat here, and I repeat most emphatically, that "it is not a question of the mere use of legal phrases or maxims." We cannot obtain an integral number by the mere multiplication of ciphers. 0"= 0 for all time. Mr. Robertson seeks, apparently, to snow us under "with multitudinous citations, but the legal, or pseudo-legal, snowflakes melt as they fall. I freely admit, of course, that if the legal terms, expressions, references, and allusions to be found in Shakespeare are of no more weight or substance than the vast majority of Mr. Robertson’s quotations, then cadit quaestio—there is no question to be answered.

I submit, however, that such is not the case, and that the question is still very much alive. Who is to answer it? It cannot, in my judgment, be answered by a layman. For although, of course, Mr. Robertson would never for a moment admit the truth of any such proposition, no one who has not served his apprenticeship to the law [102]—and only those who have done so through long and arduous years can appreciate how difficult it is to master and understand—is competent to form an opinion as to the legal meaning which may be contained in any of such terms, expressions, references, and allusions, or as to the legal knowledge which may underlie it. At the same time we must admit the impossibility of finding a legal arbitrator to whom this question can be submitted with confidence, or whose decision would be generally accepted as settling the matter at issue. The most expert lawyer may go wrong, a Lord Chief Justice, may be deficient in judgment, and a Lord Chancellor may speak ill-advisedly, and even foolishly, with his lips. Therefore, I fear, we must say that adhuc sub iudice lis est, and that it is likely so to remain indefinitely. Meantime the safest course will be to consider the "Shakespeare Problem" quite apart from this vexed question of Shakespeare’s legal knowledge; and this I propose to do, as briefly as may be, in a later portion of this work. But do not let us forget that, whether it be true or whether it be false, the assertion of Shakespeare’s peculiar knowledge of law was not the invention of any "Baconian" or "anti-Stratfordian" heretic, but originated with some of the most learned of "orthodox" Shakespeareans, including such an eminent critic and distinguished lawyer as Malone himself. [103]

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* The Pecorone of Ser Giovanni, now first translated into English by W. G. Waters, illustrated by E. R, Hughes, R.W.S. (1897). back

** Even if a "single bond" be taken as the same thing as the simplex obligatio, whereby the obligor binds himself, his heirs, executors, etc., to pay a certain sum of money to another at a day appointed, it by no means follows that Shakespeare's law is at fault, for although Shylock talks about "such sums as are expressed in the condition," yet technically, and in point of fact, there is no "condition," since Bassanio binds himself to repay the money lent "on such a day in such a place" without any condition, the provision as to the pound of flesh being really not a condition but a penalty. A bond with a collateral condition binds the obligor to pay a sum of money unless a certain condition be fulfilled. An ordinary recognizance is an example, the condition of which is that the obligor shall be of good behaviour, in which case the money does not become due. The force of a "condition" is that if the obligor does some particular act the obligation shall be void. In the case of Shylock's bond the obligor was to pay the money in any event under penalty of losing a pound of flesh if he did not. It was, therefore, a simplex obligatio or "single bond." Shakespeare has many allusions to bonds, as, for instance, the very unpoetical one in Venus and Adonis, where Venus says:

where the allusion is to a common money-bond, wherein it was frequently provided that if the sum secured were not paid by a certain time "the debt should double." Compare also Sonnet CXXXIV:

where "statute" is a bond in the nature of a "statute-merchant" or "statute-staple."

I have in my possession an amusing and interesting example of a bond with a simple condition, "without sureties." It runs as follows: "I acknowledge to owe to our Sovereign Lord the Treasurer of the Middle Temple for the time being the sum of £10,000 to be paid to him or his successors in that office on demand, dated this 2nd July 1860.

"The condition of this Bond is that if the obligor shall dine in Hall after receiving the Great Seals of England not less than once in every term unless prevented by indisposition (of which the Treasurer for the time being shall be the sole judge) then this obligation shall be void, otherwise of full force and virtue. Given under my hand and seal this 2nd day of July 1860."

This Bond pour rire, which bears a seal impressed with the Middle Temple "Lamb," is duly signed by "Richard Bethell," afterwards Lord Westbury, and also by nine of the then Benchers of the Inn, of whom my father, the late John Greenwood, then Solicitor to the Treasury (in whose handwriting the document in question is) was one. (Since the above was in type, the document has passed into the possession of the Benchers of the Middle Temple.) back

*** The Shakespeare Problem Restated, p. 404. back

† Mr. Robertson, by the way, although he tells us nothing about the Pecorone, has something to say concerning Shakespeare's "moral outlook" in his play, where, according to Mr. Devecmon, the dramatist has disregarded "all ideas of law, justice, and morality." "As regards Shakespeare's moral outlook in the matter," writes Mr. Robertson (p. 61), "it may suffice to remind the reader of the existence of an older play, referred to by Stephen Gosson in his School of Abuse (1579), on the subject of the caskets and the Jewish usurer's bond; and to suggest that Shakespeare who has done so much to humanise the figure of the hated Jew in other respects, probably stopped short of the vengeance meted out in the older drama." Now Stephen Gosson, in the tract referred to, "containing a pleasant invective against poets, pipers, players, jesters, and such like caterpillars of the commonwealth," thus describes a play of his time: "The Jew, shewn at the Bull representing the greedyness of worldly choosers, and the bloody minds of usurers"; and seeing that all we know of this "older play" is contained in these few words it is hardly legitimate to state as a known fact that the play was "on the subject of the caskets and the Jewish usurer's bond," while as to "the vengeance meted out in the older drama," we really know nothing whatever about it. As to the "caskets" scene, there can be little doubt that Shakespeare took it from the English Gesta Romanorum. back

†† The writer, apparently, had forgotten John Shakespeare's suits in the Stratford "Court of Record," in placito debiti! back

††† See Note B appended to this chapter, where I deal with Mr. Robertson's quaint propositions with regard to the "long trial scene" in A Warning for Faire Women, and the alleged legal technicalities in the so-called "indictment" in Jonson's Poetaster. back