SHAKESPEARE’S LAW – PART 2

Let us now see what our legal mentor has to tell us about The Merchant of Venice, one of the two plays in which, if we fail to recognize Shakespeare’s ignorance both of "elementary legal principles and of legal procedure," we must, according to Sir Sidney Lee, be content to forfeit all claim to be called "judicious" readers. Nay, another Transatlantic lawyer, Mr. Devecmon, of the Maryland Bar, has informed us that in this play the bard of all ages "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"!* I am not sure, however, whether Sir Sidney would be altogether ready to subscribe to this astonishing pronouncement. To say that Shakespeare was ignorant of the "fundamental principles of justice" is, perhaps, going rather farther than even he is prepared to go.

But let us hear Mr. Charles Allen on the subject. [20] First of all, adverting to the fact that by the will of Portia’s father, all her suitors must submit to the test of the caskets, and if unsuccessful must for ever renounce marriage, he writes: "This testamentary provision in restraint of marriage, with no means of enforcing it, would seem to have been the invention of a story-teller rather than of a lawyer."

Well, the tale of the Caskets certainly was the invention of a story-teller, for, as Sir Israel Gollancz writes, "The Gesta Romanorum—Richard Robinson’s English version, entitled ‘Records of Ancyent Historyes’ (1577)—contains the nearest approximation to the story of ‘The Three Caskets’ as treated in this play,"** and it was well known to English dramatic literature at least as early as 1579. But then this "testamentary provision" was "in restraint of marriage"; so Mr. Charles Allen appears to think that no writer who had any knowledge of law could possibly have introduced this old story into a play!

Then the Trial Scene—let the reader take note of Mr. Allen’s destructive criticism as to that.† Why, inter alia enormia, Doctor Bellario actually palms off Portia on the Duke of Venice as a young doctor of laws from Rome, who could expound and determine the law of Venice. "Such conduct," says Mr. Allen, "if it were possible under our system, would be good ground of disbarment here"!

Then just see how the trial is conducted. Why, "Portia’s rules of law will not bear examination." Amongst other things, "such a condition of a bond (Antonio’s) probably would not even at that time have been valid, as it involved a homicide. But if valid, it would be no violation of the condition to cut [21] off less than a pound of flesh," and so forth and so forth.

So clearly Shakespeare was hopelessly ignorant "alike of elementary legal principles and of legal procedure." Yes, and may we not add, with the learned Mr. Devecmon, "of the fundamental principles of justice" also?

Now I would ask the "judicious reader," what does he think of criticism of this kind? To me I confess it appears to be indicative of an utter dearth not only of critical intelligence, but of ordinary common sense.

What is this delightful play which we all know as The Merchant of Venice? First of all let it never be forgotten that it is a comedy. Those who saw the late Sir Henry Irving in it could hardly escape from the idea that it was a tragedy. Their sympathies became gradually enlisted in favour of the harassed old Jew, and Shylock became the hero of the piece; and even those who have seen Maurice Moscovitch in the part—to my mind an ideal Shylock—can hardly laugh at the misery of the wretched old man, as, no doubt, audiences in Shakespearean times, to whom Jewbaiting on the stage was a congenial sport, were accustomed to do, or refrain, in spite of his avarice and his cruel desire for vengeance, from extending to him some need of sympathy in his despair. But this, I take it, arises from the softened humanities of our own times, when we feel that "the quality of mercy is not strained" even when it is extended to such a miserable creature as Shylock.

The play, then, is a "comedy," and must be criticized as a comedy. But the point is that, in the main, it is all taken from the Pecorone of Ser Giovanni (Day IV, Novel I). Here we find the Merchant, 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; and that he followed the old Italian writer very closely is [22] made manifest by a reference to the original. Take the following as one example. Shylock stipulates for:

Ser Giovanni’s words are: "Che ‘l Giudeo gli potesse levare una libra di carne d’addosso di qualunque luogo c’volesse"; i.e., "that the Jew might take a pound of flesh from any part of his body he pleased."††

This, then, is the story which Shakespeare has taken and alchemized in his own marvellous way, transmuting baser metal into purest gold, as he alone knew how, but following closely upon the lines laid down for him by Ser Giovanni’s novel; 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 into his comedy a trial scene very much after the style of the Italian original, therefore we are to be told, forsooth, by a doctrinaire critic that Shakespeare could have had no knowledge of elementary legal principles or procedure, and perhaps not even of the "fundamental principles of justice"!

Is this, I would ask, really to be accepted as the intelligent and enlightened and well-informed Shakespearean criticism of the present day? For myself I should characterize it by epithets of a very different kind. But perhaps the "judicious reader" will supply them. I assert that such a play as The Merchant of Venice, though it gives us proof that the [23] author of it stands in the supreme rank of dramatists, provides us with no evidence whatever either that he had special knowledge of law, or that he was ignorant of law. A man endowed with the dramatic genius of Shakespeare, even though he were a Lord Chancellor, or a Lord Chief Justice of England, might take an Italian model and fashion upon it such a play, even though all the law and legal procedure therein were wildly discordant when compared with "our system," to which Mr. Allen makes such solemn reference. All his concern would be to make a delightful comedy amid delightful Italian scenery, and, not being a stolid dolt, he would not concern himself a twopenny buttontop about the laws of England and the practice of the King’s Bench.

If, then, it is deemed "judicious" by our Shakespearean Highbrows of the present day to see in The Merchant of Venice a proof that the poet who is "not of an age but for all time" was destitute of all knowledge of "elementary legal principles and legal procedure," I can only pray that I may be found among the injudicious to the end of my allotted time.‡ [24]

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* "In re Shakespeare's Legal Acquirements," by William C. Devecmon. Publications of the New York Shakespeare Society, No. 12, London, Kegan Paul, 1899. (My italics). back

** "The Temple Shakespeare" Edition, p. ix. See the "Story of the Choice of Three Caskets" from the Gesta Romanorum," translated by Richard Robinson, in Payne Collier's "Shakespeare's Library," Vol. ii. p. 102. back

† Work cited, p. 113 and following. back

†† Ser Giovanni Fiorentino's story, with English translation, is to be found in Payne Collier's "Shakespeare's Library," Vol. ii. p. 65. See also The Pecorone of Ser Giovanni, now first translated into English by W. G. Waters, illustrated by E. R. Hughes, R.W.S. (1897). back

‡ There is yet another thing that sapient lay critics are apt to forget. It is impossible for the best of lawyers to make a "trial scene" on the stage conform to strict legal procedure. Take, for example, the play called The Butterfly on the Wheel, by Mr. E. G. Hemmerde, K.C., where such a scene is introduced. Here a legal critic may find many things said and done which could not have been actually said or done in a real trial by jury, but it would be absurd to say that, therefore, Mr. Hemmerde is ignorant of law. A dramatist is, of course, under the necessity of greatly compressing his "trial scene," otherwise it would, probably, last many hours, and in order to do this he is obliged to depart from the rules of legal procedure. His witnesses, for instance, cannot be examined, cross-examined, and re-examined as they would be in a Court of law, and, amongst other irregularities, "leading questions" are absolutely necessary for him. These things are not "mistakes." They are the result of the necessities of the case. The "Temple" Edition, Glossary, p. 124. back