SHAKESPEARE’S LAW – PART 3

But what about Antonio’s bond? Is it not clear that Shakespeare went wrong here on an elementary point of law? Why, he did not know the distinction between a "single bond" or simplex obligatio, and a conditional bond!

Let us examine this, and I think we shall find that the error is not Shakespeare’s but that of the learned critics and commentators. What says Mr. Charles Allen? "In The Merchant of Venice Shylock says:

Technically, a single bond was a bond without condition, but Antonio’s bond was to have a condition, and therefore it was inaccurately described as a single bond."

Now, in the first place, the Cambridge Editors tell us that the expression a "single bond" may be properly used of a bond without sureties, and so also says Sir Israel Gollancz.* But I have no desire to ride off on that explanation, for I propose to show that Antonio’s bond was not a conditional bond, as that expression is understood by lawyers, but really a "single bond."

"Bonds have usually a condition annexed to them that on the person bound paying so much money, or doing some specified act, the bond shall be void. A bond without a condition is called a single bond."** Again, "a bond is an instrument under seal whereby the party from whom the security is taken obliges himself to pay a certain sum of money to another at a day specified. If this be all, the bond is called a single one (simplex obligatio), but there is generally a condition added that if the obligor does, or abstains from doing, some particular act, the obligation shall be void, or else shall remain in full force, and the sum [25] mentioned in the obligatory part of the bond is in the nature of a penal sum (or penalty), and is usually fixed at much more than is sufficient to cover any possible damage arising from the breach of the condition."††

A well-known example of a conditional bond is a common recognizance, in which the obligor binds himself to pay a certain sum of money to H.M. the King, the "condition" of the recognizance being that if he is of good behaviour for a certain time the bond becomes void, and no money has to be paid.

Now let us try to apply these legal definitions and examples to Antonio’s bond. Antonio bound himself to pay to Shylock a certain sum of money "on such a day, in such a place" (Merchant of Venice, i. 3, 147). And what was the "condition" "upon the performance of which the bond was to become void? There was no such condition. Antonio binds himself absolutely to pay this certain sum at a certain place on a certain day. True there was a penalty attached if he failed to do so. In that case he was to forfeit a pound of flesh. But that was not a "condition" on the performance of which the bond was to become void. On the contrary, it was a penalty pure and simple, dependent for its effect upon the existence of the bond. If it had been provided by the document that Antonio should enter into an obligation to allow Shylock to cut off a pound of his flesh, "on such a day, in such a place," the "condition" of the bond being that if he paid a certain sum of money at a fixed date then the bond should become void and of no effect, in that case the bond would have been a "conditional" one. But we have only to refer to the passage cited from the play to see that this was not so, for, I repeat, Antonio simply bound himself to pay the money at a fixed time and place, without condition or qualification, and, says Shylock, if he did not do so: [26]

And further on he asks:

So that the "obligation" was not to allow the pound of flesh to be cut away; the obligation "was to pay the money, subject to the forfeiture," or penalty, named, which was to be enforced, if the Jew so pleased, upon the obligor’s failure to pay as agreed. It is as if A binds himself to pay to B £100 on January 1 at the Royal Exchange, subject to the penalty, on failure so to do, of handing over his motor-car to B. But this is not a bond "with collateral condition." It is a "single bond" with a penalty attached in case of non-payment. It is true that Shylock talks of "such a sum or sums as are expressed in the condition," but "condition" here means nothing more than the bargain, or this particular term of the bargain, and that this is so, and that Shakespeare had not in view a "condition" in the technical sense, is made manifest by a reference to the original Italian from which the story is taken. Here we read: "E perchè gli mancavano, dieci milia ducati, andò a un Giudeo a Mestri, e accattogli con questi patti e condizioni, che s’egli non glie l’avesse renduti dal detto dì a San Giovanni di giugno prossimo a venire, che ‘l Giudeo gli potesse levare una libra di carne d’addosso di qualunque luogo e’ volesse"—i.e., "As he wanted still ten thousand ducats, he applied to a Jew at Mestri, and borrowed them on these terms and conditions, that if they were not repaid on the feast of St. John in the next month of June, the Jew might take a pound of flesh from any part of his body he pleased."

This clearly shows whence the dramatist took the word "condition" which he puts into Shylock’s mouth and that its meaning is only such as I have [27] explained. It is from not observing this that certain critics, like Mr. Charles Allen, have been misled into charging Shakespeare with "bad law," because he calls Antonio’s obligation a "single bond," which in reality it was. If it be objected that such a form of bond is not often met with in our English practice or "our system", as Mr. Allen calls it—the answer is that in all this story Shakespeare merely follows Ser Giovanni, and the conclusion of the whole matter is that it is the sapient critics, and not the great dramatist, who have been guilty of lamentable error and absurdity concerning both the bond, and the play generally.††

Quite similar, and open to the same observation, is Mr. Allen’s criticism of Cymbeline. Here, says he, "the wager upon which Iachimo came to England was grossly immoral, and could never have supported an action at law; but in the play lawful counsel were to be called in to draw covenants which should be valid in law." The answer is that all this story about the wager was taken from Boccaccio, and it is absurd to suppose that Shakespeare, when founding a play on an Italian romance, would trouble himself about the English law concerning wagers contra bonos mores and the like. Aye, but Posthumus says to Iachimo, "Let there be covenants drawn between us . . . let us have articles betwixt us,"‡ and Iachimo agrees, and says "We will have these things set down by lawful counsel," and such an agreement between these two (entered into at Rome) is adduced by Mr. Allen as evidence of "bad law" and ignorance of legal principles, because according to English law—though Cymbeline, it may be remembered, was a British King supposed to have been contemporary with the [28] Roman Emperor Augustus—such a contract could not be enforced! Are we really to regard this as the sort of Shakespearean criticism which is now accepted and endorsed by our pundits of literature? Quantula sapientia!

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* The "Temple" Edition, Glossary, p. 124. back

** Encyclopaedia of the Laws of England, vol. ii. p. 334. Art. "Bond" (1906). back

† Stephen's Comm., 11th Edn. (1890), vol. ii. p. 117. back

†† Malone, himself a sound lawyer, knew better. He quotes the words "Go with me to a notary, seal me there your single bond" in illustration of Shakespeare's legal knowledge. Boswell's Malone, vol. ii. p. 109. back

‡ In Boccaccio's story (The ninth Novel of the second day of the Decameron) we read: "The two persons concerned were so resolutely bent on their purpose that all dissuasions were ineffectual, and an Obligation in writing being drawn up, they both signed and sealed it in the presence of their companions" (Mrs. Lennox's translation). It will be seen how closely Shakespeare follows his Italian model here. back