Part Three - MR. ROBERTSON AS EXPONENT OF LAW

Mr. Robertson repeatedly alleges that Lord Campbell is my "chief witness," or "main authority," in support of the case for Shakespeare’s exceptional knowledge of law and legal terms. The allegation, however, has no foundation in fact. As I have already stated, it was not my purpose, when, in 1908, I published The Shakespeare Problem Restated, to formulate anew a case for Shakespeare’s legal knowledge. I found that the existence [19] of such knowledge was, so far as I could see, an accepted article of the "orthodox" Shakespearean faith, and I based a certain superstructure of argument upon that fact. But Mr. Robertson having repudiated that article of faith altogether, and having rejected the legalist theory in toto, I wrote, in 1916, as above mentioned, that, so far from relying upon Lord Campbell to substantiate the hypothesis in question, I was "quite free to own that I should not care to rest the theory that Shakespeare had the amount of legal knowledge which Lord Campbell ascribes to him, simply on the evidential passages which he has presented to us."*

This being so, I certainly did not think it worth while to discuss these "evidential passages" seriatim, though I selected four or five for examination, not so much for their own sakes as in order to present for the reader’s consideration Mr. Robertson’s criticism thereon. One of these was the passage quoted by Lord Campbell from The Merry Wives, where Ford says his love is "Like a fair house built upon another man’s ground; so that I have lost my edifice by mistaking the place where I erected it." Upon this Lord Campbell comments that it "shows in Shakespeare a knowledge of the law of real property not generally possessed." Mr. Robertson is very contemptuous of this. "It might suffice to answer," he writes, "that such knowledge is today possessed by millions of laymen."** Commenting upon this, I made the admission that Lord Campbell’s proposition "certainly sounds somewhat ridiculous."*** Mr. Robertson now quotes these words (Literary Guide, January, 1916, p. 10) as a "confession" on my part, and adds that I proceed "to try to extenuate the absurdity."

Now, what I really did was to show that, though the proposition in question perhaps "sounds somewhat ridiculous," yet, in truth, when examined it proves not to be ridiculous at all. "Millions of laymen" know the law on this matter, says Mr. Robertson. But do they? [20] Ask any ordinary layman this question: If A builds a house on B’s land, honestly believing it to be his own land, and B lies by and says nothing, and then, when A has spent his money and built the house, claims it as his property, to whom, in these circumstances, does the house belong? I fancy the ordinary layman, and perhaps some lawyers, will find some little difficulty in answering the question. As I have shown,**** to understand the law on this matter one has to go back to Justinian’s Institutes, and the comments of the learned thereon; and as Lord Campbell truly says:† "The unlearned would suppose that if, by mistake, a man builds a fine house on the land of another, when he discovers his error he will be permitted to remove all the materials of the structure, and particularly the marble pillars and carved chimney-pieces with which he has adorned it; but Shakespeare knew better." Agreeably with this, I find that an American lawyer, referring to the above quotation from The Merry Wives, writes in Case and Comment—described as "The Lawyer’s Magazine"—for August, 1914, that "This principle of law is not apt to be known by laymen."†† But Mr. Robertson says that all this is mere "absurdity"! Can we "believe that the Judge is serious?" he asks. Well, I must leave it to the reader to judge whether this indicates superior knowledge on Mr. Robertson’s part, or inferior ignorance.

But this learned critic, who has apparently been gifted by nature with that knowledge of law which Lord Campbell confessed it had taken him such long labour to acquire, does not stop here. He will refute any inference which an uncritical reader might be disposed to draw from Lord Campbell’s quotation by parallel passages evolved from his great knowledge of Elizabethan literature. "Let the lawyer be answered in legal form. In Dekker’s Shoemaker’s Holiday, published in 1597, Hodge says (v, 2): ‘The law’s on our side; he that sows on [21] another man’s ground forfeits his harvest.’ Hodge is a foreman shoemaker. Was Dekker an attorney’s clerk, or was Hodge talking in character and saying what any shoemaker might? Or was it a lawyer who penned in Heywood’s English Traveller (iv, 1) the lines:

Observe the "parallels"! I think it may be truly said that "millions of laymen know" that if I sow on another man’s ground—without any agreement with him, of course—I forfeit my harvest. Even the "shoemaker" could hardly have thought otherwise. But Mr. Robertson thinks this is a parallel case to the man who knows the law to the effect that if he, quite honestly, builds a. house on another man’s land, and is allowed by that other to complete it, the house becomes the property of the owner of the soil!

As to the passage cited from Heywood, how it is supposed to be a parallel at all, or what its relevancy is supposed to be, entirely passes my comprehension.

I am not now arguing whether or not the passage quoted by Lord Campbell from The Merry Wives has any importance with reference to the question of Shakespeare’s knowledge of law, but I do confidently submit that Mr. Robertson’s supposed "parallels" are absolutely futile. Whether that is so or not the reader can judge for himself.

I have dwelt at some length on this particular example of Mr. Robertson’s criticism of Lord Campbell’s book, because his comment in the Literary Guide upon what I wrote concerning it seems intended to leave the impression upon the reader’s mind that I admitted the alleged "absurdity" and then proceeded to "try to extenuate it." This, the reader will see, is far from being the case. I will now refer to one more example of Mr. Robertson’s easy way of dealing with Lord Campbell’s "absurdities," and will then leave this part of the subject, since it [22] would be quite unprofitable to follow it further, and would, moreover, require far more time and space than I am at present prepared to give to it.

At page 63 of The Baconian Heresy I find this curious passage: "Lord Campbell gives three pages to the proposition that the bare plot of All’s Well, as regards the legal position of Bertram, is proof ‘that Shakespeare had an accurate knowledge of the law of England respecting...tenure in chivalry’ and ‘wardship of minors.’ The wardship of Bertram, we are told, ‘Shakespeare drew from his own knowledge of the common law of England, which was in full force in the reign of Elizabeth.’ That is to say, the alleged knowledge must have been common to the multitude [my italics], since there is not a word of technicalities in the play. And after all, we learn, in a footnote, that ‘according to Littleton it is doubtful whether Bertram might not have refused to marry Helena on the ground that she was not of noble descent.’"

Now, what is the meaning of Mr. Robertson’s assertion that the "alleged knowledge (i.e., the ‘knowledge of the common law of England’) must have been common to the multitude"? "The common law," it is scarcely necessary to say, is a technical term, and Mr. Robertson can hardly suppose that the knowledge of the common law, which it requires many years, and perhaps a lifetime, of study to acquire, was "common to the multitude"! Does he, then, refer only to the knowledge of the common law with regard to "wardship"? But how can he conceive that such knowledge was "common to the multitude" in Shakespeare’s time? I must leave it to the reader to form his own opinion as to this remarkable passage.

With regard, however, to Lord Campbell’s footnote, I think the answer is that the King of France had the power of ennobling Helena, and expressed his intention of so doing, so that Bertram, his ward, would not have been "disparaged" by a mésalliance.

And Bertram subsequently admits,

Whereupon the King says to him:

Lord Campbell had, probably, overlooked the above passages.

Mr. Robertson, who is so contemptuous of "authority," even on a matter of law in which his own want of knowledge is so exceedingly obvious, nevertheless has made frequent appeals to the authority of a certain Mr. Devecmon, of the Maryland Bar, who in 1899 published a book in which he made an attempt to convict Shakespeare of "bad law" in various passages cited by him.†††† I have shown that this attempt fails so signally as to suggest grave doubts with regard to the quality of the author’s own legal attainments,††††† and I have no intention of repeating here my survey of the cases cited by him. I will, however, make brief allusion to two of them.

Commenting on the words of Shylock, "Go with me to a notary; seal me there your single bond" (Merchant of Venice, i, 3), this critic writes: "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 condition."

Notwithstanding this confident pronouncement, I venture to think that the "error" is not Shakespeare’s, but [24] Mr. Devecmon’s, though other critics have shared it with him.

In the first place, those distinguished Shakespearean scholars, the Cambridge Editors (Messrs. W. G. Clark and Aldis Wright), tell us that the expression a "single bond" may be properly used of a bond without sureties.‡ But I do not rely upon this, as I propose to show that Antonio’s bond was not a "conditional" bond, as that expression is understood by lawyers.

"Bonds have usually a condition annexed to them to the effect 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." So says the Encyclopedia of the Laws of England (Vol. ii, p. 334, Art. "Bond," 1906). 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 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 his Majesty 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.‡‡‡ [25]

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."‡‡‡‡ 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" upon 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. It is true also that Shylock speaks of "such sum or sums as are expressed in the condition"; but that is not sufficient to make the bond a "conditional" one if, upon examination, it is found that there is no legal "condition" attached to it. Moreover, I shall show presently whence it was that Shakespeare took this word "condition," which here means nothing more than a term of the agreement between the parties. Of course, if it could be said that Antonio entered 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, in that case the bond would be a "conditional" one. But we have only to refer to the passage cited in the Merchant of Venice to see that this was not so, for, I repeat, Antonio 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:

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, I apprehend, is not what the law calls a bond "with collateral condition." It is a "single bond" with a penalty attached in the case of non-payment, and when Shylock speaks of "the condition" it is clear that he must be taken to mean the bargain,‡‡‡‡‡ or this particular term of the bargain; indeed, 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 mila ducati, andò a un Giudeo a Mestri, e accattogli con questi patti e condizioni, che s’egli non glie l’avesse renduti dal detto di 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 endeavoured to explain above. It is from not observing this that the critics have been misled into charging Shakespeare with "bad [27] law," because he calls Antonio’s obligation a "single bond," which in reality it was.

There is, of course, no reason why a bond should not be drawn in the form above set forth. If it be objected that such a form of bond is not in accordance with our English practice, my answer is that in all this story Shakespeare merely follows Ser Giovanni’s Pecorone (Day IV, Novel I), as I have shown at length in Is There a Shakespeare Problem? (p. 90 et seq.), and it appears to me futile to attempt to base upon this comedy any argument as to the dramatist’s knowledge of law or the want of it.

_________

* Is There a Shakespeare Problem? p. 53. back

** Op. Cit. p. 40.back

*** Is There a Shakespeare Problem? p. 54.back

**** Op. cit. pp, 54, 55.back

† Shakespeare's Legal Acquirements, p. 34.back

†† The writer is the Hon. John H. Light, Attorney General for Connecticut. Mr. Light actually adds that "there are very few lawyers who really understand the true spirit and science of the law as well as Shakespeare." What a target for Mr. Robertson's scorn! back

††† Baconian Heresy, p. 40. back

†††† See his Did Shakespeare Write "Titus Andronicus"? p. 54, and The Baconian Heresy where indexed. At p. 175, note, Mr. Robertson speaks of Deveemon as his "ally." back

††††† The Shakespeare Problem Restated, p. 396 et seq. back

‡ So, too, Mr. Israel Gollancz says a "single bond," as here used by Shakepeare, probably means "a bond with your own signature without the names of sureties." Temple Shakespeare, Merchant of Venice, Glossary, p. 124. (1890), Vol. ii, p. 117.back

‡‡ Stephen's Comm., 11th Ed. back

‡‡‡ In practice, however, this recognizance is not reduced to writing, the acknowledgment being made in open Court, and a note of it being taken by the officer of the Court. It is otherwise with a recognizance of bail, where he who tenders himself as bail for the accused acknowledges himself to owe to his Majesty the King the sum fixed for bail. The document then proceeds as follows: "The condition of the within-written recognizance is such that whereas the said A. B. was this day charged before us, the Justices within mentioned for that, etc….if therefore the said A. B. will appear at the next Court, etc….and there surrender himself, etc….then the said recognizance to be void, or else to stand in full force and virtue." back

‡‡‡‡ Merchant of Venice, 1, 3, 147. back

‡‡‡‡‡ Mr. Robertson is, therefore, wholly in error when he writes of "the theorem that if A. lends money on condition of being allowed to cut off half of a newly-killed pig belonging to B.," etc. (p. 60). That would not be a "condition," but a penalty in case of B.'s failure to repay the money. back