Lord Campbell's Case – Part 4

15. In The Merchant of Venice (I, 3; ii. 8), we are assured, "Antonio’s bond to Shylock is prepared and talked about according to all the forms observed in an English attorney’s office. The distinction between a ‘single bill’ and a ‘bond with a condition’ is clearly referred to; and punctual payment is expressed in the technical phrase, ‘Let good Antonio keep his day.’" By which token Dekker and Webster were probably attorneys’ clerks, because they make Monopoly in Westward Ho (I, 2), when told that he has forfeited his bond, reply "I’ll pay him fore’s day"; and again, in Dekker’s The Honest Whore (i, 2) Fustigo protests: "By this hand, I’ll discharge at my day."

Heywood’s legal experience must be even greater, for he is thus technical at least four times—thrice in one play:

Yet again, Dekker in his tract The Seven Deadly Sins of London (1606), says of his first type-character, "the politic bankrupt," that "he will be sure to keep his days of payment more truly than lawyers keep their terms"; and Jonson in The Alchemist (iii, 2) has: "take the start of bonds broke but one day." And, yet again, Nashe in Pierce Pennilesse says of Gabriel Harvey’s astrological brother that "his astronomy broke his day with his creditors." (Works, i, 196-97.) [56]

Sooth to say, the phrase had been current among the laity in the time of Langland, who (Piers Plowman, 2961 sq.) makes Coveteise tell how he seized the manor of a borrower "if he his day breke." And it would seem to have been no less familiar in the time of Caxton, since in the Morte Darthur we read "How that Sir Palomides kept his day for to have foughten" (Title of c. 88 of B. x). These trade secrets will out, somehow! Sir John Fortescue avows, about 1475, that the King’s creditors "defame his, highness off. mysgovernance, and defaute of kepynge of days" (Governance of Engliand, ch. v). Even the preacher knew about it. Roger Hutchinson in sermon (c. 1550) mentions that "the defendant’s office is, when he is summoned or cited, to appear at his day" (Second Sermon Of Oppression, &c.; Parker Soc. ed. of Works, p. 332).

In The Merchant of Venice however, "it appears further," by iii, 2, "that Antonio has been arrested on mesne process." The action for a pound of flesh, then, is dramatised by an English attorney’s clerk (if not by Bacon) in the light of his professional knowledge; and we are further told: "Antonio is made to confess that Shylock is entitled to the pound of flesh according to the plain meaning of the bond and condition, and the rigid strictness of the common law of England:

"All this has a strong odour of Westminster Hall." Since the Duke, as represented by Portia, after putting other "English" arguments does disallow the forfeiture as a criminal device, two contradictory views are thus alike homologated by the Lord Chief justice as "strict English law." And it would appear to follow that the Italian novelists from whom the tale is derived had the same "profound legal training" as shines forth in the drama. [57]

The trial, further, is "duly conducted according to the strict forms of legal procedure." That is to say, it was in the strict fashion of Westminster Hall (1) to let the Duke of Venice (who later announces that (2) he is going to "dismiss the court" failing the arrival of Bellario of Padua, "a learned doctor" whom he has "sent for to determine this"), begin (3) to abuse the plaintiff to the defendant before the case has been stated on either side. Portia is described (4) as "the Podestà or judge called in to act under the authority of the Doge" (which she is not), so that Bellario would on that theory take the same status. (5) Nevertheless the proceedings begin as aforesaid in Bellario’s absence. The Podestà theory, by the way, is illuminated by the fact that at the close of the proceedings the Duke (6) exhorts Antonio to reward Portia, i.e. the judge.

The business having been started by the Duke as aforesaid, (7) Shylock delivers in reply a psychological essay, and (8) Bassanio intervenes with invective in the capacity of a friend of the defendant, who (9) in turn conveys his opinion of the plaintiff’s character. After (10) this highly professional discussion has been further continued, (11) Nerissa, "dressed as a lawyer’s clerk," in strict Westminster Hall style presents a letter to the Duke; and (12) Bassanio, Shylock and Gratiano exchange amenities. (13) The letter is then read out by the Duke; with scrupulous attention to legal forms. It announces (14) that Bellario, the "Podestà," being ill, appoints a "young doctor" from Rome as his substitute, the Duke of Venice concurring as in duty bound; though (15) he thoughtfully inquires whether the substitute knows anything about the case. (16) He is assured that the substitute knows all about it—before having heard anything from the parties. (17) Portia, dressed as "a doctor of laws," then discusses moral issues with Shylock in a fashion which illustrates her profound acquaintance with Westminster Hall usage, the plaintiff (18) alternately [58] retorting and applauding, in Westminster Hall fashion. Portia’s line is (19) to urge the plaintiff to accept thrice his debt, knowing all the while that it is because of his refusal to do so that the case is, in court. On his refusal (20) she admits that he may "lawfully" have his pound of flesh, and (21) advises Antonio to prepare for the operationthere and then, at the hands of the plaintiff, as was the wont at Westminster Hall. Incidentally, (22) she intervenes in the conversation between Bassanio and Antonio with a jest—here, certainly, conforming to English legal usage—and Nerissa follows suit, ostensibly as clerk to the court; whereupon the plaintiff (23) rebukes the court for wasting time. (24) The court then develops the interesting legal theory that flesh does not, according to the vulgar notion, contain or include blood, and warns the plaintiff accordingly. (25) In reply to him, the court courageously alleges that an Act to that effect is in existence; proceeding further (26) to aver that the plaintiff must exact the whole penalty due under his bond, and will himself incur the capital penalty if he takes more or less. (27) Having thus already, in effect, non-suited the plaintiff, the court unexpectedly does it afresh, intimating that he has all along lain under the capital penalty, inasmuch as the laws of Venice—of which the Venetian authorities and public appear to have no knowledge—define his entire proceedings as homicidal; and further (28) that the same occult code awards half of his property to the defendant, and the other half to "the privy coffer of the State," whose interests have been so indifferently represented by the Duke.

The plaintiff is now advised to throw himself on the mercy of the Crown, which he contumaciously fails to do; but the Crown, now getting a word in, spontaneously remits the death penalty, and (having apparently some doubts as to the revelation just made concerning its fiscal privileges) suggests a substantial remission of the pecuniary [59] penalty so far as the State is concerned. (29) The defendant, however, intervenes with a somewhat obscure proposal that, he retaining his half of the plaintiff’s property, the plaintiff shall "let me have the other half in use, to render it upon his death" to plaintiff’s son-in-law; adding, "Two things provided more," to wit, (a) that "for this favour" plaintiff shall turn Christian, and (b) record a deed of gift, here in the court, of all he dies possessed," to his son-in-law and daughter. Defendant has justifiably taken for granted the assent of the court and Crown, which latter (30) accommodatingly intimates that plaintiff’s pardon will be "recanted" if he does not do as he is told. (31) With the same businesslike promptitude the plaintiff assents, and the court directs the clerk to "draw up a deed of gift." (32) The plaintiff is nevertheless allowed to withdraw, directing that the deed be "sent after him"; whereupon the Crown invites the court to dinner; adding, when the learned judge pleads lack of time, its celebrated suggestion to the defendant, to see that the judge is well paid. The courthouse then becomes the scene of domestic amenities, according to Westminster Hall practice.

And this "trial," we are told by a Lord Chief Justice, later Lord Chancellor, "is duly conducted according to the strict forms of legal procedure," whence arises a highly strengthened presumption that the dramatist was a practised attorney’s clerk. His lordship brilliantly concludes with the reflection that Gratiano’s speech:

is "an ebullition which might be expected from an English lawyer."

I should expect further ebullitions from any lawyer who should chance to peruse Lord Campbell’s pages. It is not too much to say that, apart from downright [60] Baconism, the theorem before us is the worst nonsense that has ever been penned in Shakespearean discussion, which is saying a good deal. I leave it to the lawyers to decide whether or not his lordship was writing with his tongue in his cheek; and I invite Mr. Greenwood to say on what critical principles he makes use of such a critic’s declaration that "to Shakespeare’s law, lavishly as he expounds it, there can neither be demurrer, nor bill of exceptions, nor writ of error." "There is nothing so dangerous," wrote Lord Campbell, "as for one not of the craft, to tamper with our freemasonry." It would appear that there are still more dangerous undertakings open to lawyers.

It may be worth noting in this connection that, as a legal friend of mine has put it, whosoever wrote the trial scene in The Merchant of Venice, it cannot have been Bacon, the equity lawyer. Mr. Devecmon and other lawyers have been so struck by the disregard of equity in Portia’s rulings as to be unable to refrain from severe censure of Shakespeare’s conception of justice. They in turn, in their revolt against the entire lack of true legal feeling in the play, have perhaps grown blind, by reaction, to the moral enormity of Shylock’s position. An equity lawyer, I suppose, would have set aside alike Portia’s "blood" argument and Shylock’s "bond" argument, and given simple decree for payment of the debt. We can imagine what Bacon would have thought of the theorem that if A lends money on condition of being allowed to cut off half a newly killed pig belonging to B, he cannot be permitted to cut off less than half, and is precluded from taking any blood. But whatever the equity lawyer might decide on the final merits, the playwright has in view an audience who—to say nothing of their primary prejudice against the Jew—were at least justified in regarding Shylock as a miscreant in the matter of the pound of flesh. And it is the utterly, unlawyerlike punishment of the miscreant for his intentions that [61] finally makes the legalist theory so completely preposterous in regard to this particular play.

As regards Shakespeare’s moral outlook in the matter, 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.

16. Portia’s phrase (V, i, 298),

is justly alleged to contain a "palpable allusion to English legal procedure." It does and so do the four other instances of the word in the plays. And so does Ariosto’s

in Webster’s The Devil’s Law Case (ii, 3) , And so does Gelaia’s "Slight, he has me upon interrogatories," in Ben Jonson’s Cynthia’s Revels (iv, 1). And so does Andelocia’s phrase in Dekker’s Old Fortunatus (iv, end): "Are you created constable? You stand so much upon interrogatories." And so does Black Will’s "You were best swear me on the intergat’ries," in Arden of Feversham (III, vi, 6). And so do Nashe’s phrases: "Let me deal with him for it by interrogatories" (First Part of Pasquil’s Apologie: Works, i, 115), and "Pilate’s interrogatory ministered unto him was, Art thou the King of the Jews?" (Ib. p. 129.)

And so does the question, "What are you, sir, that deal thus with me by interrogatories, as if I were some runaway?" in Greene’s Menaphon (Arber’s rep. p. 57). What then? Were these writers all lawyers?

17. The servant’s phrase, "present her at the leet; because," &c., in the Induction to The Taming of [62] The Shrew, is alleged to betray an "intimate knowledge of the matters which may be prosecuted as offences before the Court Leet, the lowest court of criminal judicature in England." It shows exactly such knowledge as was, in the terms of the case, necessarily possessed in every alehouse in England; otherwise Sly is presented as a tinker impossibly learned in the law. An even wider range of legal knowledge of the same order, as it happens, is exhibited by justice Overdo in Ben Jonson’s Bartholomew Fair (ii, 1). What is the inference there?

18. Because Tranio in The Taming of The Shrew (i, 2) remarks that

the Lord Chief justice is moved to observe that the dramatist "had been accustomed to see the contending counsel, when the trial is over, or suspended, on very familiar and friendly terms with each other." ‘Tis like! Ten thousand laymen have noted as much; and a hundred popular tales have been current from time immemorial which convey the fact from generation to generation. Similar lore, to a layman’s thinking, presumptively underlay the remark put by Dekker and Webster in the mouth of Mistress Justiniano in Westward Ho (i, 1), to the effect that she sleeps "as quietly as a client having great business with lawyers." But if that had been said in a Shakespearean play, what depth of legal experience would Lord Campbell not have found in it! What would he not have made, again, of the lines:

in the Witch of Edmonton (iv, 1), by Dekker, Ford and Rowley; or of the phrase, "They’ll hold no more than a lawyer’s conscience" in Dekker’s Match Me in London (Act i, end). If he had only read The Devil’s Law [63] Case (v, 2), he would perhaps have been content to stake his whole thesis upon one sentence of Sanitonella:

You have lawyers take their clients’ fees, and their backs are no sooner turned but they call them fools and laugh at them.

For Sanitonella is actually a lawyer’s clerk; and it clearly follows that the dramatist must have been one!