Sunday, June 5, 2011

Shakespeare a Lawyer? - 5 - Alleged Bad Law 2

Was Shake-Speare a lawyer?

Part 5

Specific Instances of Alleged Bad Law

I now list the principle instances of Shake-Speare's alleged bad law. The first three items are trial scenes. His one other trial scene, Falconbridge v Falconbridge, in which his law is accurate, will be discussed later.

1. The Merchant of Venice - the trial of Antonio

In this play Shylock lends money to Antonio on a bond which stipulates that, if he does not repay the money by the due date, Shylock shall be entitled to a pound of his flesh. Antonio's friend Portia dresses up as a male Doctor of Laws at the trial. She saves Antonio by pointing out that the bond does not entitle Shylock to shed one drop of Antonio's blood. So Shylock can only carve his pound of flesh if he can do so bloodlessly - an impossibility. All this is unabashed fantasy (based largely on Shake-Speare's source), and it is absurd to expect the trial to conform to English, Venetian or any other system of law, either in trial procedure or in substantive law. The trial is a travesty of a real trial and was never intended to be anything else. So it is hardly worth canvassing its alleged errors of law but I will notice briefly what appear to be the three main criticisms or at any rate the most specific:

(a) In 1.3.140-1 Antonio is invited to sign a "single-bond", and not a bond upon a condition which (the critics suggest) the bond is. In fact (I quote Keeton (see previous post) p. 136) "The bond was single in the sense that it contemplated a specific action, the repayment of the loan, to which there was attached a penalty for non-compliance. This is not a conditional bond". The reason is that a penalty is not a condition. A conditional bond was a bond with a condition attached to it that if the person bound did some specific act, the bond should be void. An example is a common recognizance in which a person binds himself to pay a certain sum of money to H.M. the Queen, 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. It has been said too that a bond without a surety could also be described as a single bond. If so, Antonio's bond was a single in this sense as well. I would guess that this was the sense Shake-Speare had in mind.

(b) At the end of the trial Shylock agrees to execute a Deed of Gift conveying all he may possess on his death to his daughter and son-in-law. It has been objected that in English law a Deed of Gift could only convey existing property, not after-acquired property. The instrument should have been called a Will, as Bacon, Shake-Speare or anyone else would have known. But a Will could have been revoked by Shylock at any time, whereas a Deed of Gift was normally irrevocable. So Shake-Speare probably called it a Deed of Gift to create the impression that Shylock would be bound irrevocably.

(c) A sub-plot in the play is the story of the caskets, borrowed by Shake-Speare form his source. By his Will Portia's father directs that each of her suitors is to try for her hand and dowry by choosing among three metallic caskets, and if unlucky in that lottery must for ever renounce marriage. It has been argued in all seriousness that Shake-Speare cannot have been a lawyer because the relevant clause in the Will would have been a provision in restraint of marriage unenforceable in English Law!

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