Popular Science Monthly/Volume 20/January 1882/The Anatomy of an Old Anecdote
|THE ANATOMY OF AN OLD ANECDOTE.|
IT is a matter of common knowledge that Shakespeare's story of the bond for a pound of flesh is not of his own invention, but is merely a modern and dramatic version of a very old tale which, with slight but frequently significant variations in form, had already become the common property of many nations, East and West.
Even though these legendary antecedents of the drama had never been actually discovered, their existence could nevertheless with great confidence be affirmed; for in no other manner can we account for the singular and unconscious fidelity with which the anecdote illustrates legal conceptions highly characteristic of primitive ages, but alien to that in which Shakespeare lived.
The scientific value of a good story as a clew to the institutions, the intellectual and social life of the people among whom it originated, or in whose hands it has undergone modification, is now so well understood that to collect, anatomize, and interpret recently despised folklore, romances, anecdotes, and ballads, is a recognized function of modern scholarship.
The story of the bond is not only one of great inherent interest and scientific value it is rendered doubly attractive as an object of study by the fact that a correct apprehension of its original meaning constitutes an excellent preparation if not an indispensable condition to a sound analysis of Shakespeare's play; to a discovery of the motives through which, as poet and playwright, he was led to select the story for the purposes of his art, and to a correct understanding of the many passages by which with admirable skill he sought to conceal or evade the annoying discrepancy between the ideas out of which, in the barren soil of a very remote antiquity, the story originally grew, and those of the civilizations into which it was afterward transplanted. The inadequacy of the treatment which the anecdote has hitherto received is forcibly illustrated by an article in a late number of the "Nineteenth Century," in which Moncure D. Conway essays to unfold the principles lying at its root. Mr. Conway precipitately assumes that it is the product of theological conceptions, and, by confusing it with purely religious Hindoo legends, designed to inculcate the virtue of self-sacrifice, forecloses at the threshold of his inquiry all hope of conducting it to a successful issue.
He regards it as one of the earliest fables concerning the ever-conflicting principles of retaliation and forgiveness. To him Shylock is Indra tearing Vishnu's breast; Elohim demanding Isaac's death; the First Person exacting the Second Person's atoning blood. Antonio stands for the Christ, the forgiver, the sufferer. Antonio suffering for Bassanio is the just suffering for the unjust. The representative figures of the Venetian court-room are only transformations from the flying doves and pursuing hawks, bound victims and exacting deities of ancient mythology. Portia is that human heart which in every age, amid hard dogmatic systems and priestly intolerance, has steadily appealed against the whole vindictive system, whether Jewish or Christian. She is made to assume the ermine because, with his wonted felicity, Shakespeare perceived that the genius of this human sentiment, slipping through the technicalities of priest-made law, could be most fitly impersonated by a woman.
Now, while we can not concede the soundness of this interpretation, it is justly entitled to the praise which next to a positive indorsement will be most gratifying to one of Mr. Conway's philosophic turn of mind, that it is so palpably and almost comically unsound as to be perfectly harmless. It so obviously rests upon a systematic belittlement of the essential and exaggeration of the non-essential in the story, that, though interesting reading for all, there is little danger of its misleading any.
The widely diffused story of the bond originated in strictly legal conceptions. It embalms in an excellent state of preservation several interesting phases of early law.
Whether it is the record of an actual occurrence, it is alike immaterial and impossible to determine. Certain it is that both the facts and the law of the case are substantially historical. They precisely represent views concerning contract, criminal liability, and law reform, which, however absurd they may appear to us, have widely prevailed, and must be regarded as characteristic of certain early stages of intellectual development. In the bond itself, as it was regarded by the interested parties, we recognize the substance of the debtor's life-pledging contract which filled so large a place in the commercial economy of ancient societies. As a means of securing the payment of debt, the pledging one's life and the lives of the members of one's family, in the history of many races, preceded in order of development the pledging of property—the right to legal process against the person likewise becoming established as a means of collection before process against property was known to the law. It was so with the Romans. The persons, the lives, of the debtor and his family were long considered by them as the creditor's normal security. It was fully four centuries from the foundation of the city before the Roman creditor was entitled to resort, without the debtor's consent, to any portion of the latter's property except such as had been delivered to the creditor in pledge. It would be interesting to inquire why remedies against the person thus preceded those against property; and, though too remote and obscure a problem for treatment here, we may hazard, in passing, the conjecture that the explanation is to be found in the generally communistic form of primitive property. When all property was vested in the village tribe or gens, the individual really had nothing he could call his own except himself and his family. The idea that the creditor's remedy was exclusively against the person, being thus engendered, would, through the sluggishness of the primitive intellect, continue to subsist long after its original cause had been removed by the institution of individual property. Again, the whole structure and theory of early society was such as to give credit and currency to measures which, while perhaps not legally charging the minor social and proprietary organisms with debts contracted by their constituent individuals, might yet be employed by the creditor of an individual to force the organization to aid its defaulting members. Such was doubtless one theory upon which the unconscionable power of the creditor over his debtor was upheld. It operated as a harsh and awkward leverage by which the creditor could reach the property, not only of the debtor, but of his sympathizing relatives and friends. However this may be, the power of the creditor was habitually pushed to such merciless extremity that indescribable hardships befell the debtor class in all the early civilizations. It is true that within historic times the creditor, in many instances, derived the authority for his atrocities, not from the stipulations of his contract, but from general provisions of law. The Roman law, under which a creditor could, at his option, put his defaulting debtor to death or sell him as a slave into a foreign land, and the several creditors of an insolvent could hew his body in pieces and divide it between them, is a fair example of the almost incredible inhumanity of the early law toward this unfortunate class.
The traits of character and the social conditions which led to the toleration of such laws, it would not be difficult to specify, for, though numerous, they are by no means obscure. But in this instance, as with all irrational customs, laws, or beliefs, the secret of their maintenance is a very simple matter compared with the mystery of their first cause. Assuredly it is hard to distinguish in the mere fact of indebtedness, in the simple relation of debtor and creditor, anything which could have suggested the investment of the creditor by law with the unnatural power which we find him enjoying. That power, it is far more reasonable to suppose—indeed, the supposition affords the only plausible explanation of it—was originally claimed by the creditor as Shylock claimed his pound of flesh, only by virtue of the condition of his bond; only through the debtor's express concession of it at the time of incurring the debt. In the history of debtor and creditor, back of all life-forfeiting laws there must have been life-forfeiting contracts; the former being the outgrowth of the latter. That such stipulations after becoming a customary clause in contracts, would have a tendency to crystallize into law, is aptly illustrated in the law of Scotland. It is shown by Lord Kaims that such has been precisely the history of imprisonment for debt in that country. Originally unknown, it was at first introduced by the debtor's agreement that, in case of default, process might issue against his person. The courts recognized the validity of such agreements, enforced them, and ultimately fell into the habit of allowing the remedy, without inquiring whether it was authorized by the contract or not.
Having thus noted the essentially historical character of the life pledging contract, it is to be remarked that its legal recognition carries us back to the time when the right of contract was comparatively free from limitations as to its subject-matter. Under matured systems of jurisprudence a great variety of agreements are denied legal recognition, on the ground that their performance would involve a violation of law, or would be incompatible with good morals or public policy. But the catalogue of agreements thus condemned was originally very meager. Though it is probable that from the earliest times the law may have refused to enforce a few contracts of a grossly criminal character, it was only gradually that the broad principle was evolved that one can not legally obligate himself to the performance of an unlawful or immoral act, or an act inconsistent with public policy.
The story of the bond for a pound of flesh not only speaks to us, through the atrociousness of the contract, which was held valid, of the former feebleness and obscurity of that principle; it also affords an example of the curious indirection through which at first the principle usually ventured to assert itself. For, in all its forms, the story points to a society or a stage of development in which the law, while conceding the validity of the life-pledging contract, regarded it with great disfavor, and, in the interest of advanced views of morality and public policy, was seeking its overthrow.
Many versions, including Shakespeare's, represent the judge as affirming the validity of the bond, and the right of the creditor to take the stipulated flesh, and at the same time as declaring a forfeiture of all his estate for simply proposing so to do; a laughable incongruity, so utterly repugnant to existing legal views, and so strikingly representative of the methods of early law, as to constitute one of the most curious features of our anecdote. For, even when ancient societies sought to discourage contracts made in contravention of law, morals, or public policy, it was their practice not to deny their validity but to rely for their suppression upon penalties denounced against parties who should enter into them. This indirect method of reform was eminently characteristic of such societies, and the evidences are abundant of its application to all branches of the law.
The conservatism of such communities was so controlling that, when, through changed social conditions, a modification of existing law became unavoidable, the tendency was, while adhering nominally to the old law, to inflict penalties upon or in some way obstruct those who attempted to assert rights under it; an expedient whereby the effects of amendment might be obtained without a confessed abandonment of ancient principles. The proverbial unchangeability of the laws of the Medes and Persians represents only in aggravated form the extreme aversion to change almost universal in early societies; and the effectual manner in which the unchangeable proclamation of King Ahasuerus for the extermination of the Jews was annulled by his subsequent decree, declaring it lawful for them to defend themselves, is not a bad example of the tortuous method of reform which we are now considering. Another example equally in point is afforded by the history of the doctrine of jurisdiction. In Europe certainly, and probably elsewhere, the jurisdiction of courts was originally voluntary. They tried causes only in the presence and with the consent of both of the litigating parties. It would have been regarded as an unwarrantable encroachment upon the liberty of the citizen for a court to entertain a controversy at the solicitation of the complainant only, and without the express consent of the defendant. This theory of jurisdiction disappeared in the different nations of Northern Europe at an early or late day in proportion to the strong or weak influence of the Roman law, and remained unshaken in England until within a century. At a very early day the principle was perceived to be inconsistent with the maintenance of social order. But, instead of renouncing it in favor of the rule since adopted, that the service of citation upon the defendant shall confer jurisdiction whether he consent or not, the old doctrine was rigidly maintained, and outlawry, forfeitures, and attachments were resorted to, to compel the defendant to signify his indispensable consent. If, in spite of these severe measures, the jurisdiction was still resisted, the court remained powerless to proceed.
The historical as well as the dramatic interest of our story culminates in the celebrated quibble through which the judge, after dispelling the forlorn hopes and realizing the worst fears of the debtor by sustaining the validity of the bond, suddenly puts an entirely new and happy face on the transaction. He says:
This bond doth give thee here no jot of blood;
Then take thy bond; take thou thy pound of flesh;
But, in the cutting it, if thou dost shed
One drop of Christian blood, thy lands and goods
Are, by the laws of Venice, confiscate
Unto the state of Venice.
Shed thou no drop of blood, nor cut thou less nor more,
But just a pound of flesh; if thou tak'st more
Or less than just a pound—be it but so much
As makes it light or heavy in the substance
Or the division of the twentieth part
Of one poor scruple—nay, if the scale do turn
But in the estimation of a hair—
This play upon words is so transparently illogical, that while the righteousness of the end might in a romance he held to justify the absurdity of the means, the modern mind, and particularly the legally trained mind, intuitively shrinks from accepting it as the bona fide judgment of any court; a fact which, as we shall hereafter observe, is the key to the later modifications of the story. And yet nothing could be more suggestively true to nature and history than that a judge of the remote age from which this story is inherited, in struggling to assert against an old and harsh rule of law more recently developed sentiments of humanity, should seek the accomplishment of his purpose through a play upon words.
There is a popular superstition that such exercises are still the delight of lawyers; but the truth is that, in this age of highly developed rational faculty, a quibble has neither friends nor function, and is an object of universal contempt. There was a time when it was not so. A volume might be and indeed ought to be written upon the astounding and universal susceptibility to quibbles which characterized the ancient mind until Aristotle in Greece and Seneca in Rome. All literature, legal, philosophic, and religious, was sadly disfigured by them. The proneness of the really primitive mind to indulge in them is well known: it is not so generally appreciated how late it was in the history of intellectual development before the infirmity was outgrown. Even the imperial intellect of Plato, the life-long enemy of the professional sophist, staggered visibly and habitually under the influence of this sort of sophistical taint. Among the laws governing the concurrent evolutions of thought and language, there is one not yet fully definable, but unmistakably discernible in its effects, by which for ages the human mind was irresistibly addicted to the drawing of irrational verbal distinctions or analogies. Nor does the modern mind display in any respect a more marked contrast with the ancient than in its keenness to detect and swiftness to repudiate everything in the nature of a quibble. No one, for instance, would now admit that, conceding Shylock's right to the pound of flesh, he should be held to incur death if, waiving a part, he took less than was called for by his bond. Yet that such a quibble was not always impossible, but is probably historical, must be inferred from the fact that the laws of the Twelve Tables, after authorizing the creditors of an insolvent to divide his body between them in the proportion of their respective claims, expressly provides that no creditor shall incur liability by taking, without bad faith, either more or less than his share. Whether this protection to the creditor taking less than his share was, as seems probable, enacted in settlement of an old and mooted question or only in anticipation of a new one, it is in either event highly significant as having been thought necessary in order to preclude just such a construction of the law as the judge in our story placed upon the bond.
Nor was the quibbling infirmity without its compensations. In the domain of law, at least, it had substantial functions, and paved the way to reforms otherwise unattainable. We have already had occasion to notice why ancient societies required methods of reformation not in volving an avowed abandonment of established rules. To leave such rules nominally intact, and at the same time to indefinitely curtail or enlarge their operation by the withdrawal or addition of particular classes of cases through judicial construction, was a mode of legal amendment eminently adapted to the genius of such communities, and fruitful of many beneficent modifications of the law. It was a matter of minor consequence whether such modifications were effected by sound arguments or quibbles. In an age habituated to the amendment of law by legislation, nothing can be said in defense of the vicious practice of judicial quibbling. However faulty existing law may be, legislation is the appointed, effective, and only appropriate agent for its reformation. But, during the ages when men were as ignorant of the processes of legislation as they were implacably hostile to the theory of innovation upon which nearly all legislation proceeds, the only alternative was between an absolutely unprogressive condition of the law and an effort to bring it into harmony with the requirements of an ever-advancing society by a resort to such methods of amendment, however vicious or clumsy, as had then been efficiently evolved. The reform of law by judicial construction, however forced and illogical, being a much more familiar and agreeable process than amendment by legislation, the art of quibbling, of drawing distinctions where there was really no difference, and of detecting resemblance though there was no essential similitude, was employed with no inconsiderable effect in contracting or enlarging the operation of legal principles; and, exercised, as it usually was, in aid of the finer sentiments and more advanced conditions of a later age, against the crude customs of an earlier, was an important factor in legal development. The agencies by which early societies modified their law and which discharged imperfectly, indeed, yet almost exclusively, the functions afterward discharged by equitable construction and still later by legislation, have been fitly grouped together under the common name of legal fictions. Sir Henry Maine, in adopting such a classification, explains that by a legal fiction he means any assumption which conceals or affects to conceal the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified. Now, a judicial quibble was a kind of legal fiction—a product of the same conditions and charged with the same functions as legal fictions generally. That is to say, it was a thin disguise, under which, owing to the prevailing laxity and vagueness of current intellectual processes, reforms could be introduced without actively antagonizing the conservative propensity.
While amplifying the historical suggestions of our story, we must not ignore the interest attaching to the circumstance that the quibble employed by the judge was one which, though inspired by a desire to defeat the forfeiture, took effect not through an impeachment of the bond's validity, but in such a definition of the remedy upon it as was calculated to discourage its enforcement. It thus represents the very marked propensity of early societies to assail an obnoxious legal right indirectly through its remedy; impairing the latter either by regulations making a resort to it difficult or impossible, or by encumbering its exercise with stringent and technical limitations, the nonobservance of which would subject the party to heavy penalties.
It is in this tendency that we find the key to much that is otherwise unaccountably harsh, technical, or absurd in early judicial remedies and procedure. Whenever any recognized legal right came to be regarded as unconscionable or otherwise objectionable, rules adapted to hamper or imperil the complainant in the pursuit of his remedy were sure to spring up. Procedure, instead of being shaped as now with an eye single to the ascertainment and enforcement of the rights of litigants, was therefore frequently designed to render those rights nugatory; and, as the latter function was often more influential than the former in molding the procedure, so they were both at times overshadowed by such a regulation of remedies as would be most likely to frighten both parties out of court and into an amicable adjustment of their differences. We find ample illustration in the history of the law of distress. The right of a creditor to seize without legal process the goods of his debtor in satisfaction of his claim, which once so widely prevailed, may be said generally to have fallen a victim to the constantly increasing technicality of the procedure regulating its exercise. The value of the right was destroyed by the technicality which its harshness had induced; so that creditors were usually glad to abandon the right before it was taken from them. It was, as has been well said, a kind of two-edged sword. "You might bring your adversary to the ground by it, but you were extremely likely to injure yourself. For, unless the complainant who sought to distrain went through all the acts and words required by law with the most rigorous accuracy, he, in his turn, besides failing in his object, incurred a variety of penalties which could be just as harshly exacted as his own original demand."
In like manner, and in deference to the same conservative propensities heretofore noted, an irrational rule of procedure was often adopted in order to preclude the exercise of unconscionable privileges by a defendant. Such, for example, was the origin of that disgraceful rule of English law which so long denied to persons accused of felony or treason the benefit of legal aid in making their defense. The English law of crimes and criminal procedure became at a very early stage in its history so excessively technical as to render it intolerably difficult to secure conviction in the face of a skillful defense. In obviation of this difficulty, the rule now is, that the proceeding shall be vitiated only by such inaccuracies as are substantially prejudicial to the accused. But the conservative tendency was formerly too strong to admit of this curtailment of the defendant's rights.
He must not be denied the right to immemorial objections, however irrational. But he could be hampered in the exercise of the right, and, as the most effective expedient for that purpose, he was denied the legal aid through which alone he could ascertain what his rights might be; and such was unquestionably the origin of the rule forbidding defense by attorney.
It is now reasonable to assume that the story of the bond was the product of the crude legal notions with which we have found it to be so replete. It is not within the scope of our inquiry to exhibit the bearings which this view of the story's origin may have upon its Shakespearean interpretation; but, that it casts strong light upon the latter subject, we have now occasion incidentally to point out.
The most noteworthy circumstance in the modern history of the story is its transformation into a comedy; no flavor of humor being discoverable in what were probably its earliest forms. It had already undergone this metamorphosis when it came to Shakespeare's hands. Italian predecessors of our poet, in adapting the story to their own civilization, recognized the absurdity of ascribing its obsolete legal notions to their own courts. To avoid so glaring an anachronism, they substituted, for the legitimate tribunal of the old story, an irresponsible mock court or make-believe judge by whom, without impropriety, the law of the story could be enunciated as a solemnly disguised jest. Henceforth the subject belonged of right to the comedians. Of all the legal conceptions embodied in the story, scarcely one could have emanated from a Venetian court; nor, indeed, when properly understood, do they purport so to do: they all without exception being transparently exhibited not as good law, but as the curious conceits of a playful and ingenious woman.
The graceful pleasantry which Shakespeare, following the Italians, has freely and deftly interwoven with the incidents of the original tale, avouches his realization of the radical change which had been wrought upon it by the unavoidable introduction of the mock court. He not only garnished it profusely with humorous passages, but, as Mr. Conway reminds us, produced it as a pronounced comedy in his own theatre. The fact that, notwithstanding this, the world has finally settled down upon a serious or pathetic interpretation of Shylock's character, and of the trial-scene, and exhibits a disposition, by repudiating the last scene of the play and by a variety of other expedients, to exorcise the comedy element, is certainly a high tribute as well to the irrepressible charm and dramatic quality of the old form of the story as to the overmastering power with which Shakespeare has told it. Whatever may be the merits of the reactionary or tragic interpretation, it has been largely facilitated by a vague assumption that Portia, though a usurper of the judicial office, might be, and, within the spirit of the play, ought to be regarded as a reasonably sound expositor of the Venetian law, and it is doubtful whether it would have been possible, had the public generally known as well as did Shakespeare and the Italians, that the mock court was improvised only because the time had long since passed when the law of the case could be plausibly credited with recognition in a legitimate tribunal. For, this being so, old Shylock, in the drama, through all the absorbing vicissitudes of the trial-scene, is as certainly the victim of a clever and frolicsome deception as was poor Christopher Sly, when, with manifold misgivings, he suffered himself to be persuaded that he was a lord, indeed, and not a tinker. It must, therefore, be admitted that the comic cast given to Shakespeare's Shylock by his early impersonators was not entirely inappropriate to so gullible an old Israelite as he proved himself to be.