Law and literature go hand in hand

by Justice P.H.K.Kulatilaka

Most of us who started schooling in the nursery class will remember with gratitude how happy we were then to give our ear to the sweet voice of our class teacher delightfully singing Lewis Carroll’s Humpty Dumpty:

Humpty Dumpty sat on a wall.

Humpty Dumpty had a great fall.

All the king’s horses,

And all the king’s men

Couldn’t put Humpty together again’

Those good old days when we were studying English literature in the higher class at school our teachers made us memorise Shakespeare.

There were others as well. H.W. Longfellow, William Wordsworth and John Milton were some of them. We were compelled to read the Plate of Gold a collection of golden poems.

Criminal cases

When I entered the legal profession I was pleased to watch the senior lawyers of repute appearing in the Superior Courts quoting from English poets to attract the attention of the Justices or may be even to impress the judges of their prowess in other areas such as classics as well.

I had just joined the Attorney General’s Department as a counsel for the State. It was the era when the Supreme Court Judges were sitting as Judges of Assize to hear criminal cases.

A senior counsel while referring to a forged document said, ‘My Lord it is a palimpsest’.

I had not come across this word before.

I thought the judge knew it. During the adjournment he wanted me to see him in chambers with the dictionary.

Those who enjoyed reading Shakespeare will never forget the funeral oration of Antony on the death of Julius Caesar beginning;

‘Friends, Romans, countrymen, lend me your ears.

I come to bury Caesar, not to praise him’.

English judges used citations from English poets and writers to embellish their judgments.

Lord Denning in his book ‘The Closing Chapter’ in describing the immunity enjoyed by the trade unions found an analogy in Shakespeare’s Measure for Measure’ which is to the following effect:

‘O, it is excellent

To have a giant’s strength, but it is tyrannous

To use it like a giant’.

On the other hand, the English poets in their works have regarded the sword as the symbol of justice. William Dunbar as far back as 1500 writing in honour of the City of London says,

‘Thou famous Maine, by princely governance,

With sword of justice thee ruleth prudently ‘.

In his King Henry IV Shakespeare thought it appropriate to consider the sword as a symbol of justice.

King Henry when he was Prince of Wales was an unruly young man. The Lord Chief Justice of the King’s Bench committed him to prison for an unruly act. When he became the King it was thought that he might dispense with the services of the Chief Justice. Shakespeare put the following wise words to the mouth of the

Lord Chief Justice:

‘...Trip the course of law and blunt the sword,

That guard the peace and safety of your person’.

Taking the Chief Justice’s wise words the King gave the following assurance.

‘...you did commit me,

For which I do commit into your hand

The unstained sword that you have us’d to bear,

With this remembrance, That you use the same,

With the like bold, just and impartial spirit

As you have done against me ’.

It was around 1780. A Roman Catholic was arraigned before Lord Mansfield for making an opinion with respect to a particular mode of worship was acquitted by the jury. Rumours spread that the judge was a Papist.

The mob consisting of Protestants was furious and set fire to his library. When his house was attacked Lord Mansfield escaped through the back door.

Poet Cowper who felt sorry lamented thus:

‘O’er Murray’s loss the Muses wept,

They felt the rude alarm,

Yet bless’d the guardian care that kept,

His sacred head from harm…

The lawless herd, with fury blind,

Have done him the cruel wrong.’

In her article titled ‘Fiction and Poetry in Judgments’ published in JSA, Law Journal 2013 Volume 1 Magistrate Chanima Wijebandara mentioned of a judgment by Doherty AJ in ‘State v Guta’ of the National Court of Papua New Guinea where reference was made to the Russian born novelist Vladimir Nabokov’s Lolita in order to highlight the gravity of the crime committed by the accused.

The pound of flesh

I have seen our judges seeking to persuade the lawyers to arrive at a settlement in civil cases advising them to tell their clients not to ask for ‘a pound of flesh’.

That springs from the Shakespeare’s much loved and spoken of drama The Merchant of Venice. Drama lovers adore it.

It would not prevent me from having a clinical approach wearing lawyer’s glasses for the reason that it portrays the most dramatic trial scene in all English literature.

The Merchant of Venice was set in the City State of Venice of 1598.

Her glories were much spoken of as a vital centre of commerce, more so of maritime trade.

William Wordsworth’s sonnet On the Extinction of the Venetian Republic described how once she held the gorgeous East in fee and was the safeguard of the West.

The rich merchant princes of Venice led a life of pomp and ceremony.

Culture

They patronised culture and fine arts. Shakespeare says that it was at Rialto that they congregated, town by the marble bridge,

The major portion of the sea going trade was in the hands of the merchant princes of Venice. Invariably Venice had much to do with commercial transactions.

The Bard lived in London around the same time. He was conversant with the surety bonds, how to pledge some one’s credit, risks involved in the sea going trade etc.

During that time the English commercial law was very much the same.

Albeit, Insurance law whereby the insurer undertakes to indemnify the assured to the extent agreed against marine losses had not been developed.

Shakespeare describes the nature of marine risks involved in the sea going trade through Shylock the Jew, when Bassano asked him whether he was prepared to accept the merchant prince Signor Antonio who would pledge his credit as suitable.

‘my meaning in saying he is a good man is to have you understand me, that he is sufficient.

Yet his means are in supposition, he hath an argosy bound to Tripolis another to Indies, I understand moreover upon Rialto, he hath a third at Mexico, a fourth for England, and ventures he hath, squandered abroad.

But ships are but boards, sailors but men, there be land rats and water rats water thieves and land thieves, I mean pirates and then there is the peril of waters, winds and rocks.

The man is not withstanding, sufficient. Three thousand ducats. I think I may take his bond’.

All in all, Shakespeare creates not an ordinary money lender but a professional one in Shylock. No doubt the audience would be mesmerised by Shylock’s shrewdness.

Shylock squandered suffering for being a Jew and for been ridiculed by Antonio

Shylock

‘Signor Antonio, many times and oft

In the Rialto you have rated me

About my money and usances;

Still I have borne it with a patient shrug,

For sufferance is the badge of all our tribe’.

A modern day critique would have despised such a behaviour from Antonio.

Even though he was prepared to accept Antonio’s suitability as to his credit he was well conscious that Antonio’s means were ‘in supposition’.

That is to say at risk. Shylock the Jew is the pleader at the trial.

Bassino, suitor to Portia

Bassino was the link character that brought his friend Antonio the pleader and Antonio the respondent before the judge [Duke] for judgment.

Bassino was not a model lover like Romeo who was madly in love with Juliet. He was an easy going fun loving young man. He was a suitor to fair Portia along with other suitors. He speaks his mind to his erstwhile friend Antonio thus -

‘O my Antonio, had I but the means

To hold a rival place to one of them…

I should questionless be fortunate’.

Like all the merchant princes of Venice, he was extremely rich.

He owned a number of ships of rich lading in Tripolis, Indies, Mexico and England as spoken to by Shylock.

Albeit, they were ‘in supposition’. Open to marine perils such as perils of the seas, pirates rovers, thieves and rats.

Bassino was in need of money to win over fair Portia. No lender would lend him any money on his own credit. Shylock was ready to lend money on Antonio’s credit. Bassino was a spendthrift.

His plea to his friend was ‘ lend me more and I’ll repay all’. He recalled his childhood archery when he ‘had lost one shaft, I shot his fellow of the self- same flight’.

Portia the cynosure

She was a rich heiress with many suitors. Bassino was one of them. The latter wanted to raise three thousand ducats from Antonio to stand rival to other suitors.

Antonio had no money to give him for his wealth had been invested in marine trade. He was not going to displease him.

“...Try what my credit can in Venice do

That shall be rack’d ,even to the utmost

To furnish thee to Helmont to fair Portia’.

When Antonio met Shylock to state his willingness to be bound for Bassino he reminded him of how Antonio had rebuked him in the past.

“...Fair sir, you spit on me on Wednesday last;

You spurn’d me such a day another time

You called me dog and for these courtesies

I’ll lend you this money’.

Antonio knew that Shylock was to lay down strict terms yet he agreed.

“But lend it rather to thine enemy,

Who if he breaks, thou mayst with better face

Exact the penalty’.

Shylock insisted on a notarial execution of the bond and terms were stipulated as he wished. It included a penalty clause. Shylock speaks of it thus -

‘...If you repay me not on such a day,

In such a place in such terms or sums as are

Expressed in the condition, let the forfeit

Be nominated for an equal pound

Of your fair flesh to be cut off and taken

In what part of the body pleaseth me ‘.

Antonio knew that forfeiture clause was going to be fatal yet for the sake of his friend Bassino he was ready to be bound.

Antonio said,

‘But lend it rather to thine enemy,

Who if he breaks thou mayst with better face,

Exact the penalty.

...I’ll seal unto this bond’.

Thus the bond was entered into between Antonio and Shylock.

The cause of action had accrued

Antonio’s expectations were, to put it in his own words –

‘Come on, in this there can be no dismay;

My ships come home a month before the date’.

Albeit it was not to be. News came through the messenger Salerio that Antonio’s ships were lost. Antonio was well aware that the forfeiture was complete as soon as the due date had gone past without payment. He expressed his fears to Bassino –

“Sweet Bassino, my ships have miscarried, my creditors grow cruel, my estate is very low, my bond to the Jew is forfeit; and since in paying it is impossible I should live...”.

Forfeiture was complete as Bassino failed to pay back before the due date and cause of action had arisen for Shylock to make his claim as per bond. He spoke out his mind thus –

“...If a Jew wrong a Christian what is humility? Revenge. If a Christian wrong a Jew, what should be his sufferance be by the Christian example? Why, revenge.

The villainy teach me I will execute, and I shall go hard but I will better the instruction’.

Inducing settlement

Fair Portia was sad when she heard of Antoino’s plight because of Bassino’s fault and she offered to pay any amount to save Antonio -

“Pay six thousand , and deface the bond

Double six thousand, and then treble that,

Before a friend of this description

Shall lose a hair through Bassino’s fault’

Shylock was well aware that his position was impregnable and that his action was stricti juris. He refused to hear Antonio. –

“I’ll have my bond I will not allow thee speak

I’ll have my bond, and therefore speak no more...”

Antonio was well aware that the law was against him.

“The duke cannot deny the course of law

For the commodity that the strangers have

With us in Venice, if it be denied

Will much impeach the justice of of his state.

Since that trade and profit of the city

Consisteh of all nations’.

The trial

Antonio the debtor was arrested and brought before the judge [ Duke] in the custody of a gaoler.

It is interesting that Shakespeare made Portia to play a dual role as a doctor of laws the advocate for Antonio and judge [Duke] as well.

The proceedings began thus.

Advocate addresses his client – ‘Do you confess the deed’.

Antonio – ‘I do’.

Shakespeare was quite conversant with the English Common Law principles of mercy.

Thus Antonio’s advocate [Portia] on behalf of her client pleaded mercy and made a beautiful address which had caught the ears of the legal fraternity.

“The quality of mercy is not strained.

It droppeth as the gentle rain from heaven

Upon the place beneath; it is twice blest.

It blesseth him that gives and him that takes

It is mightiest in the mightiest; it becomes

The throned monarch better than his crown…’,

Unfortunately Shylock insisted on justice.

‘my deed upon my head I crave the law

The penalty and forfeit of my bond’.

Shylock point blank refused Bassno’s offer to tender Shylock in court ‘twice the sum’

I will be bound to pay it ten times ov’r

On forfeit of my hands, my head, my hand…’.

‘A Daniel come to judgement’

The Judge [Duke] stated the law in Venice in the following terms –

‘It must not be, there is no power in Venice

Can alter a decree established

It will be recorded for a precedent,

And many an error, by the same example,

Will rush into the state; it can be’.

In making his judgement the judge was keeping to the principles of strict juris and strict doctrine of precedent prevailing in Venice. This pronouncement of the law made Shylock to be happy as ever.

“Shylock ‘A Daniel come to judgement, yes

A Daniel.O, wise young judge’.

At this point Antonio’s lawyer, doctor of laws wanted to look at the bond Whereupon he reiterates that in the following terms.

“Shylock, there’s thrice thy money offer’d thee’.

Shylock still reused to change his mind and prayed for judgement.

Judgment

Giving judgement as prayed for by Shylock ‘wise and upright judge’ addressed Antonio thus ‘you must prepare your bosom for his knife’.

To which Shylock added’ nearest his heart’, those were the very words’

It was to the following effect.

‘A pound of that same merchant’s flesh is thine;

The court awards it, and the law doeth give it.

And you must cut this flesh from off his breast;

The law allows it, and the court awards it’.

It was a breathtaking moment. The peak moment. Shylock informed court that the balance was ready to weigh ‘ the flesh’. Thereafter, the judge giving his judicial mind as to the manner in which the judgement was to be executed made the following pronouncement which pushed Shylock from heaven to hell.

“Therefore, prepare thee to cut off the flesh.

Shed though no blood; nor cut thou less nor more;

But just a pound of flesh, if thou cut’st more

Or less than a just 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,

Thou diest and all thy goods are confiscate’.

That finally sealed poor Shylock the Jew’s fate.

Ultimately Shylock pleaded mercy to save his life. He did get ‘ the mercy of the Duke’ on condition he became a Christian leaving all his belongings the daughter Jessica.Would the judgement be different had Shylock was a Christian?

This writer is a former Director of the Sri Lanka Judges Institute