Francis Bacon's Hidden Hand in Shakespeare's The Merchant of Venice

A Study of Law, Rhetoric, and Authorship

Christina G. Waldman

Certainly it partakes of a higher science to comprehend the force of equity that has suffused and penetrated the very nature of human society.—Francis BacoN, Aphorismi

Francis Bacon's Hidden Hand in Shakespeare's 'The Merchant of Venice'
Francis Bacon's Hidden Hand in Shakespeare's The Merchant of Venice, available from Algora Publishing


Preface (pp. 1-4)

   In 1597–1598, law students at one of the Inns of Court were being “victimized by smooth-talking scoundrels who induced them to give bond for large sums of money.” In Star Chamber, Lord Burghley (William Cecil), who relished imaginative punishments, proposed ordering playwrights to write a comedy about the problem in order to shame the parents of the students into paying closer attention to their sons’ financial accounts.1 

    Would it be so far-fetched to propose that Burghley’s nephew, a court insider and member of an Inn of Court (Gray’s Inn), may have answered the call by writing — perhaps with others — The Merchant of Venice?

    I am speaking, of course, of Francis Bacon, the visionary genius to whom the modern world owes a greater debt than is generally recognized. His acknowledged writings alone fill fourteen volumes. His chief concern was not fame or glory but the betterment of mankind, through the use of knowledge.

   Nearly four hundred years after the “first Folio” appeared in 1623, the Shakespeare plays have retained their timeless appeal, but not many people read Bacon — although that is changing.2  One serious scholar who has studied both Bacon and Shakespeare is Brian Vickers. Historically, he notes, Bacon’s work has not received the commentary, criticism, and linguistic annotation that Shakespeare’s has. He suggests several possible reasons. One is that Bacon’s work overlaps disciplines and thus defies categorization. Another is that people have accepted the negative “spin” on Bacon3  — that he was cold-hearted, conniving, and corrupt — despite ample evidence to the contrary.4 

    In consequence, many who refuse to even consider Bacon’s contribution to authorship of the Shakespeare oeuvre do not really know the man. Brian Vickers, a scholar of both Bacon and Shakespeare who is heading ongoing publication of the Oxford Francis Bacon,5  has stated, “No issue in Shakespeare studies is more important than determining what he wrote.”6  Francis Bacon taught that people should make their own investigations and draw their own conclusions, rather than blindly trusting in authorities. However, he also mined the past for ideas that could be given future application.7 

    One of the themes of this book is looking closely, beneath what is apparent on the surface, reading between the lines.8  Sometimes the truth lies in the interstices, the “nooks and crannies.” Of course, there is a risk of finding in Bacon or Shakespeare the qualities one seeks. Ambiguities, some caused by the passage of four hundred years, create a need for interpretation among multiple plausible possibilities. 

    I have been interested in the Shakespeare authorship question since my college days. However, until a few years ago, my reading was more often in authorship studies than in the actual writings of Shakespeare or Bacon. The archaic language in Shakespeare put me off, and I found Bacon’s “four idols”9  truly mystifying. These days, though, the internet gives us new ways to study these timeless works. With www.opensourceshakespeare.org, Google, HathiTrust.org, and the valuable SirBacon.org website, Bacon and Shakespeare become much more accessible.  I have found it fruitful to choose one term at a time and search for it in the works of “both men.”

    Unless otherwise stated, I used the standard (Longmans, 1857–1874) fourteen–volume Works of Francis Bacon, edited by James Spedding, Robert Leslie Ellis, and Douglas Denon Heath (to be cited as Spedding), online at HathiTrust.org. For word searches, it made sense to use the three–volume first American edition of Basil Montagu (Philadelphia: Carey & Hart, 1841–1853, to be cited as Montagu). There is a previous sixteen–volume Montagu edition (London: William Pickering, 1825–1837). Unless otherwise stated, references to Shakespeare will be to the 1864 Globe edition at www.opensourceshakespeare.org.

    Researching this book has felt like being drawn into a game of hide-and-seek, where one clue leads to another, with an occasional wild goose chase.10  About The Merchant of Venice, Marjorie Garber wrote, “From first to last, this play is about decipherment.”11  That seems fitting from the man who invented the word “hint,”12  a word not unfamiliar to Bacon, which may be of significance.13  Let us explore this further:

    The word “hint” was used by Shakespeare eight times, always as a noun, first in Othello and also in Anthony and Cleopatra.14  Suggested derivation is from Anglo-Saxon “hent” (the act of grabbing or seizing).15  However, the word made me think of “hunt,” which comes from the Anglo-Saxon “huntian.” One meaning of “hunt” is “change ringing: to shift the order of bells in a hunt.”16  Bacon even speaks of something that is “more like a kind of hunting by scent than a science.”17  Hunt plus scent equals hint makes more sense to me than talking about grabbing.

    While McQuain and Malless report that the first “recorded” use of “hint” as a verb dates to 1648, without naming Bacon, they may been alluding to a 1648 text which included Bacon’s writings. 18  However, a search in the three volumes of Montagu reveals that Bacon used the word “hint” even earlier than that,19  in the Novum Organum (1620), for instance.20 

    Francis Bacon once described himself as the “bell-ringer who calls all the wits together.”21   In The Merchant of Venice, there is a mysterious old Italian jurist called Bellario who, though he never actually appears as a character, guides the plot from behind the scenes by his notes and letters to Portia. In a 1965 book, Mark Edwin Andrews first proposed that Bellario “was,” or was in some way integrally connected to, Francis Bacon. To my knowledge, no one has ever challenged, or further explored, Andrews’ assertion. This book does that. Does Bellario indeed point uniquely to Francis Bacon? Looking first to the play for hints, let us begin the hunt for the hidden meaning of Bellario.

Christina G. Waldman

Buffalo, July 2018

Chapter One: A Fresh Look at Mark Edwin Andrews’ Insights (pp. 15-32)

Let us all ring fancy’s knell
I’ll begin it, — Ding, dong, bell.
Ding, dong, bell.
So may the outward shows be least themselves
The world is still deceived with ornament.22 

    A world in which things are not what they seem can be unsettling to perceive, but so would be the end of fancy. By “ornament,” Shakespeare may have simply meant “show.” However, he may have also had in mind rhetorical figures of speech called “adornments.” For example, there were four divisions of puns: antanaclasis, syllepsis of the sense, paranomasia, and asteismus. Punning was esteemed as “not merely an elegance of style or display of wit,” but a “means of emphasis and an instrument of persuasion.” It was integral to constructing an argument step-by-step, in serious applications such as the sermons of Launcelot Andrewes and the tragedies of Shakespeare. 23 

    In 1964, a University of Colorado law librarian, John Moller, found, in a dusty cardboard box in storage, a paper written in 1935 by an able law student. Realizing it had merit, law librarian Prof. Roy Mersky contacted its author, former Assistant Secretary of the Navy Mark Edwin Andrews, who agreed to its publication in 1965 by the University of Colorado Press.

    Law v. Equity in ‘The Merchant of Venice, a Legalization of Act IV, Scene I24  was perhaps the first modern book to significantly point out the degree to which the play focused on the tension between two important concepts in jurisprudence, law and equity. Andrews also asserted that the play itself must have helped to change the law by influencing the King’s decree in favor in the equity courts in the 1616 Glanvill case — at least for a time, as the decree was declared illegal in 1670.25  It did this, said Andrews, by influencing two, if not three, of the major players in that case: Sir Francis Bacon and Thomas Egerton (Lord Ellesmere), although probably not Sir Edward Coke.26 

    W. Nicholas Knight agrees, citing Andrews and his sources. However, it should be noted that Knight, a Stratfordian (one who believes the orthodox teaching that William Shaxpere of Stratford wrote the plays attributed to William Shakespeare), imparts to Shakespeare legal acumen for which there is no evidence Shaxpere, an actor/theatre owner/grain merchant, ever possessed,27  yet which Bacon surely did. For example, Knight writes, “There is substantial evidence of Shakespeare having developed a program of explicating, renovating, and defending, to meet the needs of all levels of society, the system of English law with its common law courts and competing courts of equity, offering provision for appeals to higher courts which allowed for and maximized evenhanded justice.” And, “He actively, in at least the one area of equity, and vigorously pursued a program for effecting change in, and reform and the preservation of, English jurisprudence….”28  How to explain this paradox?

    Andrews’ further assertion, that Francis Bacon “is” the character Bellario in the play, seems to have been largely ignored. B. J. and Mary Sokol argue that the trial scene in Merchant of Venice “is not concerned with the vicissitudes [changes in power and status, perhaps] of the English jurisdiction of equity.”29  The struggle for preeminence between the English courts of equity and the courts of law dates from ca. 1300. Tim Stretton seems to agree, as do I, insofar as the Sokols are saying that it was not the jurisdictional conflict between the courts of law and equity that Shakespeare wished to dramatize, twenty years before the matter came to a head in 1616, but the problems of ordinary sixteenth-century London debtors. Creditors were habitually holding debtors to the terms of conditional bonds which had harsh penalty clauses, disproportionate to the amount of debt.30 

    In simplest terms, the issue in the 1616 Glanville case was whether, after a plaintiff had obtained a judgment against a defendant in a court of law, that defendant could run to the court of equity and seek relief from the judgment on grounds of equity. Because of the importance of the issue, Lord Ellesmere had referred the matter to King James. Francis Bacon, already a special counsellor to the King, headed the special Privy Council set up to advise the King on the matter which was resolved in 1616 by a king’s decree, in favor of the courts of equity and, a selling point for the king, the king’s prerogative. Drawing an analogy between the fictional role of Bellario in Shylock v Antonio and the real-life role of Bacon in Glanvill twenty years later, and for other reasons, Andrews suggests that Bacon is Bellario. He does not say that Bacon appears “as” Bellario. For that matter, Bacon never “appears” at all. Rather, for Andrews, the identity was complete. But what would Francis Bacon be doing “in the play”? 

    The most obvious explanation would be that Bacon authored the play. However, Andrews assures us he is a “Stratfordian,” one who believes the actor William Shaxpere wrote the plays attributed to “William Shakespeare.” Having ruled out Bacon’s authorship, though, Andrews seems at a loss to rationally explain Bacon’s strong “presence” within the play.31  Perhaps, he suggests, the “mental seeds of Bacon fell upon fertile ground in the mind of the country boy from Stratford and bore fruit in the trial scene of The Merchant of Venice.” “One seer will influence another” in any age,” he continues.32  As a lawyer in training, he must realize how mystical these phrases sound. In the opinion of British law professor George Keeton, writing in 1967, Shakespeare had simply failed to explain Bellario “plot-wise.”33 

    We are back to the most obvious explanation which is: that he wrote the play and gave himself a cameo role which did not require his appearance. Alfred Hitchcock would show up for brief cameos in his films, and nineteenth century French artist Toulouse-Lautrec would paint himself unobtrusively into the backgrounds of his paintings. The head stonemason of a Gothic cathedral would leave a small portrait of himself in the very top of the building, his signature. Cameos and miniature portraits were popular in Elizabethan England, with the cameo being part of the fascination with ancient Rome.34 

   There in his cameo, Bellario has quietly remained for four hundred years, virtually ignored.

***

    It was watching Simon Miles’ talk35  on The Merchant of Venice in March 2015 that made me remember Mark Edwin Andrews’ Law v. Equity in the Merchant of Venice, a Legalization of Act IV, Scene 1. I had first seen the book in my college library, thirty-five years before. The visual impact of his paraphrase of the famous trial scene into modern courtroom English, with the lines from Shakespeare’s “immortal poetry” set out next to it on the right, had been powerful. I was convinced that whoever wrote that play had to have been a lawyer.

    Andrews’ honing in on just one act of one play has a certain appeal when the literature on Shakespeare, and on Bacon, is so extensive.36  While many are content to enjoy the plays at face value, others become gluttons for punishment,37  trying to learn more about the plays and playwright, perhaps hoping some of Shakespeare’s genius will rub off on them.

    Andrews sets his fictional scene in a London court of law, 1597, with Lord Chief Justice Coke presiding, Lord Ellesmere as Chancellor, and Francis Bacon as amicus curiae. In reality, Sir Edward Coke did not become Chief Justice of the Court of Common Pleas until 1606.38  Lord Ellesmere did not become Chancellor until 1603, under King James.39  However Andrews’ dramatization, drawing parallels, is provided for comparative purposes.

    By 1616, Francis Bacon was a legal advisor to King James, but in 1596–7, the dates proposed for the play’s composition, he had had few legal briefs, and political advancement eluded him, save that the Queen had created a position just for him as “learned counsel extraordinary.” In that role, he took part in Tower investigations of men accused of treason. These included the interrogations of Dr. Lopez, condemned to death in June 1594,40  and the Jesuit priest Father John Gerard, who once evaded capture as a hunted priest by traveling incognito, pretending to be a falconer looking for his missing hawk (“Did you not hear his bell tinkle?”).41 

    Perhaps more importantly, in 1596–97, he completed his “first important legal work,” A Collection of Some Principle Rules and Maximes of the Common Lawes, a hybrid work in which he attempted to infuse the practical common law with precepts of a “higher law” he had taken from civilian legal teachings. This work he dedicated to Queen Elizabeth. It was not published until 1631, thirty-four years later. In 1597, too, his Essays, along with Colours of good and evill and Meditationes Sacrae, were published. He dedicated this, his first published work, to his brother Anthony.42  

    While it would make sense for the playwright to set Merchant in his own times, the play has a certain medieval feel to it which cannot be ignored. As Hermann Sinsheimer, author of Shylock, tells us, the pound of flesh as a remedy for creditors was actually part of the Roman law on the books in the twelfth century — even as late as the fifteenth century.43  The presence of the fictional Lord Falconbridge, the English suitor about whom Nerissa queries Portia, has the same name as a character in Shakespeare’s play King John (1166–1216). This might suggest that Merchant, too, could be set in the twelfth century. In this, then, I disagree with Andrews who envisioned the play set in Elizabethan England.  It is as if the playwright had a foot in each of two worlds, like having two computer screens open, so as to more easily draw a comparison between Elizabethan England and twelfth-century Venice.

    In Part 1 of his book, Mark Edwin Andrews sets out his translation of the trial scene in Merchant into modern courtroom English. In Part 2, he sets out his research, sixty pages of annotations consecutively tied to the action in the play. He includes the “set-outs” of many relevant but hard-to-find cases from the Year Books, providing a valuable service.44 

    Today, lawyers look for the most current case, to prove that the law has not changed, but in Shakespeare’s time, lawyers looked for the oldest case, as if to say, “It was ever thus.”45  While Bacon was not immune from the strategy,”46  he was less likely to succumb to the temptation than Coke.47  At one point, Coke was in trouble for misstating the law.48  Coke would report cases as he thought they should have been decided, not as they actually were. In his defense, however, the legal historian William Holdsworth wrote that he only did this in matters where politics were involved.49 

    In Part 2 of Law v. Equity, Mark Edwin Andrews provides commentary to the trial scene he has paraphrased into modern courtroom English  in Part 1. He notes the rising importance of the notary in the sixteenth century, due to the increase in trade and commerce.50  He documents Francis Bacon’s concerns about the obscure informer clause51  and laws affecting aliens, both of which he finds relevant to the play.52  He finds distinct echoes of Portia’s “quality of mercy speech” in the official Per Ipse Regum which Bacon for King James in the 1616 Glanville case.53 

    Andrews expresses admiration for the playwright’s correct use of over fifty precise legal terms of art, including “tender” and “cause in controversy.”54  In contrast, he provides an excerpt from the petition of “William Wayte et al.” for an order of protection from “William Shaxpere” who has caused the petitioners to live in fear for their lives.55  Suffice it to say that Shaxpere’s legal experience was quite different from Francis Bacon’s.

    Andrews explains that his calling Bellario an amicus curiae or “friend of the Court” is meant “to suggest the actual fact that it was Bacon’s destiny as a legal authority to solve the actual conflict [in 1616] which Portia solves in the play.”56 

   According to Andrews, detailed legal procedure was Shakespeare’s addition to his literary sources. Although Andrews finds Shakespeare remarkably accurate in his use of the law, he points out two aberrations. The first is that Shakespeare has both legal and equitable issues heard in the same courtroom, although such was not the norm in late sixteenth-century England. The second is that, just once, Shakespeare used the word “decree,” where Andrews thought the word should have been “judgment” if the case had been heard in King’s Bench as Andrews assumes.57  He suggests that Shakespeare may have been imagining the courtroom of the future where law and equity were merged. However, there may be other explanations.

    The separate legal systems of law and equity did not merge in the United Kingdom until 1873.58  The legally trained chancellor under Henry VIII, Sir Thomas More, the author of Utopia, had proposed such a merger.59  Francis Bacon’s writings as a mature jurist indicate he was not in favor of merger. He thought the common law would suffer!60  It bears noting that, in Shakespeare’s time, the lines between the courts of law and equity were perhaps not as clear-cut as they might seem to us today. The same lawyers who made up the common law bar also made up the equity bar. Furthermore, common law judges would sometimes “sit” for chancery judges, as needed.61  It would be easy to see how one court might borrow or learn from another, over time.

    Common law judges called civilian, or Roman law, experts to consult them in merchant cases, at least after merchant cases began to be heard in common law courts.62  In the play, the bringing in of a legal expert to advise the judge, as well as Portia’s taking an active role in the questioning of Shylock, derived from Roman or civil law.63  Roman law was practiced in some sixteenth-century English courts, such as admiralty.64   The fictional Bellario is an Italian jurist, which means he is an expert in the civilian or Roman law, i.e., that based on the Sixth Century Roman Emperor Justinian’s Corpus Juris Civilis. Canon law (ecclesiastical law), too, and its interpretation, was based to a great extent on Justinian’s law as well. However, the Reformation had made it suspect in England. Somehow, it had to be “Reformed.” Canon law scholars like Prof. R. H. Helmholz have studied the history of English canon law.

    In contrast to Bellario, Francis Bacon was trained at Gray’s Inn in the law in common use in English legal courts, with a focus on statutes. Thus, if Bacon is Bellario, there is a seeming paradox, for Roman law was distrusted by the common law bar, including the powerful Sir Edward Coke—as being Popish and foreign. And yet, Roman law (civilian law) did have its applications in some English courts, as we have just discussed.

    Professor Daniel Coquillette has argued that Francis Bacon’s Roman law leanings were much stronger than has usually been acknowledged. What I will argue in this book, not uniquely, is that Francis Bacon, who took all knowledge to be his province, as he told Lord Burghley, had set out to reform the law of England, continuing the efforts of his father, under the Queen’s orders.

    In applying his vast intelligence to this task, he strove, in at least some of his writings, to achieve a synthesis, a grafting into the common law of England of some Roman (civilian) law concepts, as he did in his Maximes for instance. However, he had to do so quietly, unobtrusively, so as not to arouse a forceful repression of his method, which might have resulted in confiscation of his manuscripts, as had happened to Lord Coke. For example, Bacon’s treatise, sometimes known as the Aphorismi for short, has never been published, and his Maximes of the Common Law was not published until thirty-four years after his death. For more on Bacon’s jurisprudence, see Coquillette’s book, Francis Bacon.

    Such contentions as these may be difficult to contemplate. However, to realize that there was animosity on the part of the common lawyers towards the civilian law, with all its centuries of accumulated wisdom, including interpretations on “higher law” bordering on theology, is important in understanding why Bacon might have hidden his civilian law knowledge which may well have been deeper than is commonly known. This may explain what Bacon was up to, in part, in his involvement in the writing of certain “Shakespeare” plays such as Merchant, if he did indeed play an authorship role. But let the reader read on and discern for him/herself.

Does the Play Offend?

   At times, censors have banned this popular play about justice and mercy, labelling it as anti-Semitic for its portrayal of Shylock.65  How can Shakespeare argue, as it seems, for justice tempered by mercy for everyone but Shylock?66  The treatment of Shylock makes the play a challenge for directors.67  Perhaps the play teaches mercy by antithesis, like a “devil’s advocate.”68  The villain often gets to portray or proclaim the message no one wants to hear.69   Analogy and antithesis were hallmarks of Bacon’s style.

    Arguably the play, with its important theme of justice,70  is too important to relegate to obscurity.71  Although it is classified as a comedy, there is nothing funny about hatred, racism, attempted murder, or injustice. There is a form of medieval humor called the “grotesque.” It involves building anxiety and dramatic tension, then invoking laughter for relief.72  Some matters are so serious, they can only be spoken of “as if” one were joking. The fool’s head or blockhead is a form of grotesque humor.73  People may laugh at the fool when he speaks the unpleasant truth, but his frightening, traditionally grotesque appearance was thought to protect him, like a creature in nature who makes itself more formidable, a cat who hisses and arches its back, or a puffer fish (blowfish).

    In the trial scene, Portia begs for Shylock to show Antonio mercy. He, of course, refuses. Mercy, the grace or pardon one does not deserve, is different from equity, a word which derives from Roman law, aequitas, meaning fairness. Although the word “equity” does not appear in the play, fairness is one of its major themes. Francis Bacon, who in later life was Chancellor, second only to King James, asserted that equity was a component of every law.74  That is potentially a very powerful statement. Portia does not use the word “equity”; rather, she speaks of mercy seasoning75  justice (IV, 1, 2125). In cooking, a seasoning becomes a part of the dish so you can no longer tell the seasoning from the main ingredients. Thus, it is an apt metaphor. While mercy differs from equity, there might be some overlap in application at times, as with the term “forbearance,” for example.76  Bacon, for one, was precise in his use of language, and the same precision has been attributed to Shakespeare.77 

Season” as a noun has to do with “time generally,” a “fit and convenient time,” the four seasons, and “that which keeps fresh and tasteful.” The verb means: (1) “to spice, relish, make fresh and tasteful” (2) to “render more agreeable, recommend and set off by some admixture” (3) “to qualify, to temper” (4) “to mature, to ripen, to prepare”; and (5) “to gratify the taste of.”78 

In “Of Dispatch,” Bacon writes, “To choose time is to save time; and an unseasonable motion is but beating the air…” He goes on to speak of “that negative that is more pregnant of direction than an indefinite.”79 

Colossians 4:6 (KJV) says, “Let your speech be always with grace, seasoned with salt, that ye may know how ye ought to answer every man.” Due to its elegance in language, it is plausible that Bacon was the final editor of the King James Bible.80 

Did the Play Influence the Results in 1616?

   Reportedly, King James saw the play twice in short succession (1604–1605).81  The comments of Sir Thomas Egerton, later Lord Ellesmere, suggest that he, too, had seen it.82  Lord John Campbell reported that Ellesmere had argued that the king needed his prerogative, “for otherwise the King would be no more than the Duke of Venice.” Egerton arranged for Othello to be performed by Shakespeare’s company at his estate, Harefield, for Queen Elizabeth, in August 1602.83  Bacon and Ellesmere were acquainted. Bacon had written a letter to Lord Ellesmere in 1597, in which he introduced the word “competition” into the English language,84  and he sent Ellesmere a copy of his work, The Advancement of Learning after its publication, in 1605.85 

    Mark Edwin Andrews wrote, “If I were asked to name the three men in all England who were most profoundly affected by Shakespeare’s The Merchant of Venice, I should unhesitatingly name the following: Sir Edward Coke, Sir Thomas Egerton, later to become Lord Ellesmere, and Sir Francis Bacon. This statement is made after due consideration, for these three men were to English jurisprudence of the late sixteenth and early seventeenth centuries what Shakespeare, Marlowe, and Johnson were to Elizabethan drama; and The Merchant of Venice was the one instance in which jurisprudence and drama came together vis-à-vis.”86  In contrast, Lord Campbell believed it was not in Sir Edward Coke’s “nature” to attend plays.87  Paul Raffield considered Coke to be no friend to stage actors.88 

    While Bacon did not ever mention the name of Shakespeare, according to Spedding, or, apparently, The Merchant of Venice, E. A. Abbott, who was not a Baconian, wrote in his preface to Mrs. Henry Pott’s work on Bacon’s Promus that he believed Bacon must have seen Romeo and Juliet, based on similarities between the Promus and the play.89  Bacon wrote and co-wrote masques,90  speeches for the Gray’s Inn revels in 1594, and other dramatic works.91  Mark Edwin Andrews, a Stratfordian, believed it was likely that Bacon would have seen the play. As he wrote, “The author can advance no irrefutable proof as to the influence of the play on Elizabethan thought, or on the final decision regarding the case of Glanville v. Courtney. Nevertheless, is it not significant that Coke, Ellesmere, and Bacon saw each other frequently and must have had many opportunities to see the play, to discuss it with others who had seen it, and to discuss it amongst themselves? It is even possible that one or more of them may have known Shakespeare personally....”92  Yes…

   According to O. Hood Phillips, Bacon set forth the law on bribery to King James “a little later” than when the play was written (1596-98).93  It was actually in April 1621, when Bacon was facing charges of corruption, that Bacon wrote a memorandum setting forth the law on bribery, in preparation for his audience with King James. He wrote, “There be three causes of bribery charged or supposed in a judge: the first, of bargain or contract for reward to pervert justice; the second, where the judge conceives the cause to be at an end by the information of the party or otherwise, and useth not such diligence as he ought to inquire of it; and the third, when the cause is really ended, and it is sine fraude, without relation to any precedent promise.” Lord Normand reasoned that Portia’s case fell into the third category.94 

    Corruption was rampant in the Elizabethan justice system, where presents could be seen not as bribery but as allowed fees which moved a case through a backlog. A failure to provide a consistent rubric as to what constitutes actionable bribery can provide ammunition for one’s political enemies, as we have seen in recent times; e.g., in the case of Don Siegelman, former governor of Alabama.95 

    In twelfth-century Italy, honored doctors of jurisprudence who were called to serve as podesta (judges in criminal matters in small republics) “did not render [their] opinions gratuitously” but expected to be paid. Portia had turned Shylock v. Antonio into a criminal matter. Thus, if we set the play in the twelfth century, Bassanio’s gracious compensation of Portia was completely respectable and expected of him.96 

   James Spedding presumed that Bacon had most likely never heard of the plays of Shakespeare, since he never mentioned Shakespeare in his writings.97  Spedding wrote to Baconian judge Nathaniel Holmes that he “no longer” believed that Bacon had written Hamlet.98  However, he did compare Bacon to Shakespeare99  and praised Bacon’s poetic faculty.100  Spedding excluded from publication some works which arguably bear on the question of authorship.101  Spedding discussed how Bacon guarded and preserved his ideas from the scorn and derision of those who would likely not understand them. He may have felt it was his duty as editor of his works to keep Bacon’s secrets.102 

Law in Shakespeare as Probative Evidence of Authorship

   It is now accepted that there is an abundance of law in the works of Shakespeare.103  However, there seems to be a tendency to simply sidestep the implications of that fact as to the authorship question.104  For example, it has been argued that Shakespeare could have picked up all the law he needed to infuse his plays with legal knowledge from living in a litigious society or possibly clerking in a law office, and that he was an authority on legal topics such as “libel, inheritance, sovereign immunity, conveyance, and delegation.”105  Normally, becoming an authority on such topics would require years of study and practical experience.

    Arguably, no legitimate reading should disregard highly probative evidence. Any bald statement, such as that it was a “virtual”106  or “almost virtual”107  certainty that Bacon did not write Shakespeare, does not become true merely by being repeated often. Bacon taught that one should look first to the facts and then derive rules from them, rather than to force-fit facts to rules.108  In discussing legal fictions, legal scholar J. H. Baker wrote, “The implication of a material fact is tantamount to a conclusion of law.”109   Shakespeare’s knowledge of law is such a fact.

    In sum, then, research since Andrews has proven correct his argument that the author of The Merchant of Venice demonstrated vast knowledge of the English legal system and legal language. His second assertion, that the play actually influenced legal history-in-the-making twenty years after the play was produced, is difficult to prove with certainty, but seems plausible, as far as it goes.

    Andrews’ last, novel assertion, that Bacon “was” in some way the character Bellario, remains to be explored to its fullest — as Simon Miles says in his Foreword — without a restriction on consideration of Bacon’s authorship, and using modern tools of online research not available to Andrews, whose time on the project was, at any rate, limited.

    Thus, this book attempts to take up where Andrews left off, looking for clues within the play, in Bacon’s writings, and other sources to try to understand the meaning, function and purpose of Bellario within the play and what, if anything, he can teach us about Francis Bacon and, in a bigger picture, the law.

    

1

Catherine Drinker Bowen, ch. 9, “1597-1598. The House in Castle Yard. Star Chamber. The Death of Brigit Coke,” The Lion and the Throne (Boston: Little, Brown, 1957), pp. 104-116, 111-113, esp. 112 (citing John Hawarde, Reports del. Cases in Camera Stellata (1894 ed.), 13-250 passim, pp. 612-613). To be further cited as Bowen, Lion.

2

For scholars currently involved in Bacon research, see, e.g., Rhodri Lewis, “Francis Bacon and Ingenuity,” Renaissance Quarterly 67, no. 1 (Spring, 2014), pp. 113-163, asterisked footnote, p. 113, JSTOR, http://www.jstor.org/stable/10.1086/676154.

3

See Brian Vickers, preface, Francis Bacon, A Critical Edition of the Major Works, ed. Brian Vickers (Oxford: Oxford University Press, 1996), pp. vii-viii.

4

See Nieves Matthews, The History of a Character Assassination (New Haven: Yale University Press, 1996), the entire book.

5

Oxford Francis Bacon, under the auspices of the British Academy, http://www.oxfordfrancisbacon.com/.

6

Brian Vickers, Shakespeare, Co-Author, A Historical Study of Five Collaborative Plays (Oxford: Oxford University Press, 2004, soft cover), pp. 3, 560. He adopts Bacon’s wish as his own, “that the art of discovery may advance as discoveries advance.” Vickers, p. 147. On Bacon, see also pp. ii, 145, 273, 413, 526.

7

See, e.g., Spedding, V, p. 110 (transl. of De Augmentis).

8

This phrase is said to have originally applied to sixteenth-century cryptology, but it might also bring to mind also the interlinear and marginal notations the twelfth-century glossators made when glossing or interpreting the texts of Justinian’s Corpus iuris civilis.

9

See Daniel R. Coquillette, Francis Bacon (Stanford: Stanford University Press, 1992), pp. 228-231, 233-34, 293 (hereafter to be cited as “Coquillette, FB” or “FB.” Prof. Coquillette’s book is the first modern book focusing on Bacon’s jurisprudence.

10

Coincidentally, a William Wildgoose was the binder of Shakespeare’s First Folio. Adam Smyth, Material Texts in Early Modern England (Cambridge: Cambridge University Press, 2018), p. 164.

11

Marjorie Garber, “The Merchant of Venice,” Shakespeare After All (New York: Pantheon Books, 2004), pp. 282-312, 303.

12

“Hint,” Jeffrey McQuain, Coined by Shakespeare, Words & Meanings First Penned by the Bard (Springfield MS: Merriam-Webster, 1998), p. 95.

13

Significatio means “hint” in classical Latin. Cassell’s New Compact Latin Dictionary, compiled by D. P. Simpson (New York: Dell, 1974), pp. 293, 207 (hereinafter, Cassell’s Latin).

14

Othello first appeared in print in Quarto in 1622, though it is thought to have been written in 1604. ‘Othello,’ The Yale Shakespeare, ed. by Tucker Brooke (New Haven: Yale University Press, 1956), appendix B, p. 175. The date for Anthony and Cleopatra’s composition is given as 1606-1607, but the first printed text was the First Folio, 1623. Anthony and Cleopatra, The Yale Shakespeare (New Haven: Yale University Press, 1955), ed. by Peter G. Phialas, appendix a, p. 159.

15

McQuain, Coined by Shakespeare, p. 95.

16

Webster’s Collegiate Dictionary, fifth ed., s.v. “hunt” (Springfield MS: G. & C. Merriam Co., 1941), p. 485 (hereinafter, Webster’s).

17

Christopher Hill, ch. 3, “Francis Bacon and the Parliamentarians,” Intellectual Origins of the English Revolution Revisited (New York: Oxford University Press, 1997), p. 78.

18

They may be referring to Remains of the Lord Verulam[...] which contained some allegedly spurious, as well as genuine, works of the Lord Verulam, Francis Bacon. Montagu, XVI, pt. 2, in 16 vol. (London, 1824-1834) (There is no pagination of the notes. Type “1648” in the search box.), HathiTrust, https://hdl.handle.net/2027/hvd.hnug2l (Unless otherwise stated, references to Montagu will always be to the three-volume set). E.g., see also Montagu, II (of III), p. 400 (Philadelphia, 1853), pp. 4, 400-401, HathiTrust, https://hdl.handle.net/2027/uc1.b3618254. https://hdl.handle.net/2027/uc1.b3618254. Note:  the 1648 Remains is to be distinguished from Baconiana, or, Certain genuine remains of Sr. Francis Bacon[…], ed. by Thomas Tennison (London, 1679), http://name.umdl.umich.edu/A28024.0001.001.

19

Montagu, I, pp. 409, 2d col. (“Thoughts on the Nature of Things”); pp. 427, 1st col.; 432, 2d col.; 434, 2d col. (“The Interpretation of Nature”); and p. 451, 2d col. (“Fable of Cupid”), HathiTrust, https://hdl.handle.net/2027/njp.32101068998481; Montagu, II: p. 547 (“Of the Interpretation of Nature”), HathiTrust, https://hdl.handle.net/2027/njp.32101068998499; Montagu, III: pp. 191 (“letter to a most dear friend”), 362 (Novum Organum, i, #93, first lines); 369, 1st col. (Novum Organum, i, #124), HathiTrust, https://hdl.handle.net/2027/njp.32101068998507.

(Note: These works I have found, some apparently prototypical fragments, with “Interpretation of Nature” in the title: “Thoughts and Observations of Francis Bacon, of Verulam, Concerning the Interpretation of Nature, or, the Invention of Things and of Works”; “Valerius Terminus, Of the Interpretation of Nature with the Annotations of Hermes Stella” (Spedding, III); “Aphorisms Concerning the Interpretation of Nature and the Kingdom of Man” in the Novum Organon; and proem to a planned treatise, “Of the Interpretation of Nature, Spedding, X).

20

Coquillette, FB, appendix 3, p. 333.

21

Francis Bacon letter to “Dr. Playfer” (undated), Spedding, X, p. 301, HathiTrust, https://hdl.handle.net/2027/uc1.b3618245.

“His greatness consists in his repeated insistence on the facts that man is the servant and interpreter of Nature, that truth is not derived from authority and that knowledge is the fruit of experience. The impetus which his inductive method gave to the future of scientific investigation is indisputable. As he himself described it, he ‘rang the bell which called the other wits together.’” “Francis Bacon,” Chambers Encyclopedia: A Dictionary of Universal Knowledge, vol. 1 (London, 1888), pp. 641-644, 643.

22

William Shakespeare, The Merchant of Venice, III, 2, 1437 ff. On rhetorical style and “ornament” as considered integral to the meaning of a text in Renaissance writing, see Sister Miriam Joseph, Shakespeare’s Use of the Arts of Language (New York: Hafner, 1966), pp. 39-40. It is good to keep in mind that there is no reason why “Shakespeare” could not have been a pen name.

23

Sister Miriam Joseph, , Shakespeare’s Use of the Arts of Language pp. 39-40, 164-165 n. 340; 340 (quoting Frank P. Wilson).

A study just of Bacon’s use of the word “ornament” would be beneficial to those seeking to understand his method. E.g., in Spedding, IV, see pp. 4, 110. In Spedding, V, see especially p. 288 (‘Novum Organum’). Bacon’s Ornamenta Rationalia, or “Ornamental Speeches,” are lost. Thomas Tennison, Baconiana, or, Certain genuine remains of Sir Francis Bacon, Baron of Verulam, and Viscount of St. Albans in arguments civil and moral, natural, medical, theological, and bibliographical now for the first time faithfully published (London, 1679), pp. 1, 22, 60, 89, Early English Books Online: Text Creation Partnership, http://tei.it.ox.ac.uk/tcp/Texts-HTML/free/A28/A28024.html; http://name.umdl.umich.edu/A28024.0001.001.

24

Mark Edwin Andrews, Law v. Equity in The Merchant of Venice, a Legalization of Act IV, Scene 1 (Boulder: University of Colorado, 1965) will be cited hereinafter as MEA.

25

R. v. Standish (1670) Treby MS. Rep., LPCL 438 declared the decree illegal. J. H. Baker, An Introduction to English Legal History, 3d ed., (London: Butterworth’s, 1990), p. 126, fn 56. The third edition will be hereafter cited as “Baker, Intro.”

26

Of course, the ultimate decision in Glanville (associated by its issues with the Earl of Oxford’s Case) was made by King James, by decree, although Bacon cautioned the King not to do it that way, flaunting his prerogative. See David Ibbetson, ch. 1, “The Earl of Oxford’s Case (1615),” in Charles and Paul Mitchell, ed., Landmark Cases in Equity, (Oxford: Hart Publishing, 2012), pp. 1-32, 3, 28. https://books.google.com/books?isbn=1847319742.

27

For the documented facts on the life of the man thought to be “Shakespeare,” William Shaxpere/Shaxberd of Stratford, see Ilya Gililov, The Shakespeare Game, The Mystery of the Great Phoenix (New York: Algora 2003), ch. 2, pp. 89-224, 98-105.

28

W. Nicholas Knight, Shakespeare’s Hidden Life, Shakespeare at the Law (New York: Mason & Lipscomb, 1973), pp. 279-288, 279, 284.

29

B. J. Sokol and Mary Sokol, “Shakespeare and the English Equity Jurisdiction, ‘The Merchant of Venice’ and The Two Texts of ‘King Lear,’” The Review of English Studies, new series, 50, no. 200 (Oxford: Oxford University Press, 1999), pp. 417-439, 417, JSTOR, www.jstor.org/stable/517390.

30

Tim Stretton, “Contract, Debt Litigation, and Shakespeare’s The Merchant of Venice,” Adelaide Law Review 31, no. 2 (2010). pp. 111-125, https://search.informit.com.au/documentSummary;dn=201100559;res=IELAPA.

31

In the Revels’ accounts listing provided by E. K. Chambers, The Merchant of Venice is one of only two plays which names an author — Shaxpere — the other play being Measure for Measure. The rest, which include known Shakespeare plays, are all listed anonymously. E. K. Chambers, William Shakespeare, A Study of Facts and Problems, vol. 2 (Oxford: Clarendon Press, 1930), appendix d, “Performances of Plays,” pp. 331-332. However, the “Shaxpere” notations were discovered to be forgeries of Payne Collier. William J. Rolfe, Shakespeare’s Comedy of ‘The Merchant of Venice’ (New York, 1885), p. 11.

32

MEA, p. 45.

33

George Keeton, ch. 9, “Shylock v. Antonio,” Shakespeare’s Legal and Political Background (London: Pittman 1967), pp. 139-140 (mentioning that Karl Elze, editor of the 1878 Shakespeare Jahrbucher (Yearbook), suggested that Bellario may have been modelled on Otto Discalzio, a sixteenth-century Paduan legal scholar. Keeton, 1967, p. 140, citing [Friedrich] Karl Elze, ed., Shakespeare Jahrbucher (1878); appendix, A New Variorum Edition of Shakespeare: Merchant of Venice, 7th ed., edited by Horace Howard Furness (London, 1888), pp. 458-459). However, there may be another solution to the riddle of “who is Bellario?” 

34

Sara N. James, “Elizabethan painting: the portrait,” Art in England: The Saxons to the Tudors: 600-1600 (Oxford: Oxbow Books, 2016), p. 307. A cameo “concentrate[es] major drama into a minute space.” “Cameos and Intaglios,” Extasia Jewelry, https://www.extasia.com/retail-jewelry/cameos-and-intaglios.html; “Cameo,” Online Etymology Dictionary, https://www.etymonline.com/word/cameo.

35

“The Francis Bacon Society Lectures with Simon Miles, ‘Francis Bacon and the Merchant of Venice,’ March 2015, pub. on Aug. 27, 2015, https://www.youtube.com/watch?v=KcQCljc1Mv8.

36

On May 23, 2018, a Google search for “Shakespeare and law” returned 42.4 million results for “all results” and 3.27 million results for “books.”

37

Cormorants are adept, voracious fishing birds that Shakespeare associated with gluttony. http://acobas.net/teaching/shakespeare/masters/. Anglers do not like the cormorant, unless they have trained it to serve them. Like pork, this bird of prey was a forbidden food to the Jews (Leviticus ll: 13-14). The Hebrew for “cormorant” is “shalakh,” which sounds like “Shylock.” Hope Traver, “I Will Try Confusions with Him,” The Shakespeare Association Bulletin 13, no. 2 (April, 1938), pp. 108-120, 119, JSTOR, http://www.jstor.org/stable/23675765.

38

Gareth H. Jones, “Sir Edward Coke,” Encyclopedia Britannica, https://www.britannica.com/biography/Edward-Coke; Bowen, Lion, ch. 21, pp. 278-281.

39

“Sir Thomas Egerton, Viscount Brackley, Lord Chancellor Ellesmere (1540-1617)” Luminarium: Encyclopedia Project. http://www.luminarium.org/encyclopedia/egerton.htm.

40

Bowen, Lion, p. 94.

41

Bowen, Lion, pp. 98-99. Nieves Matthews in Francis Bacon, The History of a Character Assassination, thought Bowen treated Bacon in an unduly negative fashion in her biography of him, The Temper of a Man (New York: Fordham University Press, 1993). https://books.google.com/books?isbn=0823215377.

42

FB, appendix II, p. 325; on the Maxims, pp. 35-48.

43

Hermann Sinsheimer, Shylock (New York: Benjamin Blom, 1963, first pub. 1947), p. 82.

44

MEA, part II, pp. 17-78, appendix 1, pp. 79-81.

45

Daniel R. Coquillette, ch. 1, “The Early Legal Works,” Francis Bacon (Stanford: Stanford University Press, 1992), p. 59, n. 165, citing Spedding, XIII, p. 41, HathiTrust, https://hdl.handle.net/2027/uc1.b3618247

46

Bowen, Lion, p. 361. For example, Bacon argued in Calvin’s Case, “Allegiance began before laws:... The original age of kingdoms was governed by natural equity....” Francis Bacon, in Polly J. Price (1997), “Natural Law and Birthright Citizenship in Calvin’s Case (1608)." Yale Journal of Law & the Humanities 9, no. 1, art. 2, p. 109, n. 202, Digital Commons, http://digitalcommons.law.yale.edu/yjlh/vol9/iss1/2/; “Arguments of the Law, The Case of the Post-Nati of Scotland,” Spedding, VII, 637-682, 666, HathiTrust, https://catalog.hathitrust.org/Record/006685889; Calvin v. Smith, 77 Eng. Rep. 377 (K.B. 1608).

47

Coquillette, Francis Bacon, p. 246.

48

Holdsworth, A History of English Law, 3d ed. (1922), pp. 553-554, HathiTrust, https://hdl.handle.net/2027/njp.32101075729283.

49

Bowen, Lion, ch. 34, pp. 515; p. 635 (notes to p. 515).

50

MEA, pp. 48-49, n. 26.

51

MEA, p. 69. For Bacon’s longstanding concern about the abuses of informers, see his “Report on Project Touching the Penal Laws” to King James, ca. 1608, Spedding, XI, pp. 96-106, p. 96, HathiTrust, https://hdl.handle.net/2027/uc1.31175012007939.

52

MEA, p. 70; Bowen, Lion, p. 39 (regarding a bill pending in 1593, Against Alien Strangers retailing their goods in London).

53

MEA, pp. 40-41. Here is Portia: “The quality of mercy is not strain’d/It droppeth as the gentle rain from heaven/Upon the place beneath…/…It becomes the Throned monarch better than his crown…/It is enthroned in the hearts of kings…/And earthly power doth then show likest God’s/When mercy seasons justice….” (Merchant IV, 1, 2125).
Compare, as MEA does, the decree Bacon penned for the King to sign: “Now, forasmuch as mercy and justice be the true supports of our Royal Throne, and that it properly belongeth to us, in our princely office, to take care and provide, that our subjects have equal and indifferent justice ministered to them ....” The English Reports, vol. 21, pp. 65, cited in MEA, p. 41.

Compare, also, Bacon’s speech to Parliament on the motion of subsidy, Elizabeth 39 (1597-1598): “Sure I am that the treasure that cometh from you to her Majesty is but as a vapour which riseth from the earth and gathereth into a cloud, and stayeth not there long, but upon the same earth it falleth again….” (1597-98), Spedding, IX, pp. 85-89, 86, HathiTrust, https://hdl.handle.net/2027/uc1.b3618244.

54

MEA, part 2, pp. 50, 53-55. Merchant, IV, 1. As to “cause,” the canonist Gratian used the “causa” or “case” method as a teaching tool in his Decretum. “Since the time of Chief Justice Marshall,” the U.S. Supreme Court will hear only a “cause in controversy.” MEA, p. 50. (Incidentally, two United States Supreme Court justices praised Andrews’ book. Letter from Justice Stone to Mark Edwin Andrews, 1937, quoted in editor’s preface and letter from Mark Edwin Andrews to Roy M. Mersky, April 27, 1964, pp. ix, 85, MEA).

While Shakespeare’s substantial knowledge of law is now generally accepted, scholars used to argue about how much he knew and how he could have learned it. See O. Hood Phillips, Shakespeare and the Lawyers (London: Methuen 1972), esp. pp. 91-140, 166 n. 2. One quibble concerned whether Antonio’s bond was single or conditional. Some argued a penalty could not be a condition, but see Baker, Intro., p. 368. William Rushton chastised Lord Campbell for using terms incorrectly, while Keeton agreed with Greenwood that Shylock was using “condition” in a general sense. See Sir George Greenwood, Shakespeare’s Law, (London: C. Palmer, 1920), pp. 25-27; Keeton, ch. 9, “Shylock v. Antonio,” Shakespeare’s Legal and Political Background, p. 136); Baker, English Legal History, pp. 368-371, 368; ‘The Merchant of Venice,’ A New Variorum Edition of Shakespeare, vol. 7, ed. by Howard Horace Furness (London, 1888), pp. 50-51; William Rushton, Shakespeare a Lawyer (London, 1858), pp. 18-19, HathiTrust, https://hdl.handle.net/2027/hvd.32044009633488.

55

MEA, p. 26.

56

MEA, p. 43, n. 22.

57

MEA, pp. 8, 54, fn. 41.

58

Baker, Intro., pp. 131-133; p. 132, n. 75. Bowen quotes Bacon in 1616, “So all that troubles us is this, that when Mr. Brownlow [notary] goes up to Westminster Hall hereafter, he shall turn a little upon his right hand, and all shall be well!” Bowen, Lion, pp. 356-364, 361. Chancery was on the right hand; King’s Bench was on the left.
For a brief history of equity jurisdiction (with pars. 25-33 on the 1616 jurisdictional struggle), see the speech of The Hon. T. F. Bathurst, Chief Justice of New South Wales. “The History of Equity,” October 27, 2015, http://www.supremecourt.justice.nsw.gov.au/Pages/sco2_publications/SCO2_judicialspeeches/sco2_speeches_chiefjustice.aspx or http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/2015%20Speeches/Bathurst_20151027.pdf.

As of 2015, in the United States, three states had not completely merged their courts of law and equity: Tennessee, Mississippi, and Delaware.  Samuel L. Bray, “The Supreme Court and the New Equity,” Vanderbilt Law Review 68, no. 4 (May, 2015), pp. 997-1054, 1018, fn. 113 (listing other states which maintain some separation between law and equity: New Jersey, Cook County, Illinois, Georgia, and Iowa); see also Russell Fowler, “A History of Chancery and its Equity, from Medieval England to Today’s Tennessee,” Tennessee Bar Journal (January 25, 2012), reprinted by permission from Capital Area Bar Association (May 2012). http://caba.ms/articles/features/history-chancery-equity.html. For an argument for the preservation of equity within the Federal Rules of Civil Procedure, see, e.g., Thomas O. Main, “Traditional Equity and Contemporary Procedure,” (2003) Scholarly Works, paper 740, Scholarly Commons at UNLV Law, http://scholars.law.unlv.edu/facpub/740, also Wash. L. Rev. 429-514 (2003).

Francis Bacon asserted, “For there is no law under heaven which is not supplied with equity.” Francis Bacon, “The Jurisdiction of the Marches,” in ‘Arguments of the Law,’ Spedding, VII, pp. 567-612, 602, HathiTrust, https://hdl.handle.net/2027/uc1.b3924335. Interestingly, Kenji Yoshino has observed that, within Merchant, there is no law that is not “inflected” by equity, and “equity” looks a lot like Portia’s will. Kenji Yoshino, “The Lawyer of Belmont,” Yale Journal of Law and the Humanities 9, no. 1 (1997), pp. 202, 209, 211, http://digitalcommons.law.yale.edu/yjlh/vol9/iss1/4/.

59

Brendan F. Brown, “St. Thomas More, Lawyer,” 4 Fordham L. Rev. 375, p. 381, http://ir.lawnet.fordham.edu/flr/vol4/iss3/1.

60

Daniel J. Coquillette, Francis Bacon (Stanford: Stanford University Press, 1992), p. 249, citing aphorism 45, Spedding, V, p. 96; Barbara Shapiro, “Francis Bacon and the Mid-Seventeenth Century Movement for Law Reform,” American Journal of Legal History 24, no. 4 (Oct. 1, 1980), pp. 331-362, p. 344, JSTOR, http://www.jstor.org/stable/844906.

61

J. P. Dawson, “Coke and Ellesmere Disinterred: The Attack on the Chancery in 1616," 36 Ill. L. Rev. 127 (1941), pp. 143, 146.

62

William S. Holdsworth, A History of English Law, vol. 1, third ed. revised (Boston: Little, Brown, 1922) p. 554, n. 5, citing 2 Brownlow 17 (1611), Archive.org, https://archive.org/details/historyofengl3rd03holduoft or JSTOR, https://www.jstor.org/stable/2141111.

63

Merchant, V, 1: 319-321. The civil law forums were inquisitional, using such fact-finding instruments as depositions, interrogatories, and subpoenae. Civilian judges cross-examined witnesses and requested the advice of experts. Daniel R. Coquillette, “Legal Ideology and Incorporation I: The English Civilian Writers, 1523-1607,” Boston University Law Rev. 61 (1981), pp. 1-89,  29, Digital Commons @ Boston College Law School, http://lawdigitalcommons.bc.edu/lsfp/642/.

64

The word “civilian” referred to Roman law based upon Justinian’s Corpus iuris civilis. Canon law, church law, was also Roman, influenced by Justinian law, but written by churchmen.

65

For “The Most Infamous Shakespeare Production in History? The Merchant of Venice at Vienna’s Burgtheatre in 1943,” see Shakespeare en devenir, no. 9, 2015, http://shakespeare.edel.univ-poitiers.fr/index.php?id=865.

On censorship, see, e.g., David C. Kupfer, “The Merchant of Venice: Schools, Libraries, and Censors,” Library Philosophy and Practice (2009), http://www.webpages.uidaho.edu/~mbolin/kupfer2.htm; Melvyn Bragg, “Banned Books of Guantanamo: The Merchant of Venice by William Shakespeare” (Nov. 13, 2014), https://www.vice.com/en_us/article/jmb78y/the-merchant-of-venice-by-william-shakespeare-777; Dawn B. Sova, “The Merchant of Venice,” Banned Plays: Censorship Histories of 125 Stage Dramas (New York: Facts on File, 2004), pp. 175-176. On anti-Semitism, see Walter Saunders, “The Merchant of Venice and Anti-Semitism” (2011), http://sirbacon.org/wsaundersMOV.htm.

66

“Justice and Mercy” was the motto adorning the Seal of the Inquisition. Jonathan Kirsch, The Grand Inquisitor’s Manual, A History of Terror in the Name of God, (New York: Harper Collins e-book (print, 2008), p. 3, https://www.harpercollins.com/9780061982569/the-grand-inquisitors-manual.

67

See, e.g., Frank G. Riga, “Rethinking Shylock’s Tragedy: [Director Michael] Radford’s critique of anti-Semitism in ‘The Merchant of Venice,’” The Free Library, 2010, Mythopoeic Society, http://www.thefreelibrary.com/Rethinking+Shylock%27s+tragedy%3a+Radford%27s+critique+of+anti-semitism+in...-a0227196961.

68

Defining something by saying what it is not (“negation and exclusion”) is important in Bacon’s system of inductive reasoning. Klein, Jürgen, “Francis Bacon,” The Stanford Encyclopedia of Philosophy (Summer 2015), ed. by Edward N. Zalta, sec. 5. http://plato.stanford.edu/archives/sum2015/entries/francis-bacon/). See Francis Bacon, Novum Organum, ii, aphorisms 11-12, in Spedding, IV, p. 127 to 137. Kenji Yoshino points out the abundant contrasting of “binaries” in Merchant. “The Lawyer of Belmont,” pp. 185, 188. http://digitalcommons.law.yale.edu/yjlh/vol9/iss1/4/. Bacon also knew the power of the “negative pregnant.” He once wrote to King James that he was saying a lot by his silence.

Antithesis was popular among Renaissance writers, Machiavelli was among those who observed that opposites juxtaposed reveal each other more sharply in contradistinction. See his letter to R. Bechi, March 9, 1497-98. Alan H. Gilbert, ed., The Prince and Other Works ...(Chicago: Packard, 1941), p. 220. When the contrast is extreme, it can also be an effective device in humor. See, e.g., “William Shakespeare: Study sheds light on Bard as food hoarder.” BBC News, April 1, 2013, http://www.bbc.com/news/uk-wales-mid-wales-21993857.

David Kerchner in The Popes against the Jews tells “an age-old story of a powerful religion or powerful people that believes in its own divinely ordained position as sole possessor of the Truth and repository of all that is good, and, pitted against it, a despised minority, the Other, the agent of the devil. It should not have taken the Holocaust to teach us how dangerous such views of the world can be, but since the destruction of the Jewish millions, we owe it to the survivors and ourselves to learn its lesson ....” David Kerchner, intro., The Popes against the Jews (New York: Vintage Books, 2002), p. 21.

For a history of mistreatment of Jewish persons in London, see David Hughson, London, Being an Accurate History and Description of the British Metropolis, vol. 2 (London, 1805), pp. 365 to 379.

69

Michael Bryson and Arpi Movsesian, ch. 6.II, “Post-Fin’amor French Poetry: The Roman de la Rose,” Love and its Critics: From the Song of Solomon to Shakespeare and Milton’s Eden (Cambridge UK: Open Book Publishers, 2017) (Scroll down about two inches, under the picture of Meister des Rosenromans.), https://www.openbookpublishers.com/htmlreader/978-1-78374-348-3/ch6.xhtml#_idTextAnchor025.

70

Prof. Daniel R. Coquillette’s 1992 book, Francis Bacon (Stanford: Stanford University Press, 1992) is the first book to focus on Bacon’s jurisprudence.

A very important Baconian text, never published, discovered and translated relatively recently, sheds much light on Bacon’s “mature” views on the law. It is a text of twenty aphorisms, or in Latin, Aphorismi (“Aphorisms on the greater law of nations or the fountains of Justice and Law,”) which, taken together with his 97 aphorisms in the ‘Example of a Treatise on Universal Justice or The Fountains of Equity, by Aphorisms,’ in book 8 of the De Augmentis, present a good picture of Bacon’s “mature” jurisprudence. Prof. Coquillette sets out highlights from this material clearly in ch. 5, “The Final Vision,” Coquillette, FB, pp. 234-256.

The manuscript with the twenty new Aphorismi, found by Peter Beal in 1980, was translated by Mark Neustadt. For text and scholarly translation, see the appendix to his 1987 Ph.D. dissertation for Johns Hopkins University, “The Making of the Instauration: Science, Politics and Law in the Career of Francis Bacon” (microfilm). This text is also discussed in William Sessions, ch. 3, “Actual Makers of Time: the Experience of Henry VII and Bacon’s Law Texts,” in Francis Bacon Revisited, Twayne’s English Author Series no. 523 (New York: Twayne Publishers, 1996), pp. 57-68, 62-68. As Sessions says, “Even in so cursory a survey as this, the reader cannot but be daunted by the legal texts that emerged from the profession that occupied the great part of Francis Bacon’s every day.”

71

Theodore Roosevelt said, “Justice consists in not being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.” Theodore Roosevelt Association, s.v. “Justice—Meaning of”, http://www.theodoreroosevelt.org/site/c.elKSIdOWIiJ8H/b.8090921/apps/s/content.asp?ct=14739067. In 1979, Black’s Law Dictionary defines justice as “the proper administration of the laws.” Black’s Law Dictionary, 5th ed., ed. by Henry Campbell Black (St. Paul: West, 1979), p. 776 (hereafter to be cited as Black’s LD). The 10th edition, edited by Bryan Garner (Thomson Reuters/Westlaw, 2014), gives, inter alia, this definition: “the fair treatment of people; the quality of being fair or reasonable; the legal system by which people and their causes are judged,” especially in the criminal context, and “the fair and proper administration of the laws.”

72

On the medieval “grotesque” as humor in a 1611 manual for lawyers, see Scott L. Taylor, “Vox populi e voce professionis: Processus juris joco-serius: Esoteric Humor and the Incommensurability of Laughter,” ch. 17, pp. 515-530, 516-518 and Albrecht Classen, intro., both in Laughter in the Middle Ages and Early Modern Times: epistemology of a fundamental human behavior, its meaning, and consequences, ed. by Albrecht Classen (Berlin: Walter de Gruyter, 2010), pp. 113-114.

73

Thomas Wright, A History of Caricature and Grotesque in Literature and Art, illus. by F. W. Fairholt (orig. pub. London, 1875), Project Gutenberg, released Jan. 22, 2014, https://www.gutenberg.org/files/44566/44566-h/44566-h.htm.

74

“For there is no law under heaven which is not supplied with equity.” Francis Bacon, ‘The Jurisdiction of the Marches,’ in Spedding, VII, p. 602, HathiTrust, https://hdl.handle.net/2027/uc1.b3924335.

75

Francis Bacon uses the word “seasonable”; see Montagu, I, p. 80, HathiTrust, https://hdl.handle.net/2027/njp.32101068998481.

76

For further reading, see, e.g., David Dolinko, “Some Naïve Thoughts about Justice and Mercy,” Ohio State Journal of Criminal Law 4, pp. 349-360 (2007), http://moritzlaw.osu.edu/students/groups/osjcl/files/2012/05/Dolinko-PDF-03-11-07.pdf, and Martha C. Nussbaum, “Equity and Mercy,” Phil. & Pub. Aff. 22, no. 2, pp. 83-125, 92-97 (Spring, 1993), https://www.law.upenn.edu/live/files/3901-martha-nussbaum-equity-and-mercy — excerptpdf, JSTOR. http://www.jstor.org/stable/2265442).

On mercy as a theme in medieval and Renaissance romantic love poetry, see Michael Bryson and Arpi Movsesian, ch. 7.II, “Post-Fin’amour Italian Poetry: The Sicilian School to Dante and Petrarch,” Love and its Critics ...(Cambridge: Open Book Publishers, 2017, online), pp. 300-330, p. 306, https://www.openbookpublishers.com/htmlreader/978-1-78374-348-3/ch7.xhtml#_idTextAnchor031.

77

Andrew Zurcher, ch. 1, “Preamble: How Shall I Understand You?” Shakespeare and Law, (London: Arden Shakespeare, 2010), pp. 1-24, 13.

78

  “Season,” Alexander Schmidt, Shakespeare Lexicon and Quotation Dictionary, vol. 2, N-Z (New York: Dover 1971, rev. and enlarged from the Berlin: George Reimer 1902 ed.), pp. 1016-1017.

79

“Of Dispatch,” The Works of Francis Bacon (Roslyn NY: Walter J. Black, 1932), pp. 92-93.

80

See A.E. Loosley, “Francis Bacon and the James [the] First Bible”; William Smedley, ch. 17, “The Authorized Version of the Bible 1611,” The Mystery of Francis Bacon, and Tony Bushby, ch. 1, “What Was the Church Trying to Hide?” from the book, The Bible Fraud, all excerpted at Sir Francis Bacon’s New Advancement of Learning, SirBacon.org, http://www.sirbacon.org/links/bible.html.

81

E. K. Chambers, William Shakespeare: A Study of Facts and Problems, vol. 2. (Clarendon Press: Oxford, 1930), appendix d, p. 332.

82

MEA, citing [John] Lord Campbell, Lives of the Lord Chancellors, vol. 2 (Boston, 1874), p. 385. HathiTrust, https://catalog.hathitrust.org/Record/100266555. As to errors in Campbell, see Nieves Matthews, ch. 28, “The Two-Souled Monster,” Francis Bacon, The History of a Character Assassination, pp. 339-341.

83

William Reynolds, intro, ‘The Merchant of Venice,’ in The Bankside Shakespeare, vol. 3, ed. by Appleton Morgan (New York, 1888), p. 36, HathiTrust, https://hdl.handle.net/2027/mdp.39015082503056.

84

See Spedding, II, p. 63; George Stronach, letter to editor, “Shakespeare, Bacon, and Dr. Murray,” The Academy and Literature, vol. 64 (25 April 1903), pp. 421-423. https://books.google.com/books?id=xvXQ3PTqthYC.

85

Letter, The Works of Francis Bacon, in ten vols., vol. 5 (London, 1803), no. 80, p. 290 (from Rawley’s Rescuscitatio), HathiTrust, https://hdl.handle.net/2027/inu.30000108528492. Note: E. Kantorowicz wrote in The King’s Two Bodies that Egerton was a patron of the playwright/poet Samuel Daniel. This is now disputed. However, Egerton did hire John Donne to be his private secretary. On Daniel, see David Ibbetson, Law and Equity, Approaches in Roman Law and Common Law, ed. by E. Koops and W. J. Zwalve (Leiden: Martinus Nijhoff, 2014), p. 72. On Donne, see British Library, “Letters from John Donne about his secret marriage to Ann More,” https://www.bl.uk/collection-items/letters-from-john-donne-about-his-secret-marriage-to-ann-more.

86

MEA, p. 21.

87

MEA, foreword, p. xii; 40-41, 41 n. 16; see also George W. Keeton, ch. 4, “Sir Edward Coke and Shakespeare,” pp. 43-67, p. 43, in Shakespeare’s Legal and Political Background, (London: Pittman, 1967), Lord John Campbell, “Lives of the Chief Justices, vol. 1 (London, 1849), p. 243, HathiTrust, https://catalog.hathitrust.org/Record/000272904.
Allen D. Boyer found no evidence that Coke had ever attended a play. Sir Edward Coke and the Elizabethan Age (Stanford: Stanford University Press, 2003), p. 34.

88

Paul Raffield, intro., The Art of Law in Shakespeare (Oxford: Hart Publishing, 2017), p. 3.

89

E. A. Abbott, preface, Mrs. Henry Pott, The Promus of Formularies and Elegancies[…] (London, 1883), p. vii. See also Potts, pp. 25, 65-67, appendix L), HathiTrust, https://hdl.handle.net/2027/umn.31951002288344z.

90

Brian Vickers, intro., Francis Bacon, a Critical Edition of the Major Works, pp. xxiv to xxix.

91

Brian Vickers, “Bacon’s use of theatrical imagery,” in Francis Bacon’s Legacy of Texts, edited by W. A. Sessions (New York: AMS Press, 1990), pp. 171-213; R. J. W. Gentry, “Francis Bacon and the Stage,” Baconiana, reprinted at http://www.sirbacon.org/links/bacon&_the_stage.htm; Amy Alicia Leith, “Bacon on the Stage,” Baconiana (July 1909), pp. 150-162, HathiTrust, https://hdl.handle.net/2027/iau.31858001735426; http://www.sirbacon.org/leithbaconstage.htm; L. Biddulph, “Lord Bacon and the Theatre,” Baconiana, no. 108 (July 1943), http://www.sirbacon.org/links/lord_bacon_&_the_theatre.htm; Edwin Bormann, Francis Bacon’s Cryptic Rhymes and the Truth They Reveal, appendix to ch. 2, (London: Siegle, Hill, 1906), pp. 227-234, HathiTrust, http://hdl.handle.net/2027/uc1.$b681854.

92

MEA, foreword, Law v. Equity, p. xii.

93

O. Hood Phillips,  ch. 8, “The Trial in ‘The Merchant of Venice,’” Shakespeare and the Lawyers (London: Methuen, 1972), p. 110, n. 41.

94

Lord Normand, p. 43. I am indebted to Simon Miles for inquiring into Phillips’ “a little later.”

95

On corruption in the Elizabethan justice system, see Spedding, XIV, pp. 237-238, HathiTrust, https://hdl.handle.net/2027/uc1.31175012007947; Baker, Intro., p. 129.

96

See Henry Hallam, Intro., to the Literature of Europe in the Fifteenth, Sixteenth, and Seventeenth Centuries, vol. 1 (London, 1872), p. 83, HathiTrust, https://catalog.hathitrust.org/Record/011559899.

97

Spedding, I, p. 519, as cited in Edwin Bormann, appendix to ch. I, “Did Mr. James Spedding Really Know ‘Everything’ About Bacon?” The Cryptic Rhymes of Shakespeare and the Truth They Reveal, pp. 217-226, p. 220, HathiTrust, https://hdl.handle.net/2027/uc1.$b681854. Spedding notes two similarities between Bacon and Shakespeare in Spedding, VI, p. 139 (Bacon’s History of the Reign of King Henry VII), and p. 486 (“Of Gardens”). HathiTrust, https://hdl.handle.net/2027/uc1.b3618247.

Edwin Reed points out the need to read Bacon in English, Latin, and French to gain the full benefit of his cryptic meanings, since he wrote in foreign languages both to conceal and to reveal. Edwin Reed, “An Idiosyncracy,” Coincidences, Bacon and Shakespeare (Boston: Coburn, 1906), coincidence no. 36, pp. 70-71, HathiTrust, https://hdl.handle.net/2027/hvd.32044019185958.

98

James Spedding’s Feb. 15, 1867 response to St. Louis, Missouri  judge Nathaniel Holmes, author of The Authorship of Shakespeare (Boston, 1894), after reading Holmes’ book is reprinted in “Lochithea,” Baconian Reference Book, Commentarius Solutus, (New York: iUniverse, Inc., 2009), p. 596, https://archive.org/stream/BaconianReferenceBook/baconian_reference_book_archive#page/n333/mode/2up. The experts closing ranks against Holmes is reported in Alan Stewart, “The Case for Bacon,” in Shakespeare Beyond Doubt: Evidence, Argument, Controversy, ed. by Paul Edmondson and Stanley Wells (New York: Cambridge University Press, 2013), pp. 16-29, 21-22.

99

Spedding wrote, “What Milton said of Shakespeare may as truly be said of Bacon.” Spedding, XIV, p. 574, HathiTrust, https://hdl.handle.net/2027/uc1.31175012007947 (“That each heart/hath from the leaves of thy unvalued book/Those Delphic lines with deep impression took.”). Spedding also said that if Bacon were called upon to pronounce judgment upon himself, he would do so in the words of Isaac Comnenus in the play, Isaac Comnenus, written by Spedding’s friend, Sir Henry Taylor. Spedding, XIV, pp. 576-577; Sir Henry Taylor, Isaac Comnenus, end of Act III (London, 1827), https://books.google.ca/books?id=m1gJAAAAQAAJ. For more on Taylor, see “Taylor, Sir Henry,” Dictionary of National Biography, vol. 55, ed. by Leslie Stephen and Sidney Lee (London, 1898), pp. 410-412, 411. The Online Books Page may be useful.  http://onlinebooks.library.upenn.edu/webbin/metabook?id=dnb.

For the Taylor-Spedding correspondence related to whether Bacon was Shakespeare, see Henry Taylor’s Correspondence, (London, 1888), ed. by Edward Dowden, pp. 306-307. Also of interest may be pp. 313, 339, 355-357.

I think Bacon said what he wanted to say on the subject when he wrote to a friend, Dat veniam corvis; vexat censuram Columbas, a quotation from Juvenal Saturae I, 63: “The censor’s office is indulgent towards the crows but harasses the doves.” See “Latin Proverbs, Mottoes, Phrases, and Words: Group D,” English — Word Information, Robertson’s Words for a Modern Age, copyright 2003 to 2014, http://wordinfo.info/unit/3466/s:adages; Montagu’s preface to vol. I, Montagu, I, p. vi, HathiTrust, https://hdl.handle.net/2027/uc2.ark:/13960/t6zw1952d.

100

Spedding’s preface to Bacon’s Translation of Certain Psalms (1625), Spedding, VII (Longmans), pp. 267-268, as discussed in Mrs. Henry [Constance] Pott, Did Bacon Write Shakespeare? (in 2 parts) (London, [1884-189-?], p. 6, HathiTrust, https://hdl.handle.net/2027/mdp.39015082256259.

101

J. E. Roe, Sir Francis Bacon’s Own Story, p. 152, HathiTrust, http://hdl.handle.net/2027/njp.32101068587755. Helen Hackett used just twenty lines of the late Roe’s book to say that “most” anti-Stratfordian scholarship was of poor quality. The category would presumably include doubters, Oxfordians, Marlovians, Baconians, and those of other persuasions. For Baconians alone, the published scholarship would include at least all of Baconiana, the journal of the Francis Bacon Society, and all of the writings listed/linked to at www.SirBacon.org. See Helen Hackett, Shakespeare and Elizabeth, The Meeting of Two Myths (Princeton: Princeton University Press, 2009), pp. 159-160.

102

See Robert Ellis, ed., preface, Novum Organum, iii, in Spedding, I, pp. 85-86; 110, 112-113, HathiTrust, https://hdl.handle.net/2027/hvd.32044011598257.

103

Andrew Zurcher, ed. “Preamble: How Shall I Understand You?” Shakespeare and Law, pp. 8, 282, n. 3. Zurcher opens ch. 1 with a quotation from Francis Bacon and ch. 2 with a quotation from Edward Coke.

104

Zurcher, pp. 2, 282.

For a sample of the arguments against Shaxpere as Shakespeare, see William F. and Elizebeth S. Friedman, ch. 1, “The Great Controversy,” The Shakespearean Ciphers Examined (Cambridge: Cambridge University Press, 1958 and repr. in 2011), pp. 1-14, 10-11; N. B. Cockburn, ch. 30, “Was Shake-Speare a Lawyer?” The Bacon Shakespeare Question: The Baconian Theory Made Sane (Guildford and Kings Lynn: printed for the author by Biddles, Ltd, 1998), pp. 338-367, to be further cited as “BSQ”; Andrea E. Mays, ch. 2, “Adieu...Remember Me,” The Millionaire and the Bard: Henry Folger’s Obsessive Hunt for Shakespeare’s First Folio (New York: Simon and Schuster, 2015), pp. 26-28; The Shakespeare Authorship Page, www.shakespeareauthorship.com (site managed by David Kathman and Terry Ross); Penn Leary, “A Reply to ‘The Code That Failed’ by Terry Ross,” The Shakespeare Authorship Page (July 20, 1996). http://shakespeareauthorship.com/bacpl2.html.

105

Daniel J. Kornstein, prologue, Kill All the Lawyers, Shakespeare’s Legal Appeal (Princeton: Princeton University Press, 1994), pp. xiii.

106

David Simpson, “Francis Bacon 1561-1626,” Internet Encyclopedia of Philosophy. http://www.iep.utm.edu/bacon/.

107

Robert P. Ellis, “Preface,” Francis Bacon: The Double-Edged Life of the Philosopher and Statesman (Jefferson NC: McFarland, 2015), p. 2.

108

For Jean de La Fontaine (1621-1695), reteller of Cinderella, as an authority on both fables and the Gesta Romanorum, see T. F. Crane, “Medieval Sermon-Books and Stories,” Proceedings of the American Philosophical Society 21, no. 114 (Mar., 1883), pp. 49-78, 53-54, JSTOR, http://www.jstor.org/stable/pdf/982361.pdf.

109

J. H. Baker, ch. 12, “Law Making,” An Introduction to English Legal History, 4th ed. (London: Butterworths, 2002),
p. 202.


Note: the footnote numbering here will differ from the printed book.

"For there is no law under heaven which is not supplied with equity."
--Francis Bacon, Jurisdiction of the Marches


Christina G. Waldman (Photo credit: Samuel Lucas Benick)
ChristinaGWaldman.com

Christina G. Waldman, preface and ch. 1, Francis Bacon’s Hidden Hand in Shakespeare’s ‘The Merchant of Venice’: A Study of Law, Rhetoric, and Authorship (New York: Algora Publishing, 2018), pp. 1-4, 15-32, web conversion by Rob Fowler, reprinted with permission, SirBacon.org.

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