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.
