Part Three - Shakespeare's Alleged Blunders
in Legal Terminology

In the foregoing comments we have repeatedly called attention to a fact of importance which Mr. Devecmon strangely seems to forget; viz., that in no one of the cited cases was Shakespeare bound to make his characters use with precision the technical phraseology of English law. Had he attempted so to do, he would have shown himself an unskilful dramatist violating the very first principles of playing, "Whose end, both at the first and now, was and is, to hold, as ‘twere, the mirror up to nature, to show Virtue her own feature, Scorn her own image, and the very age and body of the time his form and pressure." (Hamlet, III, ii, 19-22, Sprague’s ed.)

Especially in the great court scene (Mer. of Ven., IV, i, 160-385, Sprague’s ed.) does brother Devecmon arraign Shakespeare; thus:

"In this play Shakespeare not only manifests his lack of knowledge of the technique of the legal profession: he shows a profound ignorance of law and of the fundamental principles of justice. Portia makes five distinct rulings which are bad in law, in logic, and in morals."

Let us glance at the specifications under this sweeping charge. The first four are as follows:

Answer. We may freely admit that these four rulings are contrary to English law and precedent. Devecmon is at some pains to show this. But such showing is irrelevant. English procedure is out of the question.

Shakespeare is faithfully reproducing the substance of a scene set forth in an Italian novel, Il Pecorone, composed more than two hundred years before he began to write, and describing what took place in Venice in some indefinite past age. In that novel, the court, perhaps following the old law of the Twelve Tables of Rome, to which a realistic interpretation was then given by scholars generally, granting to creditors the right to cut up insolvent debtors [Qui non habet in aere, luat in cute!] —the court, after apparently recognizing the legality and validity of the contract, appeals in vain to the Jew for mercy to the bankrupt debtor. Then the court addresses the Jew, "Do you cut a pound of this man’s flesh where you choose." At the instant when the Jew was to begin cutting, the judge interposed with, "If you take more or less than a pound, I will order your head to be struck off ; and besides, if you shed one drop of blood, off goes your head." Next, the Jew makes successive attempts to get 100,000 ducats, 90,000, 80,000, etc., but the judge flatly refuses. "Give me at least my 10,000 ducats" [the principal], says the Jew. The judge replies, "I will give you nothing: if you will have the pound of flesh, take it: if not, I will order," etc.

We must again insist that these crude proceedings of a court held perhaps five hundred or a thousand years ago are not intended as a picture of an Elizabethan tribunal scene, but that the dramatist, while following English usage sufficiently to make his audience understand what is supposed to be taking place, is really in imagination in mediaeval Venice, giving "the very age and body of the time his form and pressure." The same fact must be borne in mind in considering the fifth specification under Devecmon’s charge against Shakespeare, of ignorance, unreason, and injustice; viz.,

Answer. Although this particular feature is not in the Italian novel on which, as we have seen, Shakespeare constructed a great part of the trial scene, it, as also the other proceedings, finds a close parallel in a case narrated by Mr. John T. Doyle of Califomia in the Overland Monthly of July 1886 (partly reproduced in Furness’s Variorum Edition of Merchant of Venice, pp. 417-420). Let us premise some particulars. Sojourning for some months in the city of Granada, Nicaragua, in 1851 and 1852, Mr. Doyle became involved in half a dozen lawsuits, in several of which the five following steps occurred:

1. The magistrate (Alcalde) "directed some one present to go and call the plaintiff into court. So (Mer. of Venice, IV, i, 14) the duke sent for Shylock, "Go and call the Jew into court."

2. The facts being agreed upon, the judge in Nicaragua announced that he proposed to submit the case to a practicing lawyer, a jurisconsult, unless competent objections were made. In like manner (Mer. of Ven., IV, i, 100, 101) we hear the duke say, "Bellario, a learned doctor, whom I have sent for to determine this." Bellario, being ill, dispatches the disguised Portia to act in his stead, if accepted (Mer. of Venice, IV, i, 153-156, Sprague’s ed.). The duke graciously accepts the substitute, saying, "You are welcome; take your place" (IV. i, 161).

3. The plaintiff, too, must distinctly accept the referee. After some delay Shylock does this with emphasis (IV, i, 229-230) —

4. One condition further must be fulfilled to give the new judge complete jurisdiction; the defendant also must formally assent. Antonio does it cordially (IV, i, 234, 235) —

5. Another curious coincidence comes to light between the custom in Spanish-American countries and that exemplified in Venice; as we may fairly infer from what takes place in IV, i, 397-444. Mr. Doyle tells us that the custom of the country (costumbre del pais) required that the successful party, in a suit in which such amicus curiae was called in, should bestow on the referee a honorarium ("gratification" they called it) for his services. It was $200 in Doyle’s case. Similarly the duke suggests, "Antonio, ‘gratify’ this gentleman" (IV, i, 397). Three thousand ducats are accordingly offered the brilliant jurisconsult, Portia. She declines the money, but takes in lieu of it gloves and a precious ring.

6. We come now to what Devecmon regards as "the climax" of ignorance or illegality, the sudden assumption of criminal jurisdiction by this court. Mr. Doyle’s parallel case is in brief outline as follows:

"A question arose in this city as to the disposition of the estate of a gentleman who had been slain at Mazatlan [Mexico] in an encounter with his partner, while discussing in anger the state of their accounts. There had been a trial over the case in Mexico. The surviving partner put forward claims before our court, which caused me, in behalf of the next of kin of the deceased, to send to Mexico for a complete transcript of the judgment record there." [Mr. Doyle here gives an account of the official inquiry as to the cause of death. The inquiry was made before the Alcalde, who conducted the inquiry with evident partiality to the survivor. At the conclusion the Alcalde acquitted him. Intermediate proceedings took place.] "The Fiscal (State’s Attorney), on behalf of the State, intervenes, and appeals to the Supreme Court. There the witnesses are re-examined; they contradict each other badly, and break down * * * The judgment below is then reversed, the defendant sentenced to death, and the Alcalde, before whom the trial had been had below is sentenced to pay a fine of $100 for his partiality and misconduct!"

There is no reason to suppose that this Mexican case is a solitary instance. A sufficient investigation would probably reveal the fact that in all the Spanish-American nations, and very likely in all of those of southern Europe, at least in their early stages, courts of justice, like Turkish cadis today, freely exercised equity, civil, and criminal jurisdiction.

How Shakespeare came to know of these customary forms, or, if he did not know of them, by what strange accident he lighted on them, is a mystery. Mr. Doyle remarks, "If Shakespeare knew nothing of Venetian law, there was no great improbability in assuming it to resemble that of. Spain, considering that both were inherited from a common source, and that the Spanish monarchs had so long exercised dominion in Italy." Let us at any rate be slow to charge him with ignorance. "The range and accuracy of his information," says Lowell, "were beyond precedent or later parallel."

Like many before him, Devecmon charges Portia (i. e. Shakespeare) with "cruelty" towards Shylock, "cruelty surpassing that of the thumb screw or the ‘rack,’ in making him ‘abandon the cherished religion of his fathers and his race, and embrace the hated religion of the Christian.’" Such critics forget that, according to the current belief in those remote ages and even in Shakespeare’s day, instead of cruelty, the greatest possible kindness was shown to Shylock, rescuing him as a brand from the burning. They verily believed that, by professing Christianity and receiving baptism, he would be saved from endless damnation and made sure of an. eternity of bliss!

Devecmon accuses Portia’s rulings as being "bad in morals," aside from the law. Here is a man who for three months has had murder in his heart, and has often gloated over the anticipated joy of killing the irascible yet sweet-souled Antonio. He has come in order to perpetrate the horrid deed in open court. There, in presence of the duke, he has whetted the knife to cut out Antonio’s heart. He has scouted the pathetic appeals of the duke and of Portia for mercy. He has produced the scales which he has brought into court to weigh the flesh. He has fiercely avowed his fixed intent. He is, impatient to spring like a tiger upon his meek victim. He has broken the law of Venice and of God. He has forfeited life, prosperity, and liberty. Yet he is instantly pardoned. He is set free. He is allowed to retain half of his ill-gotten millions, to do with them as he pleases. The other half is held in trust for his daughter and her husband, the whole to be theirs upon his death.

Says Devecmon, "We feel little pity for Shylock, but our sense of reverence for the law is shocked—the majesty of the law is degraded."

But what "majesty of law" is upheld when a contract contra bonos mores is allowed to be enforced? Such Devecmon concedes this to have been, quoting the familiar maxim, Ex turpi causa lion oritur actio. The law of the Twelve Tables, which we have quoted, and which in the remote past was interpreted to permit the creditors to cut an insolvent debtor in pieces, was very likely in Shakespeare’s mind. He applies a crucial test. He shows its sharp antagonism to "the higher law;" that,

Never again, in England at least, could a law authorizing murder seem valid. It was high time that some one should show that when man’s law squarely conflicts with God’s law, man’s must give way.

"Majesty of Law!" Would it, then, have vindicated the wicked law, or made it more revered, if Portia had permitted the butchery of Antonio? "We have a law, and by that law he ought to die," said some of the ancestors of Shylock (John, xix, 7), and the greatest crime of all the ages was perpetrated, it was claimed, in strict accordance with law!

Homer B. Sprague, Ph.D.,
Ex-Pres. Univ. of N. Dakota.