THE LAW AND PROCEDURE IN
THE MERCHANT OF
VENICE." BY J. B. MACKENZIE. THE first point which occurs to a contro versialist, pursuing this not unprofit able, if academic, theme, is: would an action for the default chargeable against Antonio have lain at the Jew's instance? Could he possibly have appealed to the maxim—pro genitor of the action on the case— Ubi jus ibi rcmedium; or, as we have this article in our Palladium of civil rights expressed in Coke upon Littleton, Lex non débet deficere conquerentibas in justitia cxhibcnda—a free transla tion of which is,—the law wills that, in every case where a man is wronged and endamaged, he shall have a remedy? It has been generally conceived that Shakespeare, whenever he deals with legal matters, imports English jurisprudence into his plays. We cannot reasonably impute to him such a knowledge of the more ab struse principles of law as would qualify him to determine whether or not a grievance, redress for which might be obtained from a court of justice, had an adequate basis of fact for its support. In this particular case, the comedy itself, as well as the origin of the plot, supplies evidence that the dramatist had not the temerity to bring his own country's law into request for the maintenance of his infirm position. Under that law, the plaintiff would have been rudely impaled on both horns of the prescription, ex turpi causa, ex dolo malo, oritur non actio. Portia, immediately after her salutation by the Duke, observes to Shylock. "Of a strange nature is the suit you follow; yet in such rule that the Venetian lav.r cannot im pugn you, as you do proceed." Again, when Bassanio implores her to abate the law's rigor, she replies, "It must not be; there is no power in Venice can alter a decree estab lished; 'twill be recorded for a precedent,
and many an error, by the same example, will rush into the State; it cannot be." She utters finally, in the speech adjudging confiscation of Shylock's wealth, and asserting his life to be at the Duke's disposal, the formula, "It is enacted by the law of Venice." It will, doubtless, be answered that, as nobody was concerned with any law but such as might exist in Venice, Portia, as mouthpiece for the Duke, would naturally speak as she did. The writer, notwithstand ing—efficacy no less distinct being attainable through an unspecific declaration~believes that Shakespeare, meant to do nothing more at best than retail his understanding of the Venetian Code. Now, it cannot be affirmed, with any cer tainty, that so novel a wrong as that for which Shylock demanded compensation was cognizable by a court of Venice. One would imagine that, with the moral sentiment im parted by such a centre of erudition as Padua—a quarter to which every nation of the world looked for instruction—a suitor advancing a plea grounded in virulence as great as that exemplified by the Jew's claim, could hope for no relief from any forum acknowledging its influence, or espousing its ideals. In the English Gestœ Romanorum, a chron icle prepared in the reign of Henry VI., there is a story, from which it has been con fidently declared that Shakespeare borrowed his conception, "of a knight who loved a lady" having applied to a merchant for money, and secured a loan, on the condition "that thou make to me a charter of thine owne blood, in condición that yf thowe kepe not the day of payment, hit shalle be lefulle to me for to draw away alle the flesh of 'thy body froo the bone with a sharpe sword."
