Antonio confessed. This is mentioned only to show that the conduct of the cause was more according to a special code of practice invented by the Poet, than by way of strict adherence to the practice in a court of justice.

Sec. 92. Nature of Shylock's suit.

"Por. Of a strange nature is the suit you follow; Yet in such rule, that the Venetian law Cannot impugn you, as you do proceed."

The observation of the Court that the suit was of a "strange nature" is clearly indisputable, but the other conclusion that "the Venetian law cannot impugn you, as you do proceed," is at variance with the later conclusion of the Court itself, who adjudges that the very object of the suit was counter to the law of Venice and of such a criminal nature as to make forfeit the life of Shylock and his estate confiscate unto the Crown. In view of this later conclusion, the statement here made that the law cannot impugn him, in the progress of such an unrighteous cause, is at variance with all rules of jurisprudence. All contracts having for their object the taking of human life have always been regarded as void, because contrary to good morals. Nor could it be insisted that this proceeding would have been legal, according to the Twelve Tables of the Romans, for the procedure is at variance with the authorized process for the punishment of the debtor, according to the Twelve Tables, as history reproduces them.3

1 Merchant of Venice, Act IV, Scene I.

'Lawson, Contracts (2nd Ed.) 343, and citations.

'By the 3' Table, the debtor had until thirty days after judgment to pay his debt and if he did not then pay or give security, or sell himself, by entering into the nexum, his creditor could seize him, load him with chains and treat him as a slave. Then after sixty days more, if he failed to pay, he was brought into the market place and either put to death or sold as a slave into Etruria. It was only where there were several creditors that he might, at their election, be divided and his body partitioned between them. Gibbon, vol. VII, p. 92; Gravina, De Jura Nat.

Portia claims to be able to show a special statute or decree holding the object of this bond to be a crime and if this were true the same statute would, by necessary implication, make void the bond, given to evidence such. criminal act as the contract contemplated.1

Sec. 93. Portia's plea for mercy.

"Por. The quality of mercy is not strain'd;
It droppeth, as the gentle rain from heaven
Upon the place beneath: it is twice blessed;
It blesseth him that gives and him that takes:
'Tis mightiest in the mightiest; it becomes
The throned monarch better than his crown:
His scepter shows the force of temporal power,
The attribute to awe and majesty,

Wherein doth sit the dread and fear of kings;
But mercy is above this scepter'd sway;
It is enthroned in the hearts of kings;
It is an attribute to God himself;

And earthly power doth then show likest God's,
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this,-
That, in the course of justice, none of us
Should see salvation: we do pray for mercy:
And that same prayer doth teach us all to render
The deeds of mercy."2

This plea for mercy is so beautiful that any comment thereon seems almost sacrilege. That "earthly power" shows "likest God's, when mercy seasons justice," is an apt comparison of the institutions of man with the Christian idea for the remission of the sins of the guilty, who confess and seek forgiveness. Mercy, in the legal acceptation of the term, is the total or partial remission of the Gent. etc., Sec. 72; Niebuhr, Hist. Rome, vol. 2, p. 597. And eminent historians contend that this law only related to the division of the debtor's property, not his person, at all. Montesquieu, Esprit des Lois, b. 29, c. 2; Bynkershoek, Observ. Jur. Rom. lib. 1, c. 1; Heinneccius, Antiq. Rom. lib. 111, tit. 30, sec. 4. 1 Lawson, Contracts, supra.

2 Merchant of Venice, Act IV, Scene I.

punishment to which a person guilty of some offense is subject under the law. In seeking mercy, before the adjudication of the punishment against Antonio, or before the mandate or judgment of the court, the Poet recognized the distinction in law, between mercy or clemency and pardon, for a pardon is the remission of punishment, after the judgment of the court, while clemency or mercy is extended before sentence.2

Sec. 94. Antonio's confession of the bond.

"Por. Do you confess the bond? Ant. I do." 773

This course, on Portia's part, was consistent with the practice frequently resorted to, in order to save the time and formality of resorting to proof, of admitting certain facts, which are not disputed, without calling for the proof thereof. The admission was drawn forth, in the orderly manner, in the progress of the cause, for until the interest of the parties appeared, an admission would not have been availing, as the interest must appear in all cases at the time of making an admission. After the interest of the parties appeared, however, then the admission here elicited had the force and effect of a regular judicial admission, which would be conclusive evidence against the party making it."

1 Jacob, Law Dictionary.

2 Bouvier's Law Dictionary; Rutherforth, Inst. 224; 3 Story, Con., Sec. 1488.

In passing upon Alcibiades' defense of the felon, in Timon of Athens, the Senators hold this conference: "1 Sen. Nothing emboldens sin so much as mercy.

2 Sen. Most true; the law shall bruise him." (Act III, Scene V.)

"Merchant of Venice, Act IV, Scene I.

2 Stark, 41.

1 Greenl. Evid. Sec. 205; 2 Campb. 341.

Sec. 95. Plea for judgment.—

"Shy.

him,

The pound of flesh, which I demand

Is dearly bought, is mine, and I will have it:
If you deny me, fie upon your law.

There is no force in the decrees of Venice:

2

I stand for judgment: answer; shall I have it?"1 Shylock's plea for judgment, based upon the admission or confession of the execution of his bond, was properly urged, from a legal standpoint—if the legality of his bond were admitted—since the judgment or conclusion of the law, upon the facts found, or admitted, follows naturally, in the orderly course of legal proceedings, upon the fact of such admission. The form of judgment to which a legal bond, or other written obligation for the payment of money would entitle one to recover, would be what is known as a judgment quod recuperet, that is, a judgment in favor of the plaintiff that he do recover, rendered whenever he has prevailed upon an issue of fact, duly established, or admitted by the opposing party to the cause.3 A judgment on confession is called a judgment cognovit actionem, and such judgment is properly rendered whenever the defendant, instead of contesting the right of recovery, confesses the plaintiff's action. But, of course, on grounds of public policy, a judgment would not be rendered in a court of justice, which has for its object, the taking of a human life, according to civil contract, for the concern of the state for the lives of its citizens would prevent the enforcement of such a judgment and the contract would be held to be illegal because of its being in contravention of good morals."

1 Merchant of Venice, Act IV, Scene I.

2 Tidd Prac. 930.

Stephen, Pl. 126.

'Freeman on Judgments.

Chitty, Com. Law, 215, 217, 228, 250.

Commenting upon Shylock's attitude, as presented in this verse, as that of the seeker after justice in all climes and under all

Sec. 96. Justice of Shylock's plea.—

"Por.

I have spoken thus much,
To mitigate the justice of thy plea;

Which, if thou follow, this strict court of Venice,
Must needs give sentence 'gainst the merchant there."1

2

This recognition of the legality of the bond, as the only alternative of the court, if the condition of the bond was insisted upon, is no doubt followed, because of the dramatic effect produced and the anxiety created as to the ultimate issue of the cause, after due recognition of the rights of the Jew, by the Court. Of course, as shown by Von Ihering, the recognition of the legality of the bond, in the first instance, by the Court, was, from a strictly legal standpoint, all wrong, as the fact that it had for its object the taking of human life, or the serious maiming of a human being, made its object so far counter to good morals and against public policy, as to have justified the Court in holding that it was absolutely void; but as this would not have had the dramatic effect of holding the interest and creating the same anxiety in the final outcome of the trial, as the course pursued by the Poet, it is doubtless true that from a poetic standpoint the sacrifice of real justice and strictly legal rules, for the more striking system of jurisprudence adopted, was justified, in order to subserve the object had in view.

conditions, Dr. Von Ihering, observed: "It is hatred and revenge that take Shylock before the court to cut his pound of flesh out of Antonio's body; but the words which the Poet puts into his mouth are as true in it as in any other. It is the language which the wounded feeling of legal right will speak at all times and in all places; the power, the firmness of the conviction that law must remain law, the lofty feeling and pathos of the man who is conscious that, in what he claims, there is question, not only of his person, but of the law." Von Ihering's Struggle for Law, p. 80.

1 Merchant of Venice, Act IV, Scene I. 2 Von Ihering's Struggle for Law, p. 81.