Sec. 97. "I crave the law."

"Shy. My deed's upon my head; I crave the law, The penalty and forfeit of my bond."

Commenting on the tragic expression, as one who deeply felt his wounded legal right, Von Ihering remarks of this phrase: "In these four words the Poet has described the relation of law, in the subjective, to law in the objective sense of the term and the meaning of the struggle for law in a manner better than any philosopher of the law could have done it. These four words change Shylock's claim into a question of the law of Venice. To what mighty, giant dimensions, does not the weak man grow, when he speaks these words: It is no longer the Jew demanding his pound of flesh: it is the law of Venice itself knocking at the door of Justice; for his rights and the law of Venice are one and the same; they both stand or fall together."2

Secs. 98. Tender in open court.

"Por. Is he not able to discharge the money?

Bass. Yes, here I tender it for him, in the court;
Yea, twice the sum: if that will not suffice,

I will be bound to pay it ten times o'er,
On forfeit of my hands, my head, my heart:
If this will not suffice, it must appear
That malice bears down truth."3

Bassanio's act, accompanied with the money and these words: "Here I tender it for him in the court," would have the force and effect of a legal judicial tender of the money due to Shylock, for since the debt incurred by Antonio was really on account of Bassanio, he would have sufficient authority from the debtor to appear for him and make the tender. The money is generally required

1 Merchant of Venice, Act IV, Scene I.

2 Von Ihering's Struggle for Law (5th Ed.), 81.

3 Merchant of Venice, Act IV, Scene I.

Coke, Litt. 206; 2 Maule & S. 86.

to be present and actually offered, but of course the refusal of Shylock to receive the money amounted in law to a legal waiver of the actual production of the money.1

The Court's decision as to the effect of this tender, however, in the course of the decision, as depriving Shylock of his principal, was not according to the law of England, as the only result attached to a rejected tender was to put a stop to accruing damages and interest on the debt tendered and refused.2

Sec. 99. Effect of legal precedent.

"Bass..

Wrest once the law to your authority:
To do a great right, do a little wrong;
And curb this cruel devil of his will.

Por. It must not be; there is no power in Venice
Can alter a decree established:

"Twill be recorded for a precedent;

And many an error, by the same example,
Will rush into the state: it cannot be."

12 Maule & S. 86; 2 Parsons, Contr. 154.

23 Q. B. 915; 11 M. & W. Exch. 356.

Ophelia and her Father, Polonius, are made to discuss the legal

subject of a tender, in Hamlet, as follows:

"Oph. He hath, my lord, of late, made many tenders

Of his affection to me.

Pol. Affection? puh: you speak like a green girl,
Unsifted in such perilous circumstance.

Do you believe his tenders, as you call them?
Oph. I do not know, my lord, what I should think.
Pol. Marry, I'll teach you: think yourself a baby;
That you have ta'en these tenders for true pay
Which are not sterling. Tender yourself more dearly;
Or (not to crack the wind of the poor phrase,
Wronging it thus,) you'll tender me a fool."

(Act I, Scene III.)

Tender is referred to in the LXXXIII' Sonnet, as follows:
"I found, or thought I found, you did exceed
The barren tender of a poet's debt."

Merchant of Venice, Act IV, Scene I.

(3, 4.)

The Poet here refers to the doctrine of stare decisis, and the sacredness of established precedents in the law, which have been truly said to be the real "bulwarks" of the law. From the time of Edward III to that of Elizabeth, the inviolability of established precedents was inculcated by the courts and lawyers with more zeal, perhaps, than at any other period in English history.1 Speaking of the necessity of adherence to precedents, in the administration of the law, Chancellor Kent said: "A solemn decision upon a point of law, arising in any given case, becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made, upon solemn argument and mature deliberation, the presumption is in favor of its correctness; and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and conduct by it. If judicial decisions were to be lightly disregarded we should disturb and unsettle the great landmarks of property."2 Hence, the legal conclusion of the court, on the suggestion that the settled rules of law be set aside for this particular case, that it could not be; ""Twill be recorded for a precedent; and many an error by the same example will rush into the state," since "there is no power in Venice can alter a decree established," evidences the fact that the Poet made the same adherence to precedent, which had always obtained in England, prevalent in Venice, too.

.

'Kent said: "Throughout the whole period of the Year Books, from the time of Edward III, to that of Henry VII, the judges were incessantly urging the sacredness of precedents and that a Counsellor was not to be heard who spoke against them, and that they ought to judge as the ancient sages taught." 1 Kent's Comm. (12th Ed.) 476; 33 Hen. VI, 41.

21 Kent's Com. (12 Ed.), 476.

Sec. 100. Portia's judgment on the bond.-
"Por. Why, this bond is forfeit;

And lawfully by this the Jew may claim
A pound of flesh, to be by him cut off
Nearest the merchant's heart:

For the intent and purpose of the law
Hath full relation to the penalty,
Which here appeareth due upon the bond.
Therefore, lay bare your bosom.

Are there balance here, to weight the flesh?
Have by some surgeon, Shylock, on your charge,
To stop his wounds, lest he do bleed to death.
It is not so expres'd; but what of that?
'Twere good you do so much for charity.

A pound of that same merchant's flesh is thine;
The court awards it and the law doth give it.
And you must cut this flesh from off his breast;
The law allows it and the court awards it.
Tarry a little; there is something else.-
This bond doth give thee here no jot of blood;
The words expressly are, a pound of flesh:
Take then thy bond; take thou thy pound of flesh;
But, in the cutting it, if thou dost shed

One drop of Christian blood, thy lands and goods
Are, by the laws of Venice, confiscate

Unto the state of Venice.

Shy. Is that the law?

Por. Thyself shalt see the act:

For, as thou urgest justice, be assur'd,

Thou shalt have justice, more than thou desir'st. . Shy. I take this offer then;-pay the bond thrice and let the Christian go.

Bass. Here is the money.

Por.

Soft;

The Jew shall have all justice;-soft: no haste;-
He shall have nothing but the penalty.
Therefore, prepare thee to cut off the flesh.
Shed thou no blood; nor cut thou less, nor more,
But just a pound of flesh: if thou tak'st more,
Or less, than a just pound-be it but so much
As makes it light or heavy, in the substance,
Or the division of the twentieth part

Of one poor scruple; nay, if the scale do turn.
But in the estimation of a hair,—

Thou diest and all thy goods are confiscate.
Why doth the Jew pause? Take thy forfeiture.
Shy. Give me my principal and let me go.
Bass. I have it ready for thee; here it is.
Por. He hath refused it in the open court;

He shall have merely justice and his bond.
Shy. Shall I not have barely my principal?
Por. Thou shalt have nothing but the forfeiture,
To be so taken at thy peril, Jew.

Shy. Why then, the devil give him good of it,
I'll stay no longer question.

Por. Tarry, Jew,

The law hath yet another hold on you.

It is enacted in the laws of Venice,

If it be proved against an alien,

That by direct or indirect attempts,
He seek the life of any citizen,

The party, 'gainst the which ne doth contrive,
Shall seize one-half his goods; the other half
Comes to the privy coffer of the state;
And the offender's life lies in the mercy
Of the duke only, 'gainst all other voice.
In which predicament, I say thou stand'st:
For it appears, by manifest proceeding,
That indirectly and directly too,

Thou has contrived against the very life
Of the defendant; and thou ha'st incurr'd
The danger formerly by me rehearsed.

Down, therefore, and beg mercy of the duke."1

The

Subjected to critical legal analysis, it would seem that injustice was done to Shylock, by this judgment. validity of the bond, in the first instance, ought not to have been recognized, but after its recognition, by the Court, it ought not, subsequently to have been invalidated by such cunning as was indulged in by Portia. The decision is presented as the only possible one, before the law, as no one in Venice doubted the validity of the bond. Antonio, his friends, the court and all were agreed that the bond gave him a legal right and after the decision of the Court to this effect, and the entire assembly regarded his

1 Merchant of Venice, Act IV, Scene I.