case as won, then the Court struck down the previously recognized right, by the strategem that the bond gave him no blood, but only the pound of flesh. Of course, since there could be no flesh without blood, in recognizing the right to take the flesh, the Jew legally would have had all incidental powers necessary to the full enjoyment of the affirmative legal right and could draw the blood, as a necessary incident of his right to take the flesh, for without it, his right could not be exercised. It was axiomatic, at common law, that where one had a legal right, he had all the remedies necessary to a full enjoyment of that right, for otherwise the right itself would be without avail. Viewing the humbled Jew, after the rendition of this decision, with all the pathos that the picture of the Poet presents, as the disappointed seeker after justice, who had such entire faith in law and the justice of his cause, would naturally suggest to the scientific jurist, Dr. Von Ihering, in his Struggle for Law, observed of this trial scene: "When he finally succumbs under the weight of the judge's decision, who wipes out his rights by a shocking piece of pleasantry; when we see him pursued by bitter scorn, bowed, broken, tottering on his way, who can help feeling that in him the law of Venice is humbled; that it is not the Jew, Shylock, who moves painfully away, but the typical figure of the Jew in the middle ages, that pariah of society, who cried in vain for justice? His fate is eminently tragic, not because his rights are denied him, but because he, a Jew, of the middle ages has faith in the law we might say just as if he were a Christian-a faith in the law firm as a rock, which nothing can shake and which the judge himself feeds, until the catastrophe breaks upon him like a thunder clap; dispels the illusion and teaches him that he is only the despised medieval Jew to whom justice is done by defrauding him."1 1 Von Ihering's Struggle for Law, pp. 81, 82 (5th Ed.). Speaking further of this decision, in a footnote, the learned Von Ihering also observed: "The eminently tragic interest which we feel in Shylock I find to have its basis precisely in the fact that justice is not done him; for this is the conclusion to which the lawyer must come. The Poet is, of course free to build up his own system of jurisprudence, and we feel no reason to regret that Shakespeare has done so here; or rather that he has changed the old fable in nothing. But when the jurist submits the question to a critical examination, he can only say that the 'bond was, in itself, null and void because its provisions were contrary to good morals. The Judge should, therefore have refused to enforce its terms on this ground from the first. But as he did not do So, but admitted its validity, it was a wretched subter; fuge, a miserable piece of pettifoggery, to deny the man whose right he had already admitted, to cut a pound of flesh from the living body, the right to the shedding of the blood, which necessarily accompanied it. Just as well might the judge deny to the person whose right to an easement he acknowledged, the right to leave footmarks on the land, because this was not expressly stipulated for in the grant." Von Ihering's Struggle for Law, (5th Ed.) pp. 82, 83. Notwithstanding the total absence of justice, when judged by strict legal rules and formulas, in this judgment, such writers as Doctor Hudson, in commenting on this trial scene, speaking of the judgment, said: "In her judge-like gravity and dignity of deportment; in the extent and accuracy of her legal knowledge; in the depth and appropriateness of her moral reflections; in the luminous order, the logical coherence, and the beautiful transparency of her thoughts, she almost rivals our Chief Justice Marshall." In the gravity and deportment and the beautiful and dramatic presentation of the climax, this may be true, but surely not in the "extent and accuracy of her legal knowledge." Chief Justice Marshall's judgments were according to established legal precedents and rules of law; by his opinions property rights were sustained and not stricken down by pleasantries or subterfuges. Of what avail is it, to a litigant, whose rights have been denied him, by improper legal standards, that the jurist who pronounced the judgment was becomingly garbed, or pronounced the opinion, striking down his rights, with eloquence and sophistry? The only thing a litigant cares about is securing a righteous judgment in his cause. If he loses his cause, it is immaterial that the executioner of his rights was of noble mien, in the denial of the law, as applied to his cause. The becoming picture of Portia, presented by the Poet, viewed by the lawyer, fails to attract, as Sec. 101. Commutation of punishment. "Duke. That thou shalt see the difference of our spirit, I pardon thee thy life, before thou ask it: For half thy wealth, it is Antonio's; A pardon is an act of grace, from the power intrusted with the execution of the laws, which exempts the one upon whom it is bestowed from the punishment inflicted. for the crime committed. The pardon, here, unasked, of the life of Shylock, forfeited by the law, for the offense he had committed in conniving at the life of a human being, is a familiar form of extending the pardoning power. As a pardon does not generally affect the rights of any other whose status would be affected thereby, if it operated upon other than the criminal, the Duke recognizes that the right of Antonio to the half of the culprit's property shall not be affected by the pardon. The Duke's promise to Shylock that "humbleness" might "drive into a fine" the forfeiture of the other half of his estate, is, virtually, a promise of a commutation of his punishment, in this regard, by changing the punishment of a forfeiture of half of his estate, into a less severe one, by way of a fine.* does the dejected picture of the poor old Jew, denied his supposed legal rights for improper reasons. Such a judgment is not regarded with rapt admiration by those who appreciate the majesty of the law, nor is the jurist pronouncing such an opinion surrounded by a legal halo, but as the recipient of an erroneous judgment and one whose cause was wrecked upon the shoals of judicial shipwreck, the Jew is regarded with commiseration, rather than the contempt that the laity heap upon him. 1 Merchant of Venice, Act IV, Scene I. 24 Bl. Com. 400; 1 Park, Cr. Cas. 47. 10 Johns. (N. Y.) 232. 'Bouvier's Law Dictionary. Sec. 102. Conveyance in use. "Ant. So please my lord the duke, and all the court, I am content, so he will let me have Two things provided more,-That, for this favor, The other that he do record a gift, Here in the court of all he dies possess'd, A use, in English law, was a confidence reposed in the tenant of land that he should dispose of the land according to the intention of the cestui que use, or him to whose use it was granted, and suffer him to take the profits. The use was the benefit or profit of the land held by the trustee for the benefit of the beneficiary. He to whose use or benefit the trust was intended was called the cestui que use.2 Before the Statute of Uses, in the reign of Henry VIII, uses were customarily used for the purpose of making devises of land. By this statute the use was transferred into possession, or the possession to the use, and the use was then called a vested use. After the statute, as before, a land owner could still make a conveyance to use, and the use could change from one to another, as before the statute, but the statute had the effect of vesting the legal estate and giving full effect to the transfer or disposition." This means of conveying the half of his estate, therefore, proposed by Antonio, according to the English law, was a perfectly proper conveyance by which half his estate could be devised, and the deed of gift, as a further exac 1 Merchant of Venice, Act IV, Scene I. 2 Tiedeman, R. P. (3d Ed.) Ch. Uses and Trusts. IV Reeve's History Eng. Law, pp. 363, 366. 27 Henry VIII, c. 10. 5 IV Reeve's History Eng. Law, p. 366. • Ante idem. tion, by means of the gift of land liberum maritagium,1 would furnish a further legal safeguard for the vesting of the estate in the daughter and son in law of the Jew. Sec. 103. Deed of gift. "Duke. He shall do this; or else I do recant The pardon that I late pronounced here. Por. Art thou contented, Jew; what dos't thou say? Por. Clerk, draw a deed of gift. Shy. I pray you, give me leave to go from hence; And I will sign it."2 The exaction of the deed of gift, as the price of Shylock's freedom from punishment, comes dangerously near to duress, but the validity of the deed on this ground would not be apt to be presented, so long as the withdrawal of the pardon threatened the grantor in the deed. A deed is generally defined to be any writing, containing a contract, sealed and delivered by the parties thereto.3 A deed of gift, unlike a deed of "grant, bargain and sale,” is based only on a good consideration, such as love and affection, as distinguished from a valuable consideration, such as money or property. At an early period in English history, land was conveyed without a writing, by overt acts and ceremonies, taking the place of formal writing, but by the statute of frauds and perjuries," any contract. or sale of lands was required to be in writing, signed by the grantor. Deeds or writings, in English law, date principally from the Norman Conquest. Under the reign of Henry III, there were various deeds of gift in vogue, all of which are IV Reeves' History Eng. Law, p. 90. 2 Merchant of Venice, Act IV, Scene I. 3 Tiedeman, R. P. (3d Ed.) Sec. 854; 2 Washburn, R. P. 553. Ante idem. 29 Chas. II, Ch. 3. 1 Reeves' History Eng. Law, p. 336. |