Stedman and Hutchinson, comps. A Library of American Literature: An Anthology in Eleven Volumes. 1891. Vols. IXXI: Literature of the Republic, Part IV., 18611889
By James Appleton Morgan (18451928)
[Born in Portland, Me. Shakespeare in Fact and in Criticism. 1888.]
TO demonstrate whereinas it strikes methe entire trial scene shows, not a knowledge but a most consummate ignorance of all or any legal procedure, I have imagined Portias decision in the case of Shylock v. Antonio as having been twice appealed from, and that the following appears in a volume of the Reports of the imaginary appellate court.
(affirming Shylock v. Antonio: 75 Italian R., p. 104)
In the HIGH COURT OF APPEAL OF THE KINGDOM OF UNITED ITALY.
January 9th, 1887.
ANTONIO, respondent (defendant below) v.
SHYLOCK, appellant (plaintiff below).
[The indexed Points and Maxims prefixed to the Report are omitted by the Editors from this reprint.]
This case was argued before Venice, in the person of the Duke, and the opinion delivered by Portia, delegate of Amicus Curiæ, called in by the Duke. The facts were taken in open court, and submitted to an Amicus Curiæ (Bellario), who sent his delegate (Portia) to deliver his opinion and decision upon them in open court. This is a regular, though not a usual practice. There is no report of the first days session before Venice; and no transcript of the evidence put in on that day is brought here. These proceedings, therefore, are presumed to be regular. The decision, as pronounced by Portia, and the extraordinary scenes attendant upon such pronouncement, the interruptions by the defendant and his friends, harangues by the plaintiff, and sarcastic comments upon the bearing of the latter by the former, are reported with unusual verisimilitude in Shakespeares Reports (Rolfes Friendly Edition, vol. VII.). We pass these many and obvious contempts of court, remarking only what appears to us to have been the extraordinary complaisance of the court. Doubtless it is as within the power of a court to tolerate as to punish contempts. But undoubtedly, in behalf of good manners, such scenes as accompanied the delivery of the opinion of the court below ought not to be largely imitated in our nisi prius tribunals.
The plaintiff below loaned the defendant three thousand ducats, taking a written instrument conditioned in a penalty, that if the principal sum were not forthcoming in three months, plaintiff should cut a pound of flesh from the body of defendant in the vicinity of the latters heart. This instrument was not impeached below, but the case (as reported by Rolfe, ante) came before us a year ago on appeal from the first judgment rendered by Portia as delegate Amicus Curiæ, and we then overruled and reversed every single proposition laid down by that young person as contrary to every known principle of law, and monstrous to the very horn-book maxims of jurisprudence. We held on that occasion (75 I. R., 104):
I. That plaintiff below was badly advised in bringing action for the penalty of the instrument. But, nevertheless, it appearing from the evidence that plaintiff had substantial merits, as set forth in his complaint, the court should have reformed his action, making it an action for the recovery of the money loaned .
II. The delegate Amicus Curiæ Portia erred in holding:
1. That, not having paid the principal sum of 3,000 ducats within or at the expiration of the three months, plaintiff was entitled to a foreclosure for the penalty. Granted that the instrument could stand, the action for its foreclosure was then an equitable action, and equitable maxims would govern. There is no older maxim than that equity abhors a penalty; and defendant would certainly have been entitled to his equity of redemption here.
2. That the plaintiff could elect between the principal sum and the penalty. It follows from the foregoing that, whatever the penalty, he can recover only principal, interest, and costs.
3. That having elected for the penalty, plaintiff could cut therefor; but, in the cutting, was not entitled to a hairs weight of flesh more or less than an exact pound, or a single drop of blood. It is an eternal principle of jurisprudence that, when the law gives anything, it also gives that without which the thing could not be enjoyed or reduced to possession.
4. Could the preceding decisions be surpassed in silliness, we think that the proposition that, plaintiff having refused a tender of three times the sum, plaintiff must be non-suited, would clearly surpass them. Since the days of Father Moses, a tender has never quite discharged or destroyed a debt. The utmost it can do is to discharge all or any interest and costs that would have accrued subsequent to the tender. Neither is a grandiloquent offer by a by-stander, friend, or claquer of one party to the other of three times the sum a tender in any known or legal sense of the word. However, it would have doubtless been in the power of the court below to have suspended proceedings at this juncture, that any reasonable offer of compromise or settlement should be heard, when the by-stander could have (through the proper channels) reduced his inclination to compromise the case to a formal and regular offer. Courts of justice always look favorably upon settlements. It is public policy that there should be as little litigation as possible, is a very fundamental maxim of every known jurisprudence. But especially has it been the spirit of Italian jurisprudence since when the memory of man runneth not .
Plaintiff, therefore, was entitled to a tender if defendant had seen fit to make it. Nor can he be prejudiced either by the informality in which (if made in good faith) it was made, or by his own refusal to accept it.
Such being our decision, we sent the case back with every ruling reversed, and ordered a new trial on the merits. A new trial was had with the court constituted as before, the same delegate Amicus Curiæ delivering the judgment. With submission to the rulings above quoted, Portia gave judgment at once for the plaintiff in the sum of 3,000 ducats, with interest and costs, but coupled it with the following:
Of Portias prior judgment we endeavored to speak decorously. But the present branch it is difficult to characterize consonantly with a due sense of the dignity and decorum of this high court. To say that Portia is as reckless and shameless in her construction of statutes as she was densely ignorant and puerile in her comprehension of the common law, is, perhaps, too mild a statement. Certainly there is a Venetian statute to the effect that an alien conspirator against the life of a citizen shall be (upon proper apprehension and indictment thereunder, and trial and conviction had) sentenced to death and confiscation of his goods, a moiety to the State and a moiety to his proposed victim. But penal statutes cannot be applied ex parte and ab initio by a civil court sitting in a civil suiton its own motion and at its own discretion. The usual processes of charge, arrest, indictment, arraignment, trial, with opportunity for defence, can hardly be dispensed with entirely, even by a delegate Amicus Curiæ of the feminine gender. The effrontery of the present dispenser of justiceher civil rulings being reversed as fast as utteredrecouping herself, as it were, for the disgrace, at one fell swoop, by citing a penal statute and pronouncing a litigant guilty thereunder,nay, in the same breath sentencing him to death in the pleasure of the State,is certainly not paralleled in the history of Europe, whatever in other grand divisions of the globe may have been attempted. That Portia did not at once proceed to execute her judgment, and decapitate the plaintiff with an axe, is perhaps to be wondered at. Certainly the function of headsman is the only function she has not usurped. She has made the charge, arraigned the prisoner, presided at his trial, testified against him, found him guilty on her own testimony, and pronounced his sentence, all in ten lines. She has been informer, arraigner, witness, judge, and jury .
But we think the sublimity of impudence is yet to come. Having in crescendo pronounced sentence of death, Portia now begins in diminuendo to arrogate to herself the pardoning power, and to assume that the condemned man would prefer lifeminus worldly goods and the religion of his raceto death. She therefore, upon her own application, proceeds to commute the death sentence to a judgment(1), that plaintiff make a deed of gift of his property, real and personal, to his daughter; and (2), that he himself presently become a Christian. No court nor State has power to compel a party to alienate by deed his property without consideration. Still less does the power anywhere obtain to confiscate a mans religion. We are of opinion that nothing would be more desirable than that the plaintiff below should become a Christian. Socially, it would be a most happy consummation, for he is of that patient and long enduring race of whichas he himself sayssufferance is the badge. But it does not seem to have occurred to the extraordinary young jurist who invokes mercy (which is a kind of irregular equity) for the Christian but forgets it for the Jew, that the faith of a mans fathers may possibly be as dear to him as life itself, and that it will be ample time for Shylock to become Christian when he himself covets the preferment. Suffice it to say, however, that plaintiffs religion, no more than his worldly goods, have ever come under the jurisdiction of the delegate Amicus Curiæ who poses below, or within reach of her decree. A mans religion, provided that in the actual practice of the rites and ceremonies thereof there be nothing contrary to the public peace, or that injures his neighbors, or works perpesture or nuisance, is as much his possession as any other estate, thing, easement, right, or chattel, choate or inchoate, that is his; nor can a deprivation of ones religion or religious liberty ever be or compose a sentence or parcel of a sentence of a court of justice even after a conviction for crime. Had plaintiff below been legally sentenced to death, and the Duke seen fit to pardon him, this court could not have inquired into the motives or considerations moving the Duke to extend his pardon (and had one of the inducements been a change on plaintiffs part of the religion of his fathers, no record would have been made for this court to review). But not even the Duke of Venice, nor his delegated authority, has yet acquired power to compel an apostasy in open court. If, in the history of the jurisprudence of this planet it has come to pass that it is left to this court to declare that a human being (even though he be a despised Jew) has a right to the accumulations of his own labor, thrift, and economy, and that if he has loaned 3,000 ducats, or any other sum, he has the right to expect the assistance and not the hinderance of courts in recovering it if it be withheld: I say, if it is left to this court, and at this stage of the worlds history to so declare, this court, at least, will not be found unequal to the emergency.
All the proceedings in the court below are hereby ordered to be, and they are, peremptorily set aside, except the judgment directed by this court in the former appeal; and it is further
ORDERED: That so much of the judgment of the court below as decrees an escheat and penalties against plaintiff be set aside.
ORDERED: That the court below enter judgment absolute for plaintiff in the sum of 3,000 ducats, with interest, costs of both trials and appeals, together with an extra allowance on the entire recovery, of five per cent.
MARTINI (concurring): Since the brazen offer of 3,000 ducats to the delegate Amicus Curiæ as the price of her partisan efforts is not called to our judicial notice, we are unable to punish the acceptance of the reward of champerty and malfeasance here. But the court below is directed to hear and grant a motion to disbar the said Portia permanently, and to direct payment by her into court of the 3,000 ducats aforesaid, if received by her. Had Bellario or even Portia been merely a referee or master in chancery, to whom the case was referred, the payment alluded to by the associate justice above might not be irregular. If so, the Dukes speech, Antonio, gratify this gentleman (that is, pay him for his services), is properly explained, as I understand the custom of a referees fees being paid by the prevailing party to be one so old that the memory of man runneth not to the contrary.