Page:The Green Bag (1889–1914), Volume 09.pdf/32

 The Case of Shylock. wriggle." In the ballad, for example, after we have been told how the parties came into court, how every effort had been made to induce Gernutus to relax the severity of his demand, but in vain, we read : — "The bloody Jew now ready is With whetted blade in hand. To spoil the blood of innocent By forfeit of his bond. "When as he was about to strike In him the deadly blow : Stay (quoth the judge) thy crueltie, I charge thee to do so. •• Sith needs thou wilt thy forfeit have. Which is of flesh a pound. See that you shed no drop of bloud. Nor yet the man confound. "For if thou do, like murderer, Thou here shall hanged be; Likewise of flesh see that thou cut No more than longes to thee; "For if thou take either more or less To the value of a mite, Thou shall be hanged presently As is both law and right."

Here is the quibble made to Shake speare's hand. If this were a true case, even though a most exceptional one, the great dramatist would of course be instantly justified. But since our efforts fail to dis cover whether it is fact or fiction, we are compelled to proceed further. Fortunately we are encouraged in our investigations by the following note by a writer who seems to have given the subject his most earnest at tention : " Whether it is a record of an actual occurrence, it is alike immaterial and impossible to determine. Certain it is that both the facts and the law of the case are substantially historical. They precisely rep resent views concerning contract, criminal liability, and law reform, which, however absurd they may appear to us, have widely prevailed, and must be regarded as charac teristic of certain early stages of intellectual development."

II

Let us center our attention at once upon the root of the matter, that stumbling block to both lawyer and layman, the Portian quibble. What shall be said of this? Of course in our enlightened age and country it would not be tolerated for a moment. But Venice is not America, nor is the period of Gernutus or Shylock the nineteenth cen tury. While many have written on this feature of the Shylock case, no one to my knowl edge has so thoroughly anatomized it as Mr. William W. Billson, the critic I just now quoted. And I know of no other writer who attempts to justify the use of the quibble as an expedient in early jurispru dence. Hear him again on this case. "Nothing could be more suggestively true to nature and history than that a judge of the remote age from which this story (of Shylock) is inherited, in struggling to as sert against an old and harsh rule of law more recently developed sentiments of hu manity, should seek the accomplishment of his purpose through a play upon words." It would be impossible in a brief article to follow Mr. Billson through all the rami fications of his argument. The outlines of that argument may be given, however, and they are as follows. He points out in the first place that in the bond given by Anto nio to Shylock, we recognize the substance of the debtor's life-pledging contract which filled so large a place in the commercial economy of ancient societies. " As a means of securing the payment of debt, the pledging one's life and the lives of the members of one's family, in the history of many races, preceded in order of develop ment the pledging of property." This was because at an early period " all property was vested in the village tribe or gens; the individual really had nothing he could call his own except himself and his family." Under the Roman law the several creditors of an insolvent could hew his body in pieces and divide it between them.