Page:The Green Bag (1889–1914), Volume 09.pdf/34

 The Case of Shylock. ferred to a bad sentence with good prem ises .... Irregular judicial premises are often, although, of course, not always, the ladder on which the consciousness of legal right mounts ever higher. Such irregular prem ises urge themselves on the judge most es pecially when some rigid, inflexible legal dictum has survived from ancient times, and like a ruin of the past no longer harmonizes with to-day. Such a dictum no jurisprudence in the world would dare openly to oppose, but the comedy is eminently respectable whereby it is evaded in a thousand byways. I will not express an opinion as to the justi fication of this proceeding. I neither praise nor blame it; I maintain it only as a fact in the universal history of evolution, which proves through all ages the development of law and right, in the Orient as well as in the Occident." So much for Portia's " shallow wriggle," and I cannot help thinking that I have quoted enough from those learned writers to show that it had a much greater raison d'être than was known to Your Disgusted hayman. And now for another phase of our subject. Your Disgusted Layman declares that Judge would contemptuously reject such a decision as Portia's, and ask that "a member of the Bar " be sent to try the case. It seems to me, though I may be wrong, that he here covertly challenges Portia's right to render a decision on the case. At any rate, the matter is worth tak ing up, if only to show how easily some of the objections raised by modern minds to Shakespeare's legalisms may be met and overturned. It will be remembered that in the trial scene the court is presided over by the Duke. After he had tried in vain to move the Jew to pity, he says : — "Upon my power, I may dismiss this court Unless Bellario. a learned doctor Whom I have sent for to determine this, Come here to-day."

Bellario does not come, being ill, but sends to represent him a young doctor of Rome (Portia in disguise), who is primed with his opinion and decision. Now this delegating of judicial functions was quite in accordance with Venetian law. Such a procedure, I believe, has also been known in England. What is more surprising is to find that within a few decades the same practice prevailed, possibly prevails to-day, even at our very doors. In 1852 Mr. John T. Doyle, as agent for a company, became involved in a lawsuit in Nicaragua. The case was tried before the alcalde, who, at the conclusion of the hearing, announced that he proposed to submit the matter to Don Buenaventura Selva, a practicing lawyer of Grenada. This was done, and in due time the lawyer rendered his decision, which turned out to be in Mr. Doyle's favor. So far the for eigner had no fault to find with this peculiar legal custom; but in the course of the same afternoon he received an intimation that he was expected to send Don Buenaventura the sum of two hundred dollars for his ser vices. On inquiring about this, he learned that it was the custom of the country. " I thought it a custom more honored in the breach than the observance," says Mr. Doyle, " and declined to pay. I found out afterwards, however, that this was a mis take; that under their system of adminis tration the judge merely ascertains the facts, and as to the law and its application to the case, reference is had to a juriscon sult, or doctor of the law; and that he, after pronouncing his decision, is entitled to ac cept from either party — in practice always from the successful one — a quiddam honorariam, or gratification." What says the Duke in the trial scene : — "Antonio, gratify this gentleman, For in my mind, you are much bound to him."

Here we seem to have a modern parallel of one of the peculiar, and, to many, puzz ling features of Shakespeare's great play.