"Shy. I have possess'd your grace of what I purpose; And by our holy Sabbath have I sworn,

To have the due and forfeit of my bond.
If you deny it, let the danger light

Upon your charter and your city's freedom."

Shylock here proclaims to the Duke that if his contract is not to be enforced, the provision of the organic law of Venice which guaranteed the inviolability of contract obligations, would be violated. The challenge is to the effect that the very Charter of the city would be threatened by such holding. A charter is a grant made by the sovereign, either to the whole people, or to a portion of them, securing to them the enjoyment of certain rights. A notable illustration of such an instrument, in English history, was Magna Charta, the great repository of English liberties. A charter differs from a constitution, in that the former is granted by the sovereign, while the latter is established by the people themselves, but both are regarded as the fundamental or organic law of the section where they apply.

before the king became enamored with Anne Boleyn, he said to her: "K. Hen. . . you have half our power; the other moiety, ere you ask, is given." (Act I, Scene II.)

Cæsar thus refers to Antony's death, in Antony and Cleopatra: "Caes. The death of Antony is not a single doom; in the name lay a moiety of the world." (Act V, Scene II.)

In Cymbeline, Iachimo said to Posthumus. in making the wager: "Iach. . . I dare, thereon, pawn the moiety of my estate to your ring." (Act I, Scene V.)

In King Lear, Gloster, is made to say: For equalities are so weighed, that curiosity in neither, can make choice of either's moiety." (Act I, Scene I.)

'Merchant of Venice, Act IV, Scene I.

2 1 Bl. Comm. 108: 1 Story, Con. Sec. 161.

Two of the original drafts of Magna Charta are preserved in

the British Museum.

'Coke, Litt. 6: Dane, Abr. Charter.

Sec. 91. The issue before the court.

"Duke. Are you acquainted with the difference

That holds this present question in the court? Por. I am informed thoroughly of the cause.'

The Duke here enquired as to the Court's familiarity with the issue to be decided and Portia's reply shows that the Poet had in mind the necessity of a familiarity with the facts in issue, concerning which the judgment of the law, upon those facts, was sought. It is a rare thing that even an extra judicial opinion as to the construction of a written instrument can be offered, without having the contract to be construed before the interpreter thereof," but in the whole scope of this trial, it does not appear that the Court really scanned the original of this bond, which

Jaques, in As You Like It, declares to the Duke: "I must have liberty, withal, as large a charter as the wind, to blow on whom I please." (Act II, Scene I.)

King Richard II is made to say, in speaking of his willingness to grant blank charters for money to carry on his wars. (Act I, Scene III):

"K. Rich.

We are forc'd to farm our royal realm;

The revenue whereof shall furnish us

For our affairs in hand: If that come short,

Our substitutes at home shall have blank charters."

Stirring the citizens against Coriolanus, Brutus said: "Bru. He was your enemy; ever spake against your liberties, and the charters that you bear, i'the body of the weal." (Act II, Scene III.)

In the 58' Sonnet, to Southampton, the Poet said:

"Be where you list, your charter is so strong

That you yourself may privilege your time

To what you will." (9, 11.)

Charter is referred to in the LXXXVII' Sonnet in these lines: "The charter of thy worth gives thee releasing:

My bonds in thee are all determinate." (3, 4.)

1 Merchant of Venice. Act IV, Scene I.

2

For the rules respecting the interpretation and construction of written instruments, see, 1 Bl. Comm. 59; 2 Kent's Comm. 522; Parsons, Cont. 3.

Antonio confessed. This is mentioned only to show that the conduct of the cause was more according to a special code of practice invented by the Poet, than by way of strict adherence to the practice in a court of justice.

Sec. 92. Nature of Shylock's suit.—

"Por. Of a strange nature is the suit you follow; Yet in such rule, that the Venetian law Cannot impugn you, as you do proceed."

The observation of the Court that the suit was of a "strange nature" is clearly indisputable, but the other conclusion that "the Venetian law cannot impugn you, as you do proceed," is at variance with the later conclusion of the Court itself, who adjudges that the very object of the suit was counter to the law of Venice and of such a criminal nature as to make forfeit the life of Shylock and his estate confiscate unto the Crown. In view of this later conclusion, the statement here made that the law cannot impugn him, in the progress of such an unrighteous cause, is at variance with all rules of jurisprudence. All contracts having for their object the taking of human life have always been regarded as void, because contrary to good morals. Nor could it be insisted that this proceeding would have been legal, according to the Twelve Tables of the Romans, for the procedure is at variance with the authorized process for the punishment of the debtor, according to the Twelve Tables, as history reproduces them.3

'Merchant of Venice, Act IV, Scene I.

'Lawson, Contracts (2nd Ed.) 343, and citations.

'By the 3' Table, the debtor had until thirty days after judg ment to pay his debt and if he did not then pay or give security, or sell himself, by entering into the nexum, his creditor could seize him, load him with chains and treat him as a slave. Then after sixty days more, if he failed to pay, he was brought into the market place and either put to death or sold as a slave into Etruria. It was only where there were several creditors that he might, at their election, be divided and his body partitioned between them. Gibbon, vol. VII, p. 92; Gravina, De Jura Nat.

Portia claims to be able to show a special statute or decree holding the object of this bond to be a crime and if this were true the same statute would, by necessary implication, make void the bond, given to evidence such criminal act as the contract contemplated.1

Sec. 93. Portia's plea for mercy.

"Por. The quality of mercy is not strain'd;
It droppeth, as the gentle rain from heaven
Upon the place beneath: it is twice blessed;
It blesseth him that gives and him that takes:
'Tis mightiest in the mightiest; it becomes
The throned monarch better than his crown:
His scepter shows the force of temporal power,
The attribute to awe and majesty,

Wherein doth sit the dread and fear of kings;
But mercy is above this scepter'd sway;
It is enthroned in the hearts of kings;
It is an attribute to God himself;

And earthly power doth then show likest God's,
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this,-
That, in the course of justice, none of us
Should see salvation: we do pray for mercy:
And that same prayer doth teach us all to render
The deeds of mercy."

This plea for mercy is so beautiful that any comment thereon seems almost sacrilege. That "earthly power" shows "likest God's, when mercy seasons justice." is an apt comparison of the institutions of man with the Christian idea for the remission of the sins of the guilty, who confess and seek forgiveness. Mercy, in the legal acceptation of the term, is the total or partial remission of the Gent. etc., Sec. 72; Niebuhr, Hist. Rome, vol. 2. p. 597. And eminent historians contend that this law only related to the division of the debtor's property, not his person, at all. Montesquieu, Esprit des Lois, b. 29, c. 2; Bynkershoek, Observ. Jur. Rom. lib. 1, c. 1; Heinneccius, Antiq. Rom. lib. 111, tit. 30, sec. 4. 'Lawson, Contracts, supra.

2 Merchant of Venice, Act IV, Scene I.

punishment to which a person guilty of some offense is subject under the law." In seeking mercy, before the adjudication of the punishment against Antonio, or before the mandate or judgment of the court, the Poet recognized the distinction in law, between mercy or clemency and pardon, for a pardon is the remission of punishment, after the judgment of the court, while clemency or mercy is extended before sentence.2

Sec. 94.

Antonio's confession of the bond.—

"Por. Do you confess the bond? Ant. I do."3

This course, on Portia's part, was consistent with the practice frequently resorted to, in order to save the time and formality of resorting to proof, of admitting certain facts, which are not disputed, without calling for the proof thereof. The admission was drawn forth, in the orderly manner, in the progress of the cause, for until the interest of the parties appeared, an admission would not have been availing, as the interest must appear in all cases at the time of making an admission. After the interest of the parties appeared, however, then the admission here elicited had the force and effect of a regular judicial admission, which would be conclusive evidence against the party making it."

1 Jacob, Law Dictionary.

Bouvier's Law Dictionary; Rutherforth. Inst. 224; 3 Story. Con., Sec. 1488.

In passing upon Alcibiades' defense of the felon, in Timon of Athens, the Senators hold this conference: "1 Sen. Nothing emboldens sin so much as mercy.

2 Sen. Most true; the law shall bruise him." (Act III. Scene V.)

Merchant of Venice, Act IV, Scene I.

2 Stark. 41.

1 Greenl. Evid. Sec. 205: 2 Campb. 341.