Читать книгу The Continental Monthly, Vol. III, No. V, May, 1863 - Various - Страница 10

OPINION OF THE VICAR

The Vicar desires briefly, modestly, and by way of suggestion, rather as Amicus Curiæ than as an advocate, to lay before his learned brethren of the law a legal point or two, for their consideration.

The case to which I refer is well known to all the members of the bar as that of Shylock—versus Antonio, reported, in full, in 2 Shakspeare 299. The decision which I am desirous of having reviewed, is that of the Chief Justice, or Ducal Magistrate, who heard that curious case, and who yielded to the extraordinary arguments of the young woman, Portia. The judgment rendered, and the argument or decision of the Lady Advocate, on that occasion, have been regarded as models of judicial acumen, have received the approbation of many worthy and enlightened students, and, when theatrically represented, have been greeted with the plaudits of nearly every theatre. It may be arrogant to impugn a judicial decision of such antiquity and acknowledged authority; but, as a member in full standing of the worshipful P. B., I have the right to be slightly arrogant; for I am well aware that this is a tribunal the circumference of whose jurisdiction is infinite, or rather is a circle whose centre is a little village on the Hudson river, where I reside.

No false modesty shall restrain me, therefore, from discussing this case upon its merits. Before entering upon it, however, I desire to call your attention to a few preliminary points.

In the first place, I ask you—who are all familiar with the record—if an undue sympathy for the defendant, Antonio, was not felt on the trial? The favor and good wishes of the court, the spectators, and of the reporter, were evidently enlisted for him as against his opponent. This Antonio, perhaps, was a very worthy fellow in his way; and in a criminal action—as on an indictment for murdering a family or two, or slaughtering a policeman—might have been, able to prove previous good character. But such a plea, in a civil action for debt, is entitled to no weight, while the fact that he was a good fellow in a series of scrapes, not the least of which was matrimony, does not entitle him to our sympathy. The prejudices of the court ought to have been against instead of for him. He had failed in business, could not pay his outstanding liabilities, and thus stood before the commercial world in the position of bankruptcy. The fact that he had made a foolish contract, which imperilled his life, does not improve his moral condition, or entitle him to any just sympathy, unless it could be shown that there was insanity in his family. No such plea was entered. His counsel did not attempt to prove that his great-grandfather owned a mad dog; a plea from which the court, fortified by many modern criminal decisions, might have inferred his moral insanity. No such attempt to relieve Antonio from the consequences of his criminal folly was made, and I can see nothing in the case to entitle him to the sympathy which was and had been always entertained for him.

Again: The lengthy and much-admired plea of the defendant's counsel on the subject of mercy was clearly out of place, especially if, as I have endeavored to show, the defendant was not entitled to any particular clemency or sympathy. The remarks of Portia, commencing,

'The quality of Mercy is not strained,'

(and, by the way, who but a woman would talk of straining an emotion as one strains milk?) are wholly irrelevant to the issue, and ought not to have been allowed. They were eloquent, indeed, but had nothing whatever to do with the trial, which arose on a very plain case at law: A owed B three thousand ducats, due and not paid on an ascertained day. Whereupon B moves the court for the penalty, and demands judgment. If the defendant had no answer at law, there is an end to the case; and it was very irregular, impertinent, and contrary to well-settled practice for the defendant's counsel to endeavor to lead off the mind of the court from the true issue of the case. Portia, in what she says of mercy being 'twice blessed' and 'dropping like the gentle rain from heaven,' &c., &c., was, I fear, 'talking buncombe,' and all that part of her speech should be stricken from the record, especially as it was addressed to the plaintiff instead of the court, a highly indecorous proceeding. Instead of indulging in all this sentimentality, her true course would have been to have filed a bill in equity against Shylock, and have obtained an injunction on an ex parte affidavit, which only requires a little strong swearing; or to have patched up a suit against him for obtaining his knife under false pretences; than which (under the New York code of procedure) nothing can be easier. But what better conduct of a suit can you expect from a she-advocate—an attorney-in-petticoats?

And this brings me to another point of some delicacy, and which nothing but a conscientious devotion to abstract justice would induce me to touch upon. What law, or what precedent, can be cited to authorize a woman to appear as an advocate in a court of justice and usurp the offices and prerogatives of a man? I will not dwell upon the impropriety of such conduct; but on my honor, as a member of the bar, the behavior of Portia was outrageous. This young female, not content with 'cavorting' around the country in a loose and perspicuous style, actually practises a gross swindle on the court. She assumes to be a man when she is only a woman, dons the breeches when she is only entitled to the skirts, and imposes herself upon the Duke of Venice as a learned young advocate from Rome, when in fact she is only a young damsel of Belmont, with half a dozen lovers on hand, on her own showing. And yet this young baggage, whose own father would not trust her to choose a husband, whose brains are addled by her own love affairs, and who had no more business in court than the deacon would have in Chancellor Whiting's suit in the Lowber claim, not only came into court under a fraudulent disguise, argued the case under false pretences, but actually took the words from the judge's own mouth, and decided her case on her own responsibility. I venture to say that such unparalleled impudence was never witnessed out of the court of a justice of the peace, and that even Judge – (unless the editor of the – had interfered) would have marched this false pretender out of court, or have deposited her in the Tombs on an attachment of contempt.

But these preliminary points appear of small moment when we come to consider the plea, if it be worthy of that name, which the counsel for the defendant opposed to the suit of the plaintiff. The bond is admitted, the penalty is confessed, the pound of flesh is forfeited, the bosom of Antonio is bared to the knife—when this brief but brief-less barrister, this skylarking young judge of Belmont steps jauntily forward, with a most preposterous quibble on her lips, and manages by an adroit subtlety to defeat the judgment to which the plaintiff is legally entitled. She awards the flesh, fibres, nerves, adipose matter, in controversy, to Shylock; but declares his life and fortune confiscate if he sheds a drop of blood, or takes more or less than the exact pound.

Now if there be one principle of law better settled than another (and probably it was as clearly set forth in the Revised Statutes of Venice as is set forth in our own common law), it is that a party entitled to the possession of a commodity, whether grain, guano, dead or live men's flesh, bones and sinews, is entitled, also, to pursue the usual necessary and appropriate means of obtaining the possession of the same. I appeal to Colonel W– if this be not good law, and asking whether, if he be entitled to a dinner, he has not a right to seize upon it, whenever or however he can find it; whether, if a man owes him a bottle of champagne, he has not the right to break the neck of the bottle if a corkscrew is not convenient? So, to use a drier example, the sale of standing timber entitles the purchaser to enter the land upon which it is situated, and to cut down and carry off his own property. On the same principle, if A sells B a house and lot, entirely surrounded by other land owned by A, B has clearly a right of way to his own wife and fireside over A's land. (2 Blackstone 1149.) A hundred examples might be given in point, but it would be insulting the dignity of this court to argue at length a theory so transparently clear. If the shedding of a few drops of blood, more or less, was incidental and necessary to the rights of the plaintiff, if the article of personal property, forfeited to him on the bond, could be obtained in no other way, then, according to all the principles of law and common sense, he had a right to spill those drops, more or less; and that, too, without legal risk.

If the penalty was legal, and that were admitted, the method of exacting it was legal also. Portia's quibble was so transparent and barefaced that the decision of the court can only be explained on the theory that the court was drunk, or in love, which seems to have been the condition of several of the prominent parties in this proceeding, excepting always the plaintiff. As to the other part of Portia's plea, it is doubtless true that the plaintiff would take more of the commodity involved in the suit than the court awarded him at his peril; but as half a pound, or a quarter of a pound, cut off from the right spot would have answered his purpose, I do not see under what principle of law he was defrauded of that satisfaction. There was nothing to have prevented him from cutting less than a pound from Antonio's body, and of so releasing him, the defendant, from a portion of the penalty; and the court should have instructed the plaintiff as to his rights in this particular, instead of adopting a quibble worthy of only a Tombs lawyer or a third-rate pettifogger.

I cannot then believe that Mr. Reporter Shakspeare, in handing down to posterity the record of this remarkable case, meant to express an approval of Portia's subterfuge. My inference rather is that he was aiming a covert sarcasm at those women who thrust themselves conspicuously upon the notice of the public, and that he meant to hint that those who thus unsex themselves often make a showy appearance without displaying much solid merit. If this subtle, sharp, and strong-minded female did not turn out to be something of a shrew, before her husband was done with her, I am much mistaken. Possibly, however, Shakspeare's sarcasm might bear a more general interpretation, and implies that women in an argument seldom meet the true issue presented to them, but are prone to go off at a tangent on some side quibble, and to repel the arguments of their antagonists by the subtlety of their inventions rather than by the cogency of their logic. I appeal to my friend, the sage of Cattaraugus, who has a large knowledge of the customs of the sex, if this be not the usual result.

Not to cut the reply of the deacon too short, I go on to remark that whether he agrees with me or not, neither he nor any other well-balanced man would have descended, on the trial of so important a case as the one we are discussing, to a trivial playing upon words. Even my friend, the district attorney, than whom no man is more remorselessly given—in private life—to the depraved habit of quibbling, and who never hesitates to impale truth upon the point of a verbal criticism, would by the temptation of a fee commensurate with the vigor of the moral effort required, have discussed the question on broader and truer principles. Had he been retained on the part of Antonio, he would have proved himself equal to the occasion, and have unfolded a logical and consistent answer to the claim of the plaintiff.