September 20, 2009

The Merchant of Venice, the Law of Equity and the Law of England

The Merchant of Venice is often known as Shakespeare's anti-semitic play, in truth while anti-semtism is one issue in the play, it is not the only one. A very contemporary issue relates to law and that is what I want to concentrate on today. Amongst the most famous scenes in the play concerns a drama in court, where Portia disguised as a young man, defends Antonio the merchant. Her mission there is to obtain acquittal for him as he has become bound to Shylock the moneylender for funds. Antonio was unable to pay Shylock on the stated day and Shylock claimed his pound of flesh, as stipulated in his contract, from Antonio. Portia speaks to Shylock attempting to persuade him that he should remember the 'quality of mercy' and relax his judgement on Antonio, especially as the latter is now able to repay the debt. Shylock refuses and Portia offers him the chance to take up his fee but with one proviso: he must take a pound of flesh and only so much- should he take more by one whit then he will be punished for assault and die, should he take any blood then he will be punished for assault and die. Shylock unable to do so (obviously) in despair relinquishes the right to extract his fee: the court then prosecutes him for an onerous contract and Antonio is freed, as is Portia to marry Antonio's young friend Bassanio.

Shakespeare was aware of contemporary issues and his scene taps into debates that had been ongoing in English law since the 1530s and were to continue in the 1610s, 1620s and notably in the English Civil War. In England, where all law was and is royal (a point James I made to Chief Justice Coke by reminding him that he James might at any time come to a court and take his seat as a judge), the crown allowed two methods of prosecuting legal cases. The first was through the common law courts- these prosecuted the law according to the common law. The common law was made up of precedent and statute- some of which like Magna Carta was impressively antique by 1600, some of which like Henry VIII's statute of uses which regulated wills were more modern. As opposed to that jurisdiction there was the court of Chancery presided over by the Lord Chancellor and Chancery judges where judgements were made on the basis of equity, of what appeared just in the conscience of the Chancellor to dispose in a particular case. On the one hand you had a system of courts of law, on the other you had a court of equity- a court of common right and one of the most notable themes in English legal history was the conflict between the two.

English law recognised the centrality of contract- its view, like current English law, was that all who signed a contract were capable of doing so, if not directly incapable (ie not mentally competent). In Chancery the Chancellor and his staff were able to take a more relaxed view of contract: Sir Francis Bacon was one among many who believed that Chancery could stop creditors enforcing ridiculous conditions upon debtors. This provoked a great deal of hostility- common lawyers from George St Germain in Henry VIII's reign to Sir Edward Coke (Lord Chief Justice 1613-16) in James I's reign blasted Chancery. Likewise on the other side men like Sir Anthony Benn, Recorder of London, argued that the court of chancery should exist. For Benn its existance was based upon the fact that the laws of equity or justice were prior to the rule of law- that justice as he argued it came before Magna Carta. Sir Robert Filmer went further suggesting that Chancery encapsulated and reinforced the prerogative of the King. Ultimately to caricature we have two concepts of law here: the first procedure, precedent and statute based, the second equity and royally based.

The speech made by Portia at Antonio's trial clearly binds into these legal languages: Shakespeare appeals to the language of equity through Portia when he contrasts the brute precedent of the law against the mercy of Kings which stands above their sceptre, Francis Bacon would have eagerly concurred. Likewise there is something ridiculous about Shylock's charge- a debt results in Antonio being forced to sacrafice a pound of flesh and yet given the strict nature of English common law, though the example is caricature (no judge would have allowed it), it is hard hitting accurate caricature. Portia may succeed in manipulating Shylock's bond but had it said a pound roughly of flesh and blood then the lady lawyer would have failed. What Shakespeare is pointing to here is the inequity of a system which takes contract to be inviolate no matter what, his argument in the scene is for equity- either on behalf of the plaintiff (Portia is urging Shylock to relinquish his cause) or as Shakespeare shows us a plaintiff who would not relinquish his cause, a further extra legal authority to enforce equity. The laws of Venice, like those of England, in the case of Antonio versus Shylock are inadequate: equity rather than process ought to triumph and it is only because of chance and a badly written clause that it fails.

Portia wins her case- the discussion between Chancery and Common law was to last though longer than any single scene in any play.


James Higham said...

Indeed , it's not the only issue. The issue of a man trusting that much to the elements on the stormy sees to assure his fortune is eyebrow raising.