Neimeyer - Judgment Against Shylock

The Judgment against Shylock in the Merchant of Venice
Author(s): Th. Niemeyer

Source: Michigan Law Review, Vol. 14, No. 1 (Nov., 1915), pp. 20-36
Published by: The Michigan Law Review Association
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THE JUDGMENT AGAINST SHYLOCK IN THE
MERCHANT OF VENICE.
T HIS subject has already received the attention of jurists. In

I872 von Jhering in his famous lecture "The Struggle for
Law"' criticised severely the established admiration of the
speech of Portia. von Jhering attacked this speech with great
vigour and indeed spoke of it as a miserable subterfuge-the rabu-
lous trick of a pettifogger. He finds that through this speech a
truly tragic lot befell Shylock; a fate brought about by the usurer's
lawful struggle for his rights, and through which the law of Venice
was transfigured.
On the other hand, Joseph Kohler has hailed the speech of Portia
as the victory of Sarastro over the powers of might,-as the triumph
of true law over the caricature of law.2 Kohler defended this view
with as great emphasis as von Jhering the opposite. And indeed
Kohler undertook not only a general philosophic but also a special
juristic proof of his conception. He arrived at the conclusion that
Portia's decision was right in the result but not in the reasoning.
A French jurist, Prof. Huvelin of Lyon, lately published a
spirited lecture entitled "The Case of Shylock." Huvelin holds the
speech of Portia to be right as well in its reasoning as in its con-
clusions.
I must confess that none of these conceptions satisfies me, even
though I find correct observations in each of them and especially in
that of von Jhering. I am of opinion, differing from Kohler and
Huvelin, that the decision in its result is false and think the reason-
ing pettifoggish and in no way sufficient, for where a right is there
is also a way to exercise it. And I think further that the confisca-
tion of property exercised against Shylock and the forcing him to
accept Christianity are brutalities which correspond as little to the
principles of eternal justice as to the then existent man-made laws.
I find therefore true tragedy in Shylock's fate. It is naturally not
the tragedy of a heroic personality; it is the tragedy of a man who
is made a sacrifice in a typical conflict, a conflict that lies not only in
his own person, not only in the dissentient views of his own genera-
tion, but also in the discordant nature of all law.
The contract according to which Shylock was entitled to a pound
of his debtor's flesh is actually valid and enforceable according to
1"Der Kampf urns Recht," translated by J. J. Lalor. Published 2nd Ed., I914
2 "Shakespeare before the Forum of Jurisprudence."
THE JUDGMENT AGAINST SHYLOCK 21
the laws of Venice in force at the time of the action o

But the whole world thinks the validity of this agreem
not be taken seriously; Shylock alone has complete f
inflexibility of the law, and because of this almost stub
dence he puts the Doge and the Senate in a most painf
The highest authority and the whole court of Venice
no solution of the difficulty.
According to the usage, a Doctor of Laws is comm
make the decision. Portia, the woman, in the moment
necessity, appearing like a saving angel, attempts it in
she places the usurer in a position of utmost wrong; s
the conflict to the highest tension by appealing to the
of the enemy and with great emotion she gives him a l
and offers him an opportunity of renouncing his legal
as this last attempt to maintain the existing law rebound
unwavering hard-heartedness and even more against th
revenge burning within the Jew, as even the knife is s
fore the eyes of all, and the heart of the royal merchan
when every one feels that the terrible calamity dare not
happen, Portia seizes upon the saving straw, and makin
woman's cunning she gains a triumph outshadowing by
logic all the art of interpretation of the men, as did th
Weinsberg in saving their husbands.3 She had the cour
the law and the cleverness to mask this wrong throug
trick for which she received the thankful recognition
and his learned Senate, the more so because she as
herself the responsibility of this perverted decision.
It is an injustice to the poet, I believe, to accept the
he would have the judgment of Portia looked upon as
cation of the law of Venice. Who can say that Shake
self thought that the decision was juristically correct o
in itself satisfactory? Certainly the poet knew that th
of the bloody scene would be a welcome solution to th
and that the action of Portia would be looked upon as
relief. I believe also that the poet expected that the de
Shylock's moral existence, wherein the Doge and Porti
each other in cruelty, would be accepted with satisfac
theatre-going public. But all this is by no means suffi
to the conclusion that Shakespeare considered the medi
this solution was reached to be correct in law. And it
3 (Translator's Note: The general besieging the town allowed the women to come
out, but to bring with them only so much as they could carry on their backs. Each
woman carried her husband.)
22 MICHIGAN LAW REVIEW
reconcilable with that expectation that he cared nothing

legal correctness of the judgment, but concerned himself
the victory of immanent reason and justice. And I also bel
the pettifoggery of the procedure was well known to the
witted man of the world, the shrewd jurist, that Shakesp
He did not identify himself in any way with the judg
may accept the formula that Shakespeare "always held
before nature and mankind." He pictured criminals and h
as they are. He presented the conflicts of life just as the
Why should he change his rule only in the case of matters
law? The acquittal of Wera Sassulitsch by the Russian
many other like cases; the activity of Judge Lynch an
great list of riots and revolutions by which unbearable si
have been changed-all of these are in the same class as
ment of Portia.
Before I attempt to explain the foundations of this conviction I
shall recall briefly the facts in the case between Shylock and Antonio.
Bassanio loved Portia, the much courted mistress of Belmont.
Through extravagant habits he lost not only his own fortune, but
had already made a large loan from his friend Antonio, who loved
him tenderly. Bassanio would now sue for Portia's hand but he
lacks the funds to make an appearance suitable to his station in life.
For this reason he begs Antonio for a new loan. All of Antonio's
money is engaged in his shipping interests. He says:
Thou know'st that all my fortunes are at sea;

Neither have I money nor commodity
To raise a present sum; therefore go forth;
Try what my credit can in Venice do:
That shall be rack'd, even to the uttermost,
To furnish thee to Belmont, to fair Portia.
Go, presently inquire, and so will I,
Where money is; and I no question make,
To have it of my trust, or for my sake.
Bassanio goes to Shylock and requests a loan of 3000 ducats for

3 months with Antonio as surety. Shylock considers it, but says that
before agreeing he must first of all speak with Antonio. Shylock
knows that Antonio is in business difficulties and that his ability to
pay is threatened. He hates the Christian merchant especially be-
cause 'he lends out money gratis and brings down the rate of usance
with us here in Venice," but also because he hates Antonio's holy
people and Antonio who has scolded him and treated him like a dog.
Shylock immediately concludes, "If I can catch him once

the hip, I will feed fat the ancient grudge I bear him." An
comes, and explains to Shylock that it is his rule never to gi
take money upon interest but that he will break this custom b
his friend Bassanio is so much in need. Shylock now explains i
famous dialogue about interest, that he will not take interes
Antonio will bind himself to pay a penalty of a pound of flesh in
the money is not punctually repaid.
The agreement arose in this way. Antonio asks:
Well, Shylock shall we be beholding to.you?

Shy. Signior Antonio, many a time and oft
In the Rialto you have rated me
About my moneys and my usances:
Still have I borne it with a patient shrug;
For sufferance is the badge of all our tribe,
You call me misbeliever, cut-throat dog,
And spit upon my Jewish gaberdine,
And all for use of that which is mine own.
Well then, it now appears you need my help:
Go to, then; you come to me, and you say
'Shylock, we would have moneys': you say so;
You that did void your rheum upon my beard,
And foot me as you spurn a stranger cur
Over your threshold: moneys is your suit.
What should I say to you? Should I not say
'Hath a dog money? Is it possible
A cur can lend three thousand ducats? or
Shall I bend low and in a bondsman's key,
With bated breath and whispering humbleness,
Say this,-
'Fair sir, you spit on me on Wednesday last;
You spurned me such a day; another time
You called me dog; and for these courtesies
I'll lend you thus much monies'?
Ant. I am as like to call thee so again,
To spit on thee again, to spurn thee too.
If thou wilt lend this money lend it not
As to thy friends; for when did friendship take
A breed for barren metal of his friend?
But lend it rather to thine enemy;
Who if he break, thou mayst with better face
Exact the penalty.
Shy. Why, look you, how you storm!

I would be friends with you, and have your love
Forget the shames that you have stained me wit
Supply your present wants, and take no doit
Of usance for my moneys, and you'll not hear m
This is kind I offer.
Bass. This were kindness.
Shy. This kindness will I show.
Go with me to a notary, seal me there
Your single bond ;4 and, in a merry sport,
If you repay me not on such a day,
In such a place, such sum or sums as are
Express'd in the condition, let the forfeit
Be nominated for an equal pound
Of your fair flesh, to be cut off and taken
In what part of your body pleaseth me.
Ant. Content, i' faith: I'll seal to such a bond
And say there is much kindness in the Jew.
Bass. You shall not seal to such a bond for me:
I'll rather dwell in my necessity.
Ant. Why, fear not, man; I will not forfeit it;
Within these two months, that's a month before
This bond expires, I do expect return,
Of thrice three times the value of this bond.
Shy. 0 father Abram, what these Christians are,
Whose own hard dealings teaches them suspect
The thoughts of others! Pray you, tell me this;
If he should break his day, what should I gain
By the exaction of the forfeiture?
A pound of man's flesh taken from a man
Is not so estimable, profitable neither,
As flesh of muttons, beefs or goats. I say,
To buy this favour, I extend this friendship:
If he will take it, so; if not, adieu;
And, for my love, I pray you wrong me not.
Ant. Yes, Shylock, I will seal unto this bond.
Shy. Then, meet me forthwith at the notary's;
Give him direction for this merry bond;
Some have thought that Shylock demanded the contract as 'merry
sport' and in speaking of the 'merry bond' he shows that the whole
4 Sir Frederick Pollock points out that this is a bond without a penalty. L. Q. R.
Apr. I914.
thing was intended only as a joke and without any legal purpo
effect. But that view cannot be supported. Shylock recon
himself to his refusal of interest only by the penalty of the
of flesh. This is his equivalent. He bought it with the interest
which he released the merchant. In the court scene he says: "
pound of flesh, which I demand of him, Is dearly bought; 'tis
and I will have it." In the presence of his friend Tubal he had
an oath that he had rather have the pound of Antonio's flesh
twenty times the amount of the indebtedness. And all the ot
participants are in perfect agreement that the penalty was ins
in perfect seriousness. It was from the very beginning consi
a terrible exaction. When the three months had passed an
tonio could not pay he was brought to court and given int
power of his creditor who required only the final judgment to
his right into effect. We see Antonio softened to such a degre
he begs for mercy. The Doge himself and all the Senators im
the Jew to be merciful. This would all be nonsense if the con
had not been considered valid and capable of execution. And P
herself says the contract is valid, after she had implored the J
mercy.
"I have spoke thus much
To mitigate the justice of thy plea;
Which if thou follow, this strict court of Venice
Must needs give sentence 'gainst the merchant there."
Portia utters this judgment in the following words: (turnin

Antonio)
"You must prepare your bosom for his knife
For the intent and purpose of the law
Hath full relation to the penalty,
Which here appeareth due upon the bond."
Turning to Shylock,
"A pound of that same merchant's flesh is thine:
The court awards it and the law doth give it."
And now follows the climax of the scene.
Shylock (lifting the scales)

Most learned judge! A sentence! Come, prepare!
Por. Tarry a little; there is something else.
This bond doth give thee here no jot of blood;
The words expressly are a 'pound of flesh':
Take then thy bond, take thou thy pound of flesh;
But, in the cutting it, if thou dost shed

One drop of Christian blood, thy lands and goo
Are, by the laws of Venice, confiscate
Unto the state of Venice.
It should be noticed that Portia did not first in her judgment

recognize the claim of Shylock and then deny it the execution. It
is a case of an individual judgment that carries with it a condition.
Shylock interrupted Portia by lifting up the scales. Portia answers
him: "Tarry a little," and then she continues, introducing a condi-
tion into the judgment, namely, that no blood is to be spilt.
With that the judgment is pronounced and the civil case of Shy-
lock v. Antonio ended.
What now follows is a criminal case against Shylock. After
pronouncing the entire judgment, Portia says once again,
"Therefore prepare thee to cut off the flesh."
But Portia indicates again the consequences of the drawing of
blood: death and the confiscation of property.
Shylock now, after a further attempt to save his capital, with-
draws his claim to the exaction of the penalty and will go with these
words:-
"I'll stay no longer question."
But Portia will not allow him to go; she explains to him in
that although he has avoided the charge of having drawn bloo
has already laid himself open to another charge. He has a
committed a crime'which the law of Venice punishes with dea
loss of property.
It is enacted in the laws of Venice
If it be proved against an alien
That by direct or indirect attempts
He seeks the life of any citizen,
The party 'gainst the which he doth contrive
Shall seize one-half his goods; the other half
Comes to the privy coffer of the state;
And the offender's life lies in the mercy
Of the Duke only, 'gainst all other voice."
The Doge then declares:
That thou shalt see the difference of our spirits,
I pardon thee thy life before thou ask it:
For half thy wealth, it is Antonio's;
Thetother half comes to the general state,
Which humbleness may drive into a fine.
Then it occurs to Portia, "Aye, for the state, not for Anton
whereupon Antonio makes the following suggestion: For him
he will take only a life interest in his half of Shylock's prop
and the capital shall be left to the man who lately stole away
Jew's daughter, Jessica, if the following conditions are accept
the Doge and Shylock.
The State of Venice leaves to Shylock its half of his proper
i. e., it does not exercise its right of confiscation. On the
hand Shylock for this acknowledges Christianity and because
state has pardoned him, he gives this property to his son-in-la
daughter.
The Doge accepts this suggestion and with this surprising sen-
tence:
He shall do this, or else I shall recant
The pardon that I late pronounced here.
So the arrangement suggested by Antonio is forced upon
Jew by the Doge's misuse of the power of his office and Portia
takes part in this unreasonable demand in pressing herself u
Shylock with: "Art thou contented Jew? What dost thou sa
Shylock says, "I am content."
With that the criminal case is ended by an agreement which
government has forced upon the accused.
It cannot be disputed that the whole course of this criminal pr
ceeding is, according to any standard, illegal, unjust and immor
While the course of the criminal case can only be termed a m
carriage of the law, judgment upon the preceding civil case is m
debated and full of doubt.
If one would form a judgment upon this matter he must first of
all state the question properly.
It depends upon this: according to what standard is this question
of law to be judged? According to the law in force in Germany
at the present time? or according to the law of England of the
time Shakespeare wrote the play-1594? or lastly according to the
law of Venice of the time of the action?
Judged according to the German law of today the matter is very
simple. The penalty of a pound of flesh would be invalid as contra
bonos mores.5 But if one would regard the contract itself as valid
it must be replied that the carrying out of the rights of Shylock
would be out of the question on account of the so-called chicane
paragraph which forbids the exercise of a right whose only pur-
pose is the injury of another.
6 ? 138, "Biirgerliches Gesetzbuch" of the German Empire.
But considering the question from the standpoint of the E

law of the I6th century, the solution is not so easily found
legal foundations for this standard are not without some de
doubt. But the following may be laid down as beyond qu
Shylock's case would have been in Shakespeare's time to a c
extent allowable. It is well known that English law up unti
late times held fast to a literal interpretation and a forma
which we can scarcely form any conception. And then also
courts did not have the courage nor the right to interpret
other than according to their strict wording.
An example of this:
It was for many centuries in England (as also in Rom
custom to confirm a debtor's promise by agreeing upon an
mous penalty, and this was indeed (lone in such a way that
alty appeared as the real debt and the principal sum as a se
thing. He who engages himself to pay 3,000 ducats at a
time and upon failure thereof to pay a penalty of Io,ooo du
pressed himself in this way: "I am indebted to you fo
ducats. I am not indebted to you if I, at such and such
pay you 3,0oo ducats." Such bonds were treated with great
ness by the courts so that no manner of excuse allowed a d
follow, nor had the judge (as he does in German Civil l
right to moderate the amount of an excessive penalty.
It was not until the I8th century that, under Queen Ann
was passed whereby it was allowed a debtor to escape the p
of a conventional penalty by paying in the stead thereof the
and costs. It is true that even before this law many deb
secured a like release but only through a sort of an act of
namely through the judgment of an equity court. The wor
growths of this formalistic legal practice had already as ea
the I3th century been somewhat modified by the Lord Ch
who in the Curia Regis, while sitting in certain cases as an
court pushed to one side the formal rules of the Common
judged according to principles of equity. Out of this jurisd
of the Lord Chancellor and the Curia Regis developed the E
courts which until I873 stood side by side with the courts o
mon Law. It is only then within the last forty years that
lish courts have been competent to apply legal rules that a
consonant with reason.
This much then one may well say: that Shakespeare's theatre
public without giving the matter juristic consideration, would have
looked upon the binding force of the flesh clause of the contract as
well as the literally interpreted jurisprudence of Portia as in accord-
ance with the Common Law. In those times one had become ac-
customed to the strangest consequences of the exercise of rules of
law and had become hardened to such legal monstrosities.
But in spite of this the Shylock case cannot stand according to
the rules of English Iaw of the I6th century. For the following
reasons: No English Court of Common Law could enforce any-
thing but the payment of money, that is, debts and damages. Only
the Chancery court, that is, the Equity court of the Lord Chancellor
could pass judgment for any execution save for a certain sum of
money. The pound of flesh could have been adjudged to Shylock
only by the Lord Chancellor and since the Lord Chancellor is the
very representative of equity it would have been a contradiction to
have recognized Shylock's claim.
But on the other hand the case of Shylock as created would find
its decision not through the Common Law courts but through the
Equity courts. Without any doubt whatever, this case, arising in
the time of Shakespeare would have been laid before the Lord Chan-
cellor and by him so decided as the rules of equity and the dictates
of good conscience directed, that is, it would have resulted in the
same decision as that which Portia announced but certainly without
her quibbling argumentation, but in its stead a free discussion of
the immorality both of the contract and the execution prayed for,
in other words, as natural justice requires. Thus the whole legal
conflict would have been impossible according to English law. Had
Shakespeare transferred the scenery to London he would have of-
fered to his public an evident contradiction and he could not have
wished to bring upon the stage a purely English arrangement in a
Venetian situation because in the legal situation itself there would
have been no agreement.
One cannot long hold the opinion that the entrance of the Doctor
of Padua into the case had the same significance as a court of
equity as Portia remained throughout the exponent of the very
strictest literal interpretation.
No: Shakespeare kept the whole action so far removed, both
locally and nationally, from his theatre public that only two stand-
ards by which the legal problem may be judged enter into the ques-
tion: either the special law of Venice or those general conceptions
of justice which make up the law of nature. In this alternative it
is not difficult to judge, for the whole foundation of the piece is
purely Venetian. Thus the standard of the law of nature must be
withdrawn or at least modified until it plays only the role which
is universally assigned to it, that is, as the expression of legislative
criticism. We are thus forced to turn, for our legal judgment, to
the laws of Venice, by which, of course, is meant the law o

as it is presented in this drama. We shall not succumb to
ish temptation of directing our examination of the subject
question, whether or not Shakespeare has really given us t
torically valid law of Venice. In every essential respect
done that.
What we have taken most pains with is to, establish the validity
of the contract so far as it touches the forfeiture of a pound of
flesh.
Such agreements are not only to be found in the early middle
ages but in the I3th, I4th, and 15th centuries in Germany, Scandi-
navia and Italy and have been recognized as legally valid.
Of the original documents at hand I shall cite only three exam-
ples.
In the city archives of Genoa is to be found a document from the
year 1279 recording a matter which came before the notary Pietro
Bargone. Here is recorded an agreement between a Sicilian girl
Cerasia and a certain Jacobus, by which the former was bound to
serve her master in all his commands and the latter to give her
lodging and food in addition to certain money payments, and it was
made upon this condition: that if she failed to do any of the ser-
vices of Jacobus or disregarded any of his commands then Jacobus
had the right to cut off her nose, or a hand or a foot, and it was
agreed that having thus penalized his servant he should not be made
amenable before a court of law.
In a Cologne record of a case arising in 1263 before a court and
jury a debtor promised that if he failed to carry out his part of the
contract he should allow himself to be beheaded.
And in a Silesian document of I250 a Konrad Blind subjected
himself before the magistrates to the penalty of death if he com-
mitted certain acts against the church. The magistrates were then
empowered to demand the forfeiture of his life.
But nothing speaks more convincingly for the earnestness and the
frequency of such contracts than the fact that in a great number of
legal authorities of the Middle Ages it is forbidden to game away
one's eye, nose, ear, hand or foot, a custom which Tacitus reported
to be common among the Germans.
In short, Shylock's contract was possible and, according to the
law of that time, valid.
In this connection one thing is noteworthy: at no time and in no
place has it been recorded that a creditor has taken advantage of
his right to the mutilation or the death of his debtor. And it was
the same according to the Roman law: The I2 Tables (at least ac-
THE JUDGMENT AGAINST SHYLOCK 3r
cording to a very widely extended interpretation) gave to se

creditors, if they agreed, the right to take the life of the d
"Partes secanto, se plus minusve secuerint se fraude esto." Bu
is reported that no use has ever been made of this right.
And it is just in this that I see the key to the dramatic repr
in Shakespeare's play.
I believe Shakespeare was guided by the question: Wha
come of it, if in such a juristic situation the creditor does la
hand upon the debtor?
How near this problem lays to the horizon of the Shakespe
time may be seen from an ocurrence reported by Gregorio Le
his Biography of Pope Sixtus V, as having taken place in
that is, only a few years before the Merchant of Venice was w
'There it is said: (I quote from an old German translation) "
newspaper had come to Rome, in which it was announced tha
English Admiral Franciscus Draak had attacked and plundered
city of San Dominico in the island of Hispaniola and had
booty of everything there. This together with other singular mat
was written to Master Paulo Maria Secchio, a wealthy and
looking merchant in Rome. Now, because he had dealings in t
city his interests were thereby affected and a certain Jew S
Ceneda was for the same reason alsoi interested in this matte
he had the Jew called to him and told him what news he had
ceived in the post. The Jew, not a little concerned that the n
might perhaps have been false, commenced to maintain the op
of what had been told to him and either because he allowed his
own goods to have too much effect over him or as a matter of f
he had no faith in this rumor or perhaps also because he wished
remain stubbornly by what he had said, he at last addressed th
words to the Gentile: "I will wager a pound of my body's fle
that this thing is not true," which manner of wager, whose on
purpose is to discover the truth, only those enter into who are ri
stubborn in their opinions; as for example, they say, 'I will wag
my head, I will bet a hand,' and so on.
Secchi who was not a little proud and peculiar straightway an
swered with this proposition: 'And I will place against your pou
of flesh a thousand scudi that this thing is true.' The Jew none t
less remaining by his words, so stubborn and arrogant was he,
fered for a moment his hand, and said: "If it please the Lord, w
shall arrange this 'thing by a writing." Then Secchi without any
further ado prepared in the presence of two witnesses a paper w
these contents: If the newspaper should be false in saying t
Draak at such and such a time had taken the city of San Dominico
in the island of H,ispanolia Master Paulus Maria Secchi s

bound to pay to the Jew Simon Ceneda a thousand scudi
coins of gold. But if, on the other hand the news should b
then shall the aforesaid Secchi have the right with his ow
and with his well sharpened knife to cut a pound of flesh ou
body of the aforementioned Jew and from that part of h
as it pleases him to select.' This matter was written right
and was witnessed by two witnesses, the one a Christian, th
a Jew, but on both sides merchants of fair means and to ea
a copy thereof was given.
To the great misfortune of the Hebrew there came after
months the certain and unfailing news of the capture and p
ing of this city. Secchi then pressed with all his energy for
fillment of the compact that had been agreed to, and would
to it but that the promised pound of flesh should be cut fr
part of the body, mention of which proper modesty forb
which the reader will be able without much pains to gu
anxious Jew offered instead to give a thousand scudi with
sum he would have had to be satisfied in case he had won. S
would by no means consider any other fulfillment than tha
his pledge awarded him. And now because the poor devil k
no other help he ran to the Governor and begged that he sh
his -high authority to compel Secchi to accept the thousan
The Governor, however, knowing how eager the Pope was
nounce judgment in such cases, laid the whole matter befo
and requested that with his own judgment he should settle
pute. Sixtus had the Christian and the Jew called before h
the written obligation, and after they themselves had for s
laid their cases before him, he explained his opinion in the
ing words: It is no more than just that he who involves
in a bet should render unto the other what he has agreed to
in your case we shall see that the wager is carried out in ev
ticular. So seek out your knife and cut here in our pr
pound of flesh out of whatever part of the body of the Jew
please you to choose. Only this: do you also have a care f
that if you cut the least bit too little or too much you shall be
without mercy. Let the knife then be sharpened and bring
rect scales to me, that we may immediately get at this busi
When the poor merchant Secchi heard this judgment he
such a quivering as though he had suffered an attack of th
day fever. His eyes full of tears he kissed the earth at the
feet and by his conduct gave one to understand that he wou
again undertake so bold a deed. When the Pope asked hi
more he wanted he answered, weeping, "I am content Holy F

and do not ask for more than your benediction, and that the w
memorandum be torn to pieces. Hereupon the Pope turned t
Jew, and said: "But what say you? Are you likewise cont
The unfortunate Jew who looked upon himself however as m
fortunate when he heard this so good a pronouncement of the
well knowing that it would be impossible to cut so exact a p
his flesh, gave this answer, "Perfectly content, Holy Father
Pope alone had more to say: "We are however by no mean
tent; the Governor as the representative of Justice also not
what sort of law was it that taught you to enter into this man
wager? The underthanes of the Princes or to speak more cle
the men of the whole world have only a right to the use of
bodies: they can sell neither part nor parcel of them, unless
expressly allowed by the over-lord.
After this they were both led into prison and the Pope or
the Governor, at the same time, to deal with them most shar
that reflection upon their example might induce others not to
into such vexatious wagers. The Governor said that they cer
deserved a penalty of a thousand scudi each. And the Pop
tinued: And you think this is enough? You think that a s
shall in this way be free who would dispose of his life accor
to his own whim. Hasn't the Jew in giving Secchi the right
a pound of flesh from his body put himself under an apparent da
of death? And is not this the same as becoming a self-murd
And has not Secchi committed a voluntary criminal assault, i
that he first of all accepted the bet to cut a pound of flesh out of
Jew, then concluded the bet and finally wished even to have
filled? That the Jew must needs have died from this cut do
require greatly extended proofs; for one needs only to consid
nature of that part of the body where the other had contem
performing his rights under the wager. Shall not then thes
wanton murderers make penance to our government with a pa
of money?
To this the Governor answered: "The merchant protests most
mightily that it had never come into, his thoughts to carry his claims
to a conclusion, but that he was only of a mind to put the Jew to
shame and to heartily frighten him. And the Jew maintains at the
same time that he would never have entered into such an arrange-
ment had he not thought that it would never come to fulfillment."
Sixtus did not allow the Governor to finish, but commenced: "But
how can we believe such assurances which are first made in our pres-
ence and in the presence of the judge and which are only extorted
from them by the fear of justice. Let them both be led to

lows and sentenced to death. Afterward we shall order what more
shall be done to them.
Both were thus condemned to death and the judgment made
public in the usual way. Although no man ventured to declare this
sentence inequitable yet many there were who were greatly dis-
turbed because of it: for Secchi had aristocratic and wealthy rela-
tives and the Jew was one of the foremost of their synagogue, and
in this way it came about that from both sides many memorials and
petitions came pouring in upon Cardinal Montalto, begging that
life at least be spared to these two. Now the Pope had at no time
intended to carry out his sentences but only to frighten the others,
the more so, that in the future they would learn to be more ware in
such cases and so he allowed his mind to be changed and spared
their lives but sent them to the gallows. He allowed also that this
latter penalty should be foregone if each would buy his freedom
with 2,oo0 scudi and the money given to the newly commenced
building of the Hospital di Ponti Sisto. But this money may not
be paid until the chains have first been fastened to their feet. In
such a way they secured their freedom, and this was the first time
that Sixtus mitigated a penalty once pronounced or showed mercy
to criminals.
Let one imagine that Shakespeare had vanished from England
between the years 1585-1590 and that he also during this time was
in Italy, then can one safely conclude that this whole story had come
to his notice.
It must be noted: Shakespeare did not get the story from Letis'
book, for that was first published in I630, but as we have said, it
is highly probable that Shakespeare had heard the story himself in
Italy where these events like a series of other famous judgments
of Pope Sixtus had undoubtedly aroused attention and were talked
about on all sides. This Sixtine story stands probably in a psycho-
logical relationship to an old legend. In old Buddhist tales is to be
found the story of a man who borrows money from a merchant and
makes over to him a pound of flesh as security. This story occurs
again and again in the Sages of the Asiatics. In Europe, in the
books of stories and legends known as the Gesta Romanorum, which
had appeared in England in the I3th or I4th centuries, the same
matter is to be found in such a form as to exhibit the most striking
resemblance to the Shakespearian drama.
It is there told: A knight sought in marriage the daughter of
King Lucius. To accomplish this a thousand marks was necessary.
He begged a merchant to lend him this sum. Then the story goes
on: The merchant would not agree to lend the money excep
alone upon this condition: that if within three days he could n
return the thousand marks he should then allow the merchant
cut a considerable piece of flesh from his body, from whatsoe
part he chose, and that he should furnish a writing containing
agreement, and that it should be penned in his own blood. T
pledge and solemn promise the knight gave and also the writin
it was required of him. Thereupon the merchant gave him
money and he went with it to the court and offered himself to
virgin daughter of the king. The virgin kept him a whole w
with her in her chamber, without that anyone had become awar
it. But in the midst of all his joy he had forgot his vow to
merchant and as he thought of it, he commenced to weep with g
lamentation. Then the young lady asked him what his trouble
and what had thus suddenly happened to him. Then he told
how he had bound himself to the merchant and how the day o
grace had now passed. The lady comforted him and said: Go
him and offer him the money and if he will not take it, ask him wh
it is he will have from you and come again to, me that I may
it to you. So the knight agreed and went to the merchant
begged him to take the money, but unfortunately he would not
to it, and said he would hold him to his agreement and led
straightway before the judge. But now it was a rule of law
he who had voluntarily bound himself to another must carry
his agreement. The lady had however sent out messengers to s
how it went with him. They come back and told her he was a pr
oner before the court. She received a great fright, and quickly
on men's clothes, jumped upon a horse and rode to the court wh
she was by everyone taken to be a knight. Then she went to th
merchant and asked him whether he would take the money and
done with his anger against the knight. But the merchant wou
not hear to that, and when she perceived she could do nothing w
him, she said, "Good, since the knight has thus bound himself
shall make good his promise. Now you well know that it is a ru
of law that whoso spilleth the blood of another his blood shall
be spilt. When the merchant perceived that he would gladly ha
taken the money. But the lady then said: "No, that cannot now
because you would not before take the money," and called the jud
that they might say what the law was. They all decided that th
merchant might cut his piece of flesh, but would dare shed
blood, and that therefore the knlight must be freed. When
heard that she thanked the judges, rode again to her court, too
off her man's costume and dressed again in her own cloth
though she had not been away."
Still more close is the resemblance between the Shakespe
material and an Italian story of Giovanni Fiorentino, in the s
'II Pecorone,' which was written in 1378 and first printed in
This story is undoubtedly a continuation of the story of the '
Romanorum.'
The money lender is here a Jew and is given only the name, 'the
Jew.' He lives in Mestri near Venice. The scene of the action is
Venice. The young lady lives in Belmonte. Her suitor, who is not
called Bassanio, but Gianetto, does not himself borrow the money
but it is done for him by his friend, not Antonio-but Ansaldo.
I need not examine the other sources from which Shakespeare
may have 'created.'
For the question which interests us here, these things have not
the significance of sources. We are much more of opinion that
R.ckert's words are here applicable:
"A rose lay in the dew
Into grey pearls it grew
As the sun upon them shone
Into rubies had they grown."
The sun of Shakespearian art has ennobled these stories. His
genius has gathered together as in a reflector the eternal problems
of life-here the phenomena of legal conflicts. How right becomes
wrong and wrong becomes right, as in the eternal conflicts between
the Ideal and the Real-how through exaggeration, arrogance and
breach of law that one is crushed who believed in the inflexibility of
the law;-all this is reflected in the tragic fate of Shylock.
Kiel. TH. NIEM1YER.
EDITOR'S NOTE.-The foregoing ar

of Kiel, Privy Counsellor, Preside
Association, was translated by Wa

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The Judgment against Shylock in the Merchant of Venice

Author(s): Th. Niemeyer

T HIS subject has already received the attention of jurists. In

the laws of Venice in force at the time of the action o

reconcilable with that expectation that he cared nothing

Thou know'st that all my fortunes are at sea;

Bassanio goes to Shylock and requests a loan of 3000 ducats for

Shylock immediately concludes, "If I can catch him once

Well, Shylock shall we be beholding to.you?

Shy. Why, look you, how you storm!

Portia utters this judgment in the following words: (turnin

And now follows the climax of the scene.

Shylock (lifting the scales)

But, in the cutting it, if thou dost shed

It should be noticed that Portia did not first in her judgment

But considering the question from the standpoint of the E

the laws of Venice, by which, of course, is meant the law o

cording to a very widely extended interpretation) gave to se

in the island of H,ispanolia Master Paulus Maria Secchi s

more he wanted he answered, weeping, "I am content Holy F

from them by the fear of justice. Let them both be led to

EDITOR'S NOTE.-The foregoing ar

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