The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1902-01-12
WAS PORTALS LAW BAD?
Interesting Discussion Anent the
Case of ShyIock VS.. Antonio.

Chicago Journal.
1t seems that the celebrated case of Shy
lock VS.. Antonio, Shakes. 81 CTemple ed.),
was cited in the Appellate Court in this
city the other day by counsel who sought
to apply the principle therein laid down to
the case of a guarantor on a note. That is,
that obligations must be strictly con-
strued, and when Antonio had agreed to
forfeit pound of flesh. nothing being said
about blood, that blood is not included in
the forfeit and must not be taken. Counsel
maintained that Portals decision made the
bond mere waste paper, and by the same
reasoning the guarantor's obligation in the
case at bar was also waste paper.
Judge Waterman, whose scholarly and
literary attachments are well known. prob
ably fresh from new hearing of the case
at the Illinois Theater as rendered by Sir
Henry Irving and Miss Terry, did not
ignore or refuse to consider this citation by
counsel.
Judge Waterman took the ground that
Portia did not make the bond waste paper,
but converted it into an instrument of op-
preston by means of which the hapless
Jew was robbed of all he had. But Portals
judgment, he declared, was not the law in
this or any other country"
1t is interesting question and has
often been discussed both by lawyers and
laymen. One thing must not be lost sight
of, and that is that it might have been
the law when the case first arose and was
decided, though no longer a precedent in
these days. There decisions of Coke, of
Hale and of Holt, who were the greatest
of England's chief justices, that are now as
much waste paper as Portals decision.
AT the period the case of Shylock VS.. An
tonic was heard the common law was very
rigid. The ameliorating influences of equity
Jurisprudence had not yet been felt The
literal fulfillment of contracts could be ex-
acted. If bond was forfeited by non
payment of principal and interest the whole
penalty might be demanded, so that Shy
lock was strictly within his rights in ask
ing the forfeiture.
BY the same rule of considering the letter
and not the spirit of a contract Portia was
right in deciding, bubble though it seems
to be, that not one Jot of blood should be
taken. because no blood was mentioned in
the bond.
The law thus laid down by Portia about
1896 remained unquestioned until 1892 when
it was first attacked in an essay published
in London, entitled IAN Apology for the
Character and Conduct of Shyock' Next
in Blackwood's Magazine for June 1897 the
reasoning of Portia is sharply criticised by
a lawyer, though he holds that the judg-
ment itself is right.
In the Atlantic Monthly for April 1885,
there is an article entitled "Shylock VS.
Antonio; a Brief for the Plaintiff on Ap-
peal" by Charles III. Phelps, in which the
fallacieS of Portals reasoning and cOnclu-
sion are attempted to be shown.
The late Senator Davis, in his little vol
ume on Law in Shakespeare" says that
Antonio might have caused an Injunction
to be served on Shylock."
What POrtia should really have done was
to recommend Antonio TO file a bill in
chancery, meanwhile staying proceedings
in the case until the chancellor had passed
upon ii. But that would not have improved
the play.
We are glad to note that on occasion the
bench and bar of Chicago can leave for a
moment the nice, sharp outlets Of the
law" and make pleasing excursions into
literature. They thus lend grace and force
to arguments that might otherwise be ex
tremely dry.