- A longer, more adequately argued version of this essay is forthcoming in English Literary Renaissance under the title “The Transformation of Intentionality: Debt and Contract in The Merchant of Venice.”
- This is amply documented in William J. Jones's “Conflict or Collaboration? Chancery Attitudes in the Reign of Elizabeth I,” 5 The American Journal of Legal History 12 (1961). It turns out, in fact, that the two courts supplemented each other with the document-centered Chancery proceedings providing the means for common-law plaintiffs to obtain important evidence for the pursuit of their claims.
- The main exponents of this consensus reading are: Mark Edwin Andrews, Law Versus Equity in “The Merchant of Venice” (Boulder: University of Colorado Press, 1965); Maxine MacKay, “The Merchant of Venice: A Reflection of the Early Conflict between Courts of Law and Courts of Equity,” 15 Shakespeare Quarterly 371 (1964); George W. Keeton, Shakespeare's Legal and Political Background (London: Sir Isaac Pitman & Sons, 1967), pp. 143–146; and Nicholas W. Knight, Shakespeare's Hidden Life (New York: Mason and Lipscomb, 1973), pp. 178–190.
- In 1976, E. F. J. Tucker in “The Letter of the Law in The Merchant of Venice,” 29 Shakespeare Survey 93 (1976) dissented from this consensus in attempting to show that it depended on a series of misreadings of legal documents. But his argument did not succeed, as Walter Cohen in his influential article “The Merchant of Venice and the Possibilities of Historical Criticism” 49 English Literary History 788, n. 55 (1982), argued that any equitable reading depended on the development of the notion of equity in the Chancery. So even if the advocates of the Common-Law-Courts-versus-Chancery reading got the details wrong, their general account of the conflict as between conscience or equity and strict justice was correct. This claim seems to have succeeded, for when William Chester Jordon announced the current legal consensus on Merchant in his “Approaches to the Court Scene in the Bond Story: Equity and Mercy or Reason and Nature,” 33 Shakespeare Quarterly 49–50 (1982), Tucker's dissent was not mentioned. Even more recently, Arthur F. Kinney repeats the current consensus view in his “Sir Philip Sidney and the Uses of History,” The Historical Renaissance, Heather Dubrow and Richard Strier, eds. (Chicago: University of Chicago Press, 1988), p. 305. M. M. Mahood's introduction to The Merchant of Venice (Cambridge: Cambridge University Press, 1987), pp. 17–18, recalls Tucker's view, but for Mahood the issue still remains that of equity against the letter of the law.
- Because of the consensus reading, it is important to point out that by the 1590s the Court of Chancery had developed the practice of giving relief when bonds imposed extreme hardship. Chancellors had done so since the fifteenth century. And without doubt the Chancery in Shakespeare's day would have granted relief to an obligor such as Antonio who had missed his payment day but was willing to pay a short time after. So if we try to read the court scene as a case of Chancery or equitable intervention, then we trivialize the scene since the principle of Chancery intervention in such cases was well understood. (On Chancery practice, see A. W. B. Simpson A History of the Common Law of Contract (Oxford: Clarendon Press, 1975), pp. 118–120.)
- The leading exponents of this near-consensus view are: C. L. Barber in “The Merchants and the Jew of Venice,” Shakespeare's Festive Comedy (Princeton: Princeton University Press, 1972), pp. 163–191, John Russell Brown in his introduction to The Merchant of Venice (London: Methuen, 1964), pp. xi–lviii, Lawrence Danson in The Harmonies of The Merchant of Venice (New Haven: Yale University Press, 1978), and Frank Kermode “The Mature Comedies,” in Early Shakespeare, John Russell Brown and Bernard Harris, eds. (New York: St. Martin's Press, 1961), pp. 211–237. Recently, Michael Ferber has restated and updated this view by showing how Shakespeare mixes certain Christian, Aristocratic, and other ideologies together in his “The Ideology of The Merchant of Venice,” 20 English Literary Renaissance 431 (1990). Marianne L. Novy also belongs in this group, though she distinguish's Portia's ability to receive graciously from the narrower Venetian abilities. See her “Giving, Taking, and the Role of Portia in The Merchant of Venice,” 58 Philological Quarterly 136 (1979). Richard Weisberg in his Poethics (New York: Columbia University Press, 1992), pp. 102–104 follows Novy in depicting a Portia whose sensibility and thinking goes beyond the Venetians'. Weisberg sees Portia as realizing the right place for Shylockian unmediated exactitude, and that is in intimate relations not in commercial ones. Interestingly, the argument against mediation was historically that of the Puritans, and it was from this argument that the spirit of the law, with which Portia is often associated, took on new meaning. For how one did something—worshipfully or not—came to replace an interest in what one did.
- This essay focuses on the relation between The Merchant of Venice and (1) the changes taking place in everyday English social practices and (2) the way those changes are articulated in the common law. Therefore, this essay will ignore the relation between Shakespeare's Venice and the actual Venice or Shakespeare's Venice and the actual English understanding of Venice. Neither of these relations could go very far in examining the relation of the play to everyday English social practices. But for work on the relation of the play to both the actual Venice and to the English understanding of Venice, see Cohen, supra note 3 at 765–789 and M. M. Mahood, supra note 3 at 12–16.
- Although putting this essay's main points schematically may make it appear that the essay endeavors to reveal an allegorical relationship between the legal case and the play or, more simply, to show that the play dramatizes the arguments of the case, such an allegorization or dramatization is not the point. First, certain of the legal arguments that the play calls attention to were made only after the play was written. Second, and more important, this essay is supposed to show that the play draws on the practices that underlie the actual legal arguments.
- Instead of “undertaking,” we would say informal agreement. But to think in terms of an informal agreement already sets the case in the post-1602, contractual world it established. In that world, we treat informal agreements as a species of deficient formal (i.e. contractual) agreements.
- The Medieval law of debt divided into the formal debt upon an obligation—a bond—and the informal debt on a contract, where a contract amounted to any informal transaction where something changed hands and no sealed document recorded the terms. The informal action of debt was further subdivided into pure debt (for money detained), debt in the detinet (for fungible goods other than money detained), and detinue (for a particular thing detained). Since court awards were for value or the thing, leaving the choice to the defendant, little will be made of these distinctions in the law of informal debt.
- Bonds speak out of the mute world of customary debt. Bacon himself argued that if one were to give words to a bargain and sale and then seal those words, one would have a bond, not a covenant (a written assumpsit). (Baker 61.) In law, a bond simply signified that a debt already existed, presumably one contracted in a customary way, and that the person who sealed the bond agreed to pay the debt on a certain day. Moreover, the sealed instrument was dispositive in that it required no ancillary proofs. It took away wager of law and, in the case of a simple bond, jury trial. The person who sealed the bond had already spoken in the bond and bound his conscience by his words there. There could be no going behind the bond to see if there were any actual debt, just as much as there could be no going behind the wager of law. (Undoing a bond, as Portia does, would be then the strongest case imaginable of undoing the customary law of obligation.)
- Sir Edward Coke, The Reports of Sir Edward Coke, vol. 76 of The English Reports, Max A. Robertson and Geoffrey Ellis, eds. (London: Stevens & Sons, 1907), at 4:95a.
- Millington V. Burges (1587), J. Gouldsborough, Reports of that Learned and Judicious Clerk, J. Gouldsborough, vol. 75 of The English Reports, Max A. Robertson and Geoffrey Ellis, eds. (London: Stevens & Stevens, 1907), p. 66. In this case, the court allowed the defendant to wage his law.
- Anonymous (1587), Gouldsborough, 58. Anderson told the defendant that the act of the third party could not clear his debt.
- There are others in manuscript reports. See J. H. Baker, “New Light on Slade's Case,” 29 Cambridge Law Journal 51–67 & 213–236, especially 230 n. 94 (1971).
- In arguing from an anecdote, I am drawing on the methods of such phenomenologists as Heidegger and Merleau-Ponty. The point will be to locate in the margins of our own practices those practices that make sense of the law of debt. Later, we shall see that Shakespeare's Venetians frequently conceive of their situations in terms of similar exemplary stories. But they develop their exemplary stories as a way of distancing themselves from the immediate situations they inhabit in order to draw themselves into a generic rhetorical world. The point of my anecdotes will be to do just the opposite, to make us aware of aspects of our situations that we generally pass over. In both cases, however, the anecdotes and stories are a way of calling attention to particular practices.
- This clause and the rest of Bacon's argument, which is being paraphrased here, appears in Baker 62.
- The kind of solicitation that I have in mind here is like that of those student papers which solicit us to write additional pages of comments. I, for one, seldom sit down determined to write more than a page of comments, but I do, on occasion, write more than two pages of comments when I warm to problem I am describing. I imagine that in a customary society, a man who raises horses for the market can find himself drawn to examine one horse or another and then before he knows it, he could find himself getting the horse ready for market, just as before I know it I am half way through the second page of comments.
- The details here match closely Mitchil v. Aleslree (1676); Sir Peyton Ventris, The Reports of Sir Peyton Ventris, vol. 86 of The English Reports, Max A. Robertson and Geoffrey Ellis, eds. (London: Stevens & Sons, 1908), at 1:295; Sir Creswell Levinz, The Reports of Sir Creswell Levinz, vol. 83 of The English Reports, Max A. Robertson and Geoffrey Ellis, eds. (London: Stevens & Sons, 1908), at 2:172; and Jos. Keble, Reports in the Court of Kings-Bench, vol. 84 of The English Reports, Max A. Robertson and Geoffrey Ellis, eds. (London: Stevens & Sons, 1908), at 3:650. I follow Milsom in treating this case as representative [S. F. C. Milsom, Historical Foundations of the Common Law (London: Butterworths, 1981), p. 311]. Cases like it were certainly prevalent by the 1570s (Id., at 310).
- I am not using “intentionally” here as a synonym for purposefully. Rather, I mean intentionally in the philosophic sense. The subject's inspection of his or her neighborhood consists of lots of observations with determinate mental content (the intention), which is either conscious or which may be made conscious through simple interrogation or introspection.
- See Baker, supra note 12 at 62–63, n. 68.
- 4 Co. Rep. 93b–94a.
- I,i,29–37. All quotations of The Merchant of Venice will be from William Shakespeare's The Merchant of Venice, John Russell Brown, ed., Arden edition (London: Methuen, 1964), and future line references will appear parenthetically in the text.
- For these plays, the references come from The Riverside Shakespeare, G. Blakemore Evans, ed. (Boston: Houghton Mifflin Company, 1974).
- When Nerissa changes the subject, (I,ii,32) we are probably meant to suppose that her arguments for the reasonableness of the casket game have failed to touch home.
- For more on this Portian rule-skepticism, see Saul A. Kripke, Wittgenstein on Rules and Private Language (Cambridge: Harvard University Press, 1982), pp. 7–55. Kripke's account of the destructive part of Wittgenstein's argument fits Portia's practice. Kripke's argument like Portia's depends on three claims. First, any customary rule can be read to fit all but the particular circumstances of the particular case in question. Second, restating the rule to fit all but the particular circumstances at hand gives just as good a hold over previous customary behavior as the older statement of the rule. Third, something, if only our anxiety about applying general rules to particular circumstances, will fit with the surprising restated version of the rule. (We were anxious about applying rule X in this situation because deep down deep, we suspected that it was really rule X', the restated version of rule X, which applied.)
Law & Literature
Volume 5, 1993 - Issue 1: A Symposium Issue on The Merchant of Venice