MAJOR LEGAL PROBLEMS WITH THE TRIAL SCENE
Why Even Have A Trial?
The purpose of a trial is to resolve a dispute. In cases involving a debt, the Creditor claims that the Debtor owes him money, and the Debtor either denies the debt, or contests the amount due, or simply requires the Creditor to prove the claim. The great majority of such disputes are settled out of court.
But there was no dispute in Shylock v. Antonio. The Creditor (Shylock) and the Debtor (Antonio) both asked the Duke for the same judgment. Antonio freely admitted the debt, and was ready, willing, and able to live up to his side of the bargain.
Problems With the Duke as the Presiding Judge
In addition, Shakespeare had Judge Portia refer to crown, scepter, and throne in her Quality of Mercy speech. The Doge did not wear a crown, nor did he carry a scepter. Furthermore, monarchs do not sit as lowly judges in a court of law; theirs is a grander Court.
Incompetent. The Duke had no idea how to even begin a trial, let alone conduct one. No one called the court to order, or the case on for trial. The Duke initially excluded the Plaintiff from the court, and began the trial by saying, What, is Antonio here? Judges never begin trials in this awkward fashion. In any event, Antonio was the Defendant; one of only three other characters on stage; and someone whom the Duke already knew. In addition, the Plaintiff always begins the trial; the Defendant does not announce "ready" until after the Plaintiff has done so.
When Shylock was allowed into the courtroom, the Duke did not ask him to announce ready and to call his first witness, as a real judge would have done. Instead, he began by personally confronting Shylock, and by pressuring him not only to give up his claim for the forfeiture entirely, but also to forgive part of the principal (which issue was not before the court). He then allowed Bassanio and Gratiano—who were not even parties to the litigation—to argue, insult, and shout at the Plaintiff as the trial continued, making no effort to maintain order in his court.
Disqualified. Before having Shylock called into court, the Duke conducted in public what amounted to a private conversation about the case with one of the parties without the other party present (ex parte communication). In addition, the Duke showed bias towards Antonio (I am sorry for thee) and prejudice against Shylock (an inhuman wretch). Furthermore, the Duke had previously acted as an advocate for Antonio (Twenty Merchants, The Duke himself, and the Magnificoes Of greatest port have all persuaded with him). Any of these violations of judicial conduct would have caused the Duke to be disqualified from hearing Shylock v. Antonio.
Problems With Portia as the Functional Judge
Elizabeth with Crown and Scepter
Inappropriate. There was no reason for the Duke to ask Bellario to decide the case. According to the way in which Shakespeare set up the trial, the Duke cannot deny the course of law; the law was clear, and the case was open and shut. Furthermore, no professional judge sitting on the Court of Queen’s Bench would send for some private lawyer to determine any case filed in his court. A judge might permit a third–party lawyer to argue a point or to submit a brief as an amicus curiae (friend of the court), but never to act as a substitutus curiae, particularly when that same judge remained on the bench during the trial. The very notion is as laughable today as it would have been in Shakespeare’s time.
Illiterate. Shakespeare made the sequence of events in Act 3 Scene 2 clear: Bassanio chose the correct casket; Portia—describing herself as an unlessoned girl, unschooled, unpractised—gave herself and everything she owned to Bassanio; Gratiano won Nerissa; Salerio brought the letter from Antonio; Salerio and Jessica informed everyone that Shylock was determined to have Antonio’s flesh; Portia asked that someone read Antonio’s letter out loud; and Portia exclaimed, O love! Dispatch all business and be gone.
Incompetent. Portia was pretending to be a civil lawyer. Bassanio later told Portia that he had given his ring to a civil Doctor. Civilians were ignorant of the many precedents that formed the common law, and did not know the formalities of trial practice and procedure in the common law courts. As a consequence, civilians—like the incorporeal Bellario was, and like Portia was pretending to be—were prohibited from practicing as advocates before any of the great courts at Westminster Hall, or from sitting as judges on either Common Pleas or Queen’s Bench.
Disqualified. Portia was not a lawyer of any kind, and was perpetrating a fraud on the court by appearing in disguise, under an assumed name, and pretending to be one. Furthermore, she was the spouse of the Defendant’s close friend, who had incurred the very debt in question on behalf of her husband. In addition, she was the source of all funds being offered in court in settlement of the dispute, and was at least as biased and prejudiced as the Duke.