PROBLEMS AT TRIAL

I have included the image below to help readers visualize what the Court of Queen’s Bench would have looked like in Shakespeare’s time. The legally informed members of his audience—from whose perspective I have written this analysis—would have had an image of this sort in their minds as they watched and heard the trial scene progress. What disparities would they have noticed?

THE COURT OF KING’S BENCH
CIRCA 15TH CENTURY


Top: Five presiding judges, all wearing coifs (white caps) and scarlet robes, trimmed in white.

Seated at table: King’s Coroner, King’s Attorney, Masters of the Court. All wearing parti-colored dresses of blue/mustard or murrey/green.

On table: green cloth, rolls, and writing materials.

Standing on table: two ushers, one in blue/mustard, the other in murrey/green. Each bears a staff. The one on the right is speaking, while the one on the left is administering an oath on the gospel to one of jurors (seated down left side of image).

Center: Prisoner in fetters stands at the Bar, in custody of the Marshall or tipstaff (to his immediate right). On each side of prisoner stands a Serjeant-at-Law, each wearing a coif and parti-colored dresses of green and blue.

Bottom: Six prisoners, chained by the legs, in the custody of two tipstaffs.
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The Elizabethans took protocol very seriously. Shakespeare deliberately violated protocol when he had the characters enter at the beginning of Act 4. He had the Duke enter first, followed by the Magnificoes, then Antonio, Bassanio, and Gratiano. Whether one considers the Duke either the head of the Venetian City-State or the presiding judge of the trial of Shylock v. Antonio, the Duke should have entered last.

Those of the Duke’s stature do not sit around and twiddle their thumbs while waiting for the lower orders to take their seats. The ordinary citizens—Antonio, Bassanio, and Gratiano—should have entered first, followed by the Magnificoes (who were really Courtiers), and lastly the Duke. An Elizabethan audience would have known right away that Something Was Up regarding the trial.

Missing Court Personnel

Shakespeare did not include any of the following in the trial scene: judges, who would have worn scarlet robes; a jury, which would have decided all contested issues of fact in a civil case, and guilt in a criminal case; ushers, who carried a white staff of office and kept order in the court; and one or more clerks, who would have administered the oath to the witnesses, kept track of the physical evidence, and maintained the roll of the case.

No Legal Representation

In Shakespeare’s time, as today, parties to litigation could represent themselves in court; then, as now, those who do have a fool for a client. Antonio knew that his very life was at stake, and Shylock desired his revenge so much that he would have refused twenty times the debt in settlement. Shakespeare did not provide either party with legal representation. Barristers and Serjeants-at-Law—the specially trained lawyers authorized to try cases in the common law courts in Shakespeare's time—wore special robes and distinctive headgear.

Lies to the Duke and
A Third Balthazar

The trial scene contains contradictions between what Shakespeare actually has happen in Act 3, and what Shakespeare has his characters later claim happened. In Act 4, the Duke asked both Nerissa and Portia the following question: Did you come from Bellario? and each responded with an obvious falsehood: I did. In addition, the incorporeal Bellario described at some length a conference with the incorporeal Balthasar that has nothing to do with the action of the plot.

Shakespeare employed three different characters with names that sounded almost exactly the same, but which were spelled slightly differently. Almost all modern editions ignore these differences in spelling and in characters, and use
Balthazar for all three. In point of fact, no editor or commentator of whom I am aware has ever mentioned the existence of a third Balthazar, whom I have identified as Balthasar2. I will use the First Folio spelling of these names; in addition, I will further identify each character by including after their respective names the order in which that character appears in the play.

Balthaser1 is one of Portia’s servants, whom she sent to her cousin in Mantua with a letter and instructions.

Balthasar2 is the never-to-be-seen person who conferred with the never-to-be-seen Bellario in Padua. Balthasar2 and Bellario make little or no sense on the surface level of the plot, and these characters have no counterparts in any of Shakespeare’s sources.

Balthazar3 is Portia, disguised as a Doctor of Laws.


DIAGRAM: What Actually Happened
Act 3 Scene 4

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1. Portia handed the letter to her servant, Balthaser1.
2. Portia sent
Balthaser1 to Bellario in Mantua.
3. Bellario provided the requested notes and garments to
Balthaser1.
4. Portia and Nerissa went to the common Ferry.
5.
Balthaser1 brought the notes and garments to the common Ferry.
6. Portia and Nerissa took the common Ferry to Venice, obtained temporary lodgings, and changed into their respective disguises.
7. In Act 4, Nerissa went to the court disguised as a Law Clerk.
8. In Act 4, Portia went to the court disguised as a Doctor of Laws,
Balthazar3.


DIAGRAM: What the Characters Claim Happened
Act 4 Scene 1


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Act 4 began shortly after Act 3 Scene 4 ended, with Nerissa and Portia both waiting outside the courtroom door. The Duke stated that he was waiting for Doctor Bellario to arrive and decide the case. Salerio informed the Duke that there was a messenger newly arrived from Padua, with letters from Bellario. The Duke called for the messenger and the letters.

1. Disguised as a Law Clerk, Nerissa entered, carrying a letter. The Duke then asked his first unnecessary question, having already been informed of these facts by Salerio:

Duke:
Came you from Padua from Bellario?

Nerissa:
From both.
My Lord Bellario greets your Grace.


Not true: Nerissa did not go to Padua and did not see Bellario.

While Bassanio and Shylock had one of their slanging matches, the Duke read Bellario’s letter to himself. He learned that Bellario had sent a young and learned Doctor to the court, and found out from Nerissa that this person was waiting just outside the courtroom. The Duke directed some of the courtiers to conduct this person into the court.


The Duke then said,

Duke:
Meantime the court shall hear Bellario's Letter.

You hear the learned Bellario what he writes,
And here (I take it) is the Doctor come.



The Duke made it clear that he was under the impression that Portia was Balthasar2, and Shakespeare did not have Portia correct that misimpression. In fact, the only time Shakespeare identified Portia as someone named Balthazar3 was in the stage direction for her entrance. No one ever addressed or referred to her by that name, only by her supposed title as Doctor or supposed function as Judge.

In addition, the Duke called the Court's (and the audience's) attention to Bellario's letter for a third time. Quite a bit of emphasis for a simple letter of introduction,
n’est-ce pas?

4. Having read Bellario’s letter twice, the Duke asked his second unnecessary question when he greeted Judge Portia:

Duke:
Give me your hand: Came you from old Bellario?

Portia:
I did my Lord.


Portia—that paragon of
wondrous virtues...nothing undervalued to Cato’s daughter (1. 1. 174–75)—told a bald-faced lie. Like Nerissa, she did not go to Mantua/Padua but rather went directly to the common Ferry.


No One Offered Any Evidence

Neither Shylock nor Antonio offered a single document into evidence, or called a single witness to the stand. Not that it mattered: Judge Portia had already decided that Venetian Law Cannot impugn [Shylock] as [he did] proceed before she even looked upon the bond or heard any testimony. Furthermore, Judge Portia herself did all the offering of evidence and questioning of witnesses; however, real judges in common law courts function as impartial referees, and do not take it upon themselves to prove either party’s case for them.

Shakespeare Invented Impossible Statutes

Shakespeare invented the two peculiar statutes. The first was the draconian One drop of Christian Blood statute. The supposedly evenhanded state of Venice would first confiscate all the property of, and then execute, any individual who shed so much as one drop of Christian blood. Judge Portia’s first ruling was based on this enactment—Thy self shalt see the Act—not on the specious argument distinguishing flesh, which was allowed by the terms of the bond, from blood, which was not mentioned in the bond. No English court would have accepted this distinction as a basis for avoiding the forfeiture; however, Shakespeare’s source stories did rely on such a distinction. Shakespeare dealt with this problem by supplementing the sources’ quibbling distinction with the express provisions of his imaginary statute. The second was the Any Alien who Directly or Indirectly Seek the Life of Any Citizen statute: another draconian, hypocritical enactment. This statute is discussed in more detail below.

Shylock Was Denied Due Process of Law

What began as an uncontested civil lawsuit to enforce the plain terms of a note suddenly turned into a capital criminal proceeding, in which the Plaintiff, Shylock, was now the Defendant. Without notice or any other due process of law, and within the space of only a few minutes, Shylock was charged with attempted murder; tried before a bogus judge instead of a jury of his peers—contrary to Magna Carta’s guarantee of an Englishman’s right to a trial by jury; found guilty; sentenced; and the sentence was carried out. When Gratiano wished for ten more godfathers (jurors) to bring Shylock to the gallows, he reminded the audience that the trial could not have been real, and Shakespeare reminds us that the unreal trial had to have occurred in England.

The Huge Sums of Money Involved

Coins—the primary form of currency in early modern Europe—take up space and have mass. Ducats should be translated as English pounds. The symbol for pound is £, which derives from the Latin word libra. The Zodiac symbol for Libra is a balance, an important image in The Merchant of Venice: Antonio pledged a pound of his flesh, which was to be weighed on a balance that Shylock brought into court. A balance is also a symbol for justice, from the image of Lady Justice who carries a balance in one hand and a sword—Shylock’s knife—in the other.

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In Shakespeare’s time, an English pound—both as a unit of weight and as a unit of currency—was equivalent to 12 ounces. The £60,000 that Portia gave Bassanio to pay the petty debt would have consisted of a large number of coins weighing a great deal. The primary monetary units were pounds, shillings, and pence—20 shillings, or 240 pennies, to the pound—minted from Sterling silver. Had the £60,000 been in such coins, they would have collectively weighed about 22½ tons. Bassanio, Gratiano, and Salerio would have needed an armed caravan to schlep that much wealth from Belmont to Venice, and then somehow drag it into or near the court.

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When Judge Portia said to Shylock there’s thrice thy money offered thee, she was pointing to at least 9,000 coins—3 times the original debt of 3,000 ducats/pounds. Had this amount been £9,000 in silver coins, they would have weighed approximately 6,750 modern pounds.



The Peculiar Settlement Negotiations

Shylock loaned 3,000 ducats to Antonio. Portia lovingly stated that her self, and what is [hers] to [Bassanio and his heirs] / Is now converted, thereby legally conveying to Bassanio 100% of her wealth and property. Jessica told the entire wedding party that Shylock would rather have Antonio’s flesh/ Then twenty times the value of the sum/ That [Antonio] did owe him. Portia then "gave" Bassanio part of what was now his own money in a known–to–be insufficient amount To pay the petty debt twenty times over.

Bassanio first offered
6,000 ducats to Shylock—twice the principal, the usual forfeiture provision in conditional bonds—who refused the offer, and stated that he would not accept 36,000 ducats. Not coincidentally, that was the precise sum arrived at by calculating the result of Portia’s initial statement, Pay him six thousand, and deface the bond/ Double six thousand, and then treble that. 6,000 x 2 = 12,000. 12,000 x 3 = 36,000.

Bassanio then re–offered the 6,000 ducats, and upped that offer by stating
if that will not suffice, I will be bound to pay it ten times over: it being either 30,000 ducats (ten times the amount of the condition)—still 6,000 ducats short of what Shylock said he would not accept—or 60,000 ducats (ten times the amount of the first settlement offer). Bassanio never withdrew his offer of either 30,000 ducats or the full 60,000 ducats, which he had brought with him.

Judge Portia then entered the negotiations directly, which real judges never do. (Well, hardly ever.) First, she told Shylock
there’s thrice thy money offered thee—9,000 ducats—which Shylock refused. What she was pointing to, or how she came up with this figure, remains obscure. She then bid Shylock again to take that same 9,000 ducats of her husband’s money, which she did not have either the real or the apparent authority to offer. Shylock again refused, insisting on the forfeiture of Antonio’s pound of flesh, which Judge Portia had assured him earlier he would obtain. Judge Portia never offered more than 9,000 ducats, despite her earlier instructions to Bassanio to pay Shylock first 36,000 ducats, then 60,000 ducats.

After learning of Shakespeare’s first invented statute, which effectively denied him the forfeiture, Shylock said,
I take this offer then, pay the bond thrice,/ And let the Christian go. To which Bassanio responded, Here is the money. Offer, acceptance, and tender in open court.

Judge Portia then intervened, canceling the deal that she herself had proposed and that Shylock and Bassanio had just concluded:
He shall have nothing but the penalty.

Shylock then said,
Give me my principal, and let me go. To which Bassanio promptly responded, I have it ready for thee, here it is. A second offer, acceptance, and tender in open court.

Judge Portia intervened yet again:
He hath refused it in the open Court/ He shall have merely justice and his bond, overlooking the fact that he hath also accepted it—twice—in the open Court.


Antonio’s Useless Use

Shakespeare employed the words use, seaze, goods, and gift to bollix up the final, and most specifically legal, aspects of the trial scene. Legal analysis begins with examining the precise terms of the relevant instruments and the significant utterances involved in the matter. Shakespeare described the terms of the statute, and set out Antonio’s legal utterances:

Portia:

It is enacted in the laws of Venice,
If it be proved against an Alien,
That by direct, or indirect attempts
He seek the life of any Citizen,
The party 'gainst the which he doth contrive,
Shall seaze 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...



Antonio:

So please my Lord the Duke, and all the Court
To quit the fine for one half of his goods,
I am content: so he will let me have
The other half in use, to render it
Upon his death, unto the Gentleman
That lately stole his daughter.
Two things provided more, that for this favour
He presently become a Christian:
The other, that he do record a gift
Here in the Court of all he dies possest
Unto his son Lorenzo, and his daughter.


A use involved ownership of real property, and was another kind of legal fiction, devised to avoid some of the problems involved in transferring real property in feudal and early modern England. The holder of the legal title would grant to someone else the use of a certain piece of property. The holder of the legal title still retained the title, which, for example, could still pass by inheritance to the holder’s heirs. The owner of the use enjoyed the benefits of ownership (all the profits from the land, for example); however, the owner of the use did not have legal title to the property, and could not convey title to anyone else. On the other hand, the courts (first Chancery, later the common law courts as well) would protect the interest of the owner of the use, and would compel, for instance, the heir of the legal titleholder to continue to recognize the rights of the owner of the use.

In 1535, Henry VIII forced through Parliament the unpopular Statute of Uses. Henry wanted the Crown’s feudal cut of any transfers of real property—the avoidance of which was one of the purposes for creating uses in the first place—and the act decreed that the legal title joined to the use. Consequently, a use no longer separated the legal title from the use of the property: the owner of the use became the holder of the legal title.

If the subject of Antonio’s use had been Shylock’s real property, then the use was useless.

The word seaze invoked the word seisin, also associated with real property. The formal means of conveying full legal title to someone else was by feoffment with livery of seisin. To be seised of real property meant that one owned it.

The word goods did not relate to real property at all; rather, it referred to personal property. In a mercantile context, goods constituted a merchant’s inventory.

According to the terms of the second statute that Shakespeare invented, Antonio already owned or was entitled to seaze one half of Shylock’s goods. Antonio thus already owned any such goods outright, and could dispose of them in any way that he liked, upon Shylock’s death or at any other time. Antonio had no reason to encumber these goods with a use, even if the concept of a use were to apply to goods as well as to real property. Antonio would have had to store whatever goods there might have been because he did not have the right to sell any of them.

In addition, Shylock may not have been able to engage in any trade; moneylending may have been his only source of income. Consequently, he may not have had any goods that could have been seazed.

On the other hand, Shakespeare at least suggested that the word goods applied in its mercantile context when he had Shylock state:

Shylock:
Nay, take my life and all, pardon not that,
You take my house when you do take the prop
That doth sustain my house: you take my life
When you do take the means whereby I live.

Even assuming that goods (in the mercantile sense) could be the subject of a use, they must be sold to be of any value. However, one who has only the use of certain property does not have the right to sell that property.

Under Shakespeare’s scenario, the State’s half of any goods that Shylock formerly possessed would have been returned to Shylock’s possession and control, and the other half would have been subject to Antonio’s use—effectively in his possession and control, except that he could not sell any of them. Consequently, Antonio promised that he would render that half of Shylock’s goods unto Lorenzo upon Shylock’s death; meanwhile, these goods (if any) were simply taking up space and depreciating in value.



The Pointless Deed of Gift

Antonio required Shylock to record a gift/ Here in the Court of all he dies possest/ Unto his son Lorenzo and his daughter. From a legal standpoint, this requirement was utter nonsense. Shylock had the full ownership of all of his remaining property during his life; this so-called gift would not take effect until after he had died. Nothing prevented Shylock from disposing of everything he owned at any time before his death.



Who Drafted the Deed of Gift, and When?

Judge Portia directed Nerissa: Clark, draw a deed of gift. However, Nerissa was only pretending to be a law clerk; in fact, she was a waiting gentlewoman, who would have had no idea what a deed of gift was, let alone how to draft one off the top of her head. Nevertheless, that deed magically got drafted while Portia and Nerissa were on their way from the court to their temporary lodgings, followed closely behind by Gratiano, bearing Bassanio’s ring.

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Would you retain this woman to draw a Deed of Gift?

(Elizabeth Vernon, Lady-in-waiting to Elizabeth I.)


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