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TRIAL SCENE EXCERPTS AND DISCUSSION

Judge Portia's Trial Strategy

I have included this conjectural analysis in order to demonstrate the enormous difference it makes in understanding the dynamics of the Trial Scene when one considers it as a trial: an impossible trial that was taking place in the Court of Queen’s Bench, but a trial nonetheless.

Trials and trial strategies have not changed all that much in 400 years; it’s still the same old story, with slightly different particulars. I have imagined myself as a Serjeant-at-Law in the audience of one of the first performances of
The Merchant of Venice in 1597. How would I have understood what Judge Portia was up to when she first encountered Shylock and began the trial proper?


The excerpts are from the edition that I am preparing. I will discuss primarily those matters having to do with trial strategy which appear on the surface level of the play. I plan to discuss the several other dimensions of meaning that Shakespeare included in the Trial Scene at a later date. However, I will make note of several significant events that occur on the religious and political dimension of meaning. As Polonius might have said,
though this be comedy, yet there is method in't.


Excerpts and Discussion



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JEW

What, wouldst thou have a Serpent sting thee twice?
75






This is a key line in the play. Shakespeare has Shylock, as the Devil incarnated as a Jew, plainly warn Bassanio and the other Christians on stage of what is about to happen. Portia, as the Risen Christ, will shortly provide the Duke and Antonio with an opportunity to regain Paradise by showing mercy to one who clearly does not deserve it.

John Milton wrote about the First Sting in
Paradise Lost:

Of Mans First Disobedience, and the Fruit
Of that Forbidden Tree, whose mortal taste
Brought Death into the World, and all our woe,
With loss of _Eden_, till one greater Man
Restore us, and regain the blissful Seat… .


The Duke, heeding Portia's plea in
The Quality of Mercy speech, immediately shows mercy to Shylock. However, when Portia gives Antonio the opportunity to show mercy, he does not. The Duke then retracts the mercy he had previously shown by threatening to execute Shylock if he did not agree to Antonio's added conditions. The Second Sting.


DUKE
You are welcome. Take your place. 180

Are you acquainted with the difference
That holds this present question in the Court?

PORTIA
I am informèd throughly of the cause.



Shakespeare left it a mystery regarding how Judge Portia became so well–informed. She never conferred with Bellario, nor did she ever produce any written opinion from him. She was illiterate, and could not have read the two statutes that Shakespeare invented. However, she does demonstrate a trial lawyer's Prime Directive: Be Prepared.



PORTIA
Which is the Merchant here? And which the Jew?



Judge Portia knew which was which. She was pretending to be unbiased and impartial so that she could lead Shylock by the nose during her in–court demonstration. She also wanted the Duke and Antonio to believe in her impartiality so that their free choice concerning Shylock’s fate would not be colored by their perception of her preference.


DUKE
Antonio and old Shylock, both stand forth.
185

PORTIA
Is your name Shylock?

JEW
Shylock is my name.



Recall what happened in Act 1 Scene 3 when Bassanio invited Shylock to dine with him and Antonio. Shylock said,
Yes, to smell pork, to eat of the habitation/which your Prophet the Nazarite conjured the devil into.



This quotation is a reference to the Gospel According to Mark 5.6-11 from the Geneva Bible:

6 And when he saw Jesus afar off, he ran, and worshipped him,
7 And cried with a loud voice, and said, What have I to do with thee, Jesus the Son of the most high God? I charge thee by God, that thou torment me not.
8 (For he said unto him, Come out of the man, thou unclean spirit.)
9 And he asked him,
What is thy name? and he answered, saying, My name is Legion: for we are many.
10 And he prayed him instantly, that he would not send them away out of the country.
11 Now there was there in the mountains a great herd of swine, feeding.
12 And all the devils besought him, saying, Send us into the swine, that we may enter into them.
13 And incontinently Jesus gave them leave. Then the unclean spirits went out and entered into the swine, and the herd ran headlong from the high bank into the sea, (and there were about two thousand swine) and they were drowned in the sea.



Shakespeare's audiences would have recognized the reference to
Mark, and also would have known that Shylock's reference in Act 1 to a Gospel passage to justify refusing to eat pork was wrong.

The quotation from
The Merchant of Venice in Act 4 is the delayed payoff for Shylock's inapposite remark in Act 1. I have capitalized and highlighted the relevant syllables using Shakespeare's usual iambic pentameter rhythm. As you can plainly see, Shakespeare virtually copied the words from the Gospel.

Why?

The answer relates to those serious issues that I will address at another time. However, if you think of Portia as the Risen Christ returned to earth to sit in judgment, and if you think of Shylock as the Devil Incarnate, then these highlighted lines constitute mutual recognition.

Jesus recognizes Shylock as the Devil, and asks in mock wonder,
Is your name Shylock? Shylock recognizes Portia as Jesus, and responds in a somewhat self-deprecating manner that Shylock is only his name, not his real identity.




PORTIA
Of a strange nature is the suit you follow.
Yet in such rule that the Venetian Law
Cannot impugn you as you do proceed.
190



Even in Texas judges do not announce the winner at the outset of the trial, without having heard any testimony or having admitted any documents into evidence. This statement was part of Portia’s deliberate demonstration, intended to convince Shylock that he need not show any mercy, or take any money in settlement, because the law would grant him what he most desired. Recall the inscription on the golden casket: Who chooseth me, shall gain what men desire.

This was also Judge Portia’s first statement that the unalterable law of Venice supported Shylock’s claim for the forfeiture of Antonio’s flesh. This statement was at least disingenuous, if not verging on entrapment.


This statement commenced a strategic pattern: Portia would first assure Shylock that the unalterable Venetian law fully supported his claim. She would then urge him to show mercy by giving up the very thing he so desperately wanted. Finally, she would reiterate that the unalterable Venetian law guaranteed his success, thereby assuring that he would refuse to show mercy.



PORTIA
Then must the Jew be merciful.
195



Judge Portia directed this statement to the Duke and Antonio, knowing that it would provoke a negative response from Shylock. She knew from what Jessica told the wedding party that Shylock had no intention of showing mercy but was rather intent on obtaining Antonio's flesh. She alone knew of the Any Alien Who statute, which would provide both the Duke and Antonio with the opportunity to show mercy to Shylock, or not.

In addition, Shakespeare (as the dramatist) was priming the audience to expect them to choose not to show mercy so that they would be altogether surprised when the Duke hastens to show Shylock mercy.

Recall that the Duke had said at the beginning of the Trial Scene that he and everyone in the court expected Shylock to show mercy. In fact, the Duke had previously told Antonio that Shylock was an
inhuman wretch,/ incapable of pity, void and empty/ From any dram of mercy. When Shylock predictably refused to show mercy, the Duke even said, How shalt thou hope for mercy, rendering none?




JEW
On what compulsion must I? Tell me that.




Shylock took the bait.



PORTIA
The quality of mercy is not strained.
It droppeth as the gentle rain from heaven
Upon the place beneath.

It is twice blest.
200
It blesseth him that gives, and him that takes.
’Tis mightiest in the mightiest. It becomes
The thronèd Monarch better than his Crown.

His Scepter shows the force of temporal power—
The attribute to awe and majesty—

Wherein doth sit the dread and fear of Kings.

But mercy is above this sceptred sway.
It is enthronèd in the hearts of Kings.
It is an attribute to God himself.
And earthly power doth then show likest God’s
210
When mercy seasons justice.




Portia delivered these lines primarily to the Duke. On the lines
‘Tis mightiest in the mightiest, it becomes/ The throned Monarch better than his Crowne./His Scepter shows the force of temporal power, Judge Portia would have gestured to the English throne upon which the Duke was sitting, the English crown that he was wearing, and the English scepter that he was holding.



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PORTIA
Therefore Jew,
Though Justice be thy plea, consider this:
That in the course of Justice none of us
Should see salvation. We do pray for mercy,
215
And that same prayer doth teach us all to render
The deeds of mercy.



Addressed to Shylock, but for the benefit of the Duke and Antonio. Portia knew from earlier remarks by Salerio and Jessica that Shylock had already resolved not be merciful.



PORTIA
I have spoke thus much
To mitigate the justice of thy plea,
Which, if thou follow, this strict court of Venice
220
Must needs give sentence ‘gainst the Merchant there.



As part of her strategy, Judge Portia reminded Shylock that the law, however reluctantly, would award him exactly what he most desired. She was not trying to persuade him to be merciful, nor did she later try to persuade him to settle the case for 9,000 ducats.

On the line
this strict court of Venice/ Must needs give sentence ‘gainst the Merchant there, Judge Portia closed her paean to mercy by reminding Shylock that the established law of Venice supported his claim. A sentence is the consequence of a guilty verdict after trial in a criminal court, and does not apply to a civil trial. It is also a unit of composition, used by writers like Shakespeare. (Just one example of Shakespeare's word play.)

One need not be a trial lawyer to know that it is unwise to begin settlement negotiations by conceding that the law entitles one’s opponents to everything in their petition, and then throwing oneself on their mercy. One generally tries to convince the other side that they face some appreciable downside by continuing with the trial. Judge Portia alone knew that Shylock had significant—not to say fatal—downsides, yet she did not even hint at any such until after Shylock had insisted on obtaining judgment. Only then did she spring the
One drop of Christian Blood Statute on Shylock and the astonished assembly.




BASSANIO
And I beseech you,
Wrest once the Law to your authority.
To do a great right, do a little wrong,
And curb this cruel devil of his will.



The legally savvy members of Shakespeare’s audience would have recognized Bassanio’s plea as a garden–variety request to a judge to distinguish Antonio’s case—with its differing facts and circumstances—from the existing precedent. The trial lawyers and judges in the audience would have already noted the several bases that Shakespeare had provided for making such a distinction.
Wrest recalls the wrestling term, on the hip.


PORTIA
It must not be. There is no power in Venice
235
Can alter a decree establishèd.



This was Judge Portia’s third statement that the unalterable law of Venice supported Shylock’s claim. Shakespeare never divulged the wording of this law.


PORTIA
’Twill be recorded for a President,
And many an error by the same example
Will rush into the state. It cannot be.




Shakespeare had Judge Portia contradict herself with her very next words, which recognized that her decision could alter the established law of Venice. Recall that Portia was pretending to be a Doctor of Laws, a civilian uneducated in—but aware of—the common law, which is based on precedent.

The
First Folio has her mispronounce the word as President. Although Shakespeare sometimes used the words precedent and president interchangeably, several circumstances indicate that President was a deliberate misspelling for a specific purpose.

For one thing, its use in
The Merchant of Venice as an almost–homonym for precedent occurred in a specifically legal context. For another, Shakespeare had originally used the word precedent in The First Quarto; in the version from which the First Folio was prepared, he had not only changed the spelling to President, but had also capitalized the word. In between the publication of The First Quarto in 1600 and The First Folio in 1623, Shakespeare and his company—by then The King’s Men—had revived the play and performed it before the Court in 1605.

Shakespeare used this occasion to make some minor alterations and clarifications. The boy actor who had played the original Portia had doubtless outgrown female roles; capitalizing
President may have been a way to remind the current boy actor to be sure to mispronounce precedent in this fashion.

Judge Portia’s words recall those of Judge Hussy in 1496, quoted and cited in Allen,
Law in the Making, p. 191: "Our decision in this case will be shown hereafter as a precedent (pur un precedent)."

In addition, Judge Portia acknowledged that a reporter must
have been present in court.

By the 1250s the very words of judges and pleaders were being taken down in writing, and shortly after that the year-books show counsel referring to earlier cases. When a judge in Edward II’s time remarked, "One may safely put that in his book for law," he may even have been addressing the reporters.
Increased emphasis on the single decision came in early Tudor times… "Moreover, the publication of abridgements, coupled with the printing of year-books, facilitated the use of specific citations in argument." (Baker, Fourth Edition, pp. 197-98.)
By this point in the play, most of those in Shakespeare’s audience would have known two things: that the court deciding the case of
Shylock v. Antonio was a common law court, because only in such courts would the decision be recorded and serve as a precedent; and that Portia’s statement was ridiculous—befitting her ignorance of the common law—because precedent is the very stuff of the common law, and is flexible enough to insure that such errors do not rush into the state.

Indeed, Portia’s statement indicated that
Shylock v. Antonio presented a case of first impression; that is, that her decision would have been the first judicial ruling on the particular issues involved in the case, and would become the law that might be applied thereafter to all similar cases. Just as any common lawyer would have done, Bassanio asked Judge Portia to distinguish Antonio’s situation from earlier rulings on the general subject, and to craft a new law for this new circumstance.

Had Judge Portia heeded Bassanio’s request, The Rule in Shylock’s Case might have been that, although the language in a bond ordinarily controlled the case, all forfeitures of any person’s flesh would not be allowed as a remedy. In this way, the common law can apply principles of equity, and insure that errors do not rush into the state.

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