[In the following essay, Halio examines The Merchant of Venice as a play concerned with "mercy in the context of justice."]

Much has been written about Shakespeare's legal prowess—or lack of it—in The Merchant of Venice.* However intrinsically interesting these discourses are—and a good many of them are extremely interesting—I feel compelled to argue that almost all of it is irrelevant. Shakespeare was, first and foremost, a dramatist who made his fortune at the box office. His plays were intended to be "get pennies," sure to attract good audiences that would pay their penny at the gate and sometimes another penny for a seat in the gallery. His plays enjoyed popularity, if we can judge by the number that were published by 1600—with or without his authorization, and by such testimonials and other evidence that have come down to us. His plays were popular in the public theaters and at court, both with the Queen in the sixteenth century and with the King in the seventeenth. With good reason, James I became the patron of Shakespeare's company, thereafter known as the King's Men, soon after he ascended the English throne in 1603.

Scholars love to speculate about Shakespeare's activities during his so-called "lost years"—the decade between the time of his marriage to Anne Hathaway and the birth of his children, and the first mention of his presence in London as an actor and playwright in 1592. Some believe he was a schoolmaster; others, that he was a soldier, or a sailor. Or—now we come to it—a law clerk. Certainly his plays are studded with legal terminology as well as allusions to classical authors, seafaring terms, and soldier's lore. But the fact remains that we have no facts. We simply do not know what Shakespeare did during those "lost years." Not that I think it matters. Whatever he did, everything we know about him and his plays indicates that he had an uncommon ability to absorb ideas, stories, language, and events, and to transform them through the alembic of his imagination into the greatest poetic drama the world has known.

I say all this, which probably sounds like a recital of truisms, because I want to focus on the dramatic use of legal materials in The Merchant and avoid what could be a fruitless argument over the validity of Shylock's contract with Antonio, or the "trick" Portia uses later to entrap her victim, or other legal and quasi-legal issues. As other plays demonstrate, such as Othello, The Winter's Tale, and Henry VIII, Shakespeare became increasingly adept at using trial scenes—or what amounted to trials—for dramatic effect.¹

Even before he wrote The Merchant of Venice, both in Henry VI, Part II, in the trial of the Duchess of Gloucester for witchcraft,² and in the deposition scene of Richard II,³ the play written most proximately to The Merchant, Shakespeare learned how dramatically effective trial scenes could be on stage. He knew, as we do in our addiction to "Perry Mason," "Matlock," or "L.A. Law," how intrinsically dramatic the law can be, especially when cases are brought to trial. But his emphasis remained, I repeat, on the dramatic effect, not the legality. Law was the vehicle, however rickety at times, that carried the drama; but Shakespeare's point—like the dramatic effect—was of another order of magnitude.

The Merchant of Venice allows us to grasp this idea perhaps better than any other play. Act IV is a masterpiece of dramaturgy, and it scarcely matters whether or not it is really a trial or simply a hearing. True, the Duke appears prejudiced from the outset. In speaking with Antonio, he calls Shylock a "stony adversary" and "an inhuman wretch." (IV, i, 4) When Shylock enters, the Duke expects him to relent and tells him so flat out:

Shylock, the world thinks, and I think so too,
That thou but leadest this fashion of thy malice
To the last hour of act, and then 'Tis thought
Thou'Lt show thy mercy and remorse more strange
Than is thy strange apparent cruelty. . . .

(IV, i, 17-21)

Not only the Duke, but everyone else in the court is favourably disposed towards Antonio and against Shylock, including Portia, when she enters soon afterwards. Note that Shylock enters alone, unaccompanied by Tubal or any other Landsmann; I think it is an error (if I may digress for a moment) to have any other Jew present, as often the scene has been staged. Shylock is alone, and his isolation is meaningful. He is isolated from the Venetian Christian community, of course, but here also from the Jewish community. More to the point, dramatically he is a solitary figure, one against many. Hero or villain or clown, he is still solitary. He knows everyone is against him but he remains unfazed. He truly believes he has Antonio "on the hip," right where he has long wanted him, and he has the law on his side. Both Shylock (IV, i, 38-39 and 101-02) and Antonio (III, iii, 26-31) realize the dangers to Venice (III, iii, 26-31) if the law is in any way compromised, let alone abrogated. Venice will lose status in the international community and, worse, trade (by which she thrives) will suffer. Armed thus with the law, as he and so far everyone else believes, and armed too with this political and commercial advantage, Shylock remains adamant in his suit.

He even believes he has morality on his side. He has pledged an oath, an "oath to heaven." (IV, i, 228) The slave-owning Christians, moreover, have given him a further moral advantage. In reply to the Duke's admonition for mercy, Shylock responds, "What judgement shall I dread, doing no wrong?" (89) He then draws a parallel between his ownership of a piece of Antonio and their ownership of whole human beings, whom "like your asses, and your dogs and mules, / You use in abject and in slavish parts, / Because you bought them." (91-3) So he concludes: "The pound of flesh which I demand of him / Is dearly bought as mine, and I will have it." (99-100)

Impasse—or so it seems. The Duke has sent to Dr. Bellario in Padua, the seat of juristic learning in Italy and throughout the Western world, for assistance in the case. But even before Portia enters as the good doctor's emissary, we get a clue as to the outcome of events when Bassanio tries to cheer Antonio up:

what, man, courage yet!
The Jew shall have my flesh, blood, bones, and all,
Ere thou shalt lose for me one drop of blood.

(IV, i, 111-13)

Why have audiences, both on the stage and off, failed to see in these lines a solution to the dilemma? Why hasn'T Shylock, astute as he is, foreseen his undoing? The answers are, of course, both legal and dramatic. Legally, one naturally assumes that Shylock is entitled to take his forfeiture along with everything else necessary (implied though not specified) to exact it. Dramatically, one is caught up—as we are meant to be—in the emotional tension that develops during the scene—until Portia springs Antonio loose by what many have called a legal "trick."⁴ But Portia's device is much more than a trick, and it must be understood in its full dramatic context.

It is irrelevant, I believe, that Portia, like everyone else in the scene, is biased against Shylock. Never mind that she is wife to Bassanio, for whom Antonio entered into the bond in the first place. Never mind that it is with her money that Bassanio offers to repay Shylock for the loan. She comes in disguise—impenetrable disguise by Elizabethan stage convention—as Balthazar, a young law clerk wise beyond his years. Hence, she assumes and is credited with an air of proper impartiality; she fails even to distinguish between merchant and Jew, despite their different attire and accoutrements. (IV,i,176) Their identities made known, her strategy begins, and it is of the utmost importance to recognize and follow that strategy from start to finish.

She begins by establishing certain facts: first, that Venetian law cannot "impugn" Shylock or deny his suit; (177-79) secondly, that Antonio "confesses" the bond. Later, it will emerge that the state can—and certainly does—impugn Shylock as he proceeds against Antonio, but that is not the point here. The point now, as Portia puts it to Shylock, is that he must "be merciful." (182) I submit that this is the burden not only of her argument and the speech that follows, the famous "quality of mercy" speech, but of the whole scene and by extension much of the play, certainly of the last two acts. If The Merchant of Venice is about anything—and it is about many things—it is surely very much about mercy, but mercy in the context of justice. That is why Portia acts as she does. It is not that she wants to give Shylock enough rope to hang himself—literally, where Graziano is concerned—but that she wants to establish the right relation between justice and mercy: mercy in the context of justice. For without that context—without justice—mercy is empty, meaningless. It turns into sentimentality and becomes counterproductive, resulting in injustice. Fully to understand and value mercy, we need first of all to understand and grasp justice in all its rigor.

Shylock is impervious to Portia's exhortations. He "crave[s] the law," (206) and nothing but the law. I think it is a mistake, nevertheless, to see here an allegory of Old Testament law versus New Testament mercy, which some interpreters have claimed.⁵ Mercy abounds in the Old Testament, as any reader of Genesis—even Shylock, who knows his Pentateuch—should realize. If, as Christians believe, the New Testament fulfills the Old, then one is not discarded in favor of the other; both are retained, one providing the context for the other. Thus justice and mercy go together. Or, in the words of the Hebrew Bible: "[W]hat doth the Lord require of you, but to do justly, and to love mercy, and to walk humbly with thy God?" (Micah 6:8).

This is not only the moral point behind Portia's speech on the quality of mercy, it is also the dramatic point of her subsequent behavior. She gives Shylock every opportunity to relent—and take treble the money for his pains. (234) She urges him at least to show a modicum of compassion and have a surgeon close at hand. (257) She does all this while at the same time agreeing to the legality of the bond and the apparent justice of Shylock's suit: mercy in the context of justice. But Shylock doesn'T get it. He is relentless in his pursuit of plain "justice," as he conceives it, though we recognize it rather as the kind of "wild justice" Francis Bacon described in his essay, "On Revenge."

It is only now that Portia springs her trap. And it is here that lawyers become enmeshed in arguments that lie quite outside or apart from the dramatic context. If, at first, the law seems to allow the forfeit of a pound of flesh, and the court awards it, (300) "no jot of blood" can go with it. (306) Moreover, Shylock in cutting off the pound of flesh must do so precisely; he must cut no more or less than "a just pound." (327) These may seem like technicalities, but worse follows for Shylock. Moments later he stands accused and clearly guilty of the attempted murder of a Venetian citizen by an alien. For this crime the penalty is death and confiscation of all the criminal's worldly goods. (347-63) A second "Daniel come to judgment" (223) is Portia indeed, or so Graziano maintains. (333)

But Graziano is a little ahead of the action. As in the foregoing dialogue, where Portia was careful to establish the context of justice first, here she establishes a similar context. Justice first, then mercy. Portia's eloquent speech on the quality of mercy has not fallen entirely on deaf ears. Showing spontaneous charity, the Duke pardons Shylock's life before he begs it; further, he proposes that half of Shylock's estate owed the state become merely a fine, if Shylock shows appropriate humility. (376-77) But instead of "humbleness," (372) Shylock cries out in defiance borne of despair:

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.

(374-77)

Now, it is Antonio's turn to show mercy, and he does—at least in Elizabethan terms. And this is where the scene becomes highly problematical for today's post-Holocaust audiences. One of the conditions that Antonio imposes for allowing Shylock to retain half his fortune—the half owing to the state—is that the Jew must convert to Christianity. (387) In this stipulation he is immediately backed up by the Duke, who threatens to revoke his pardon otherwise. (391-92) Harsh mercy though it must seem, it is mercy nonetheless, certainly as Elizabethans saw it. And it is framed in the context of a still harsher justice. Why else would Shakespeare have Shylock then agree to the terms, however grudgingly or reluctantly? In his reluctance, he is like Angelo in Measure for Measure or Bertram in All's Well That Ends Well, who are also the recipients—perhaps un-merited recipients—of mercy in the context of justice. Perhaps that is why a few critics, like W. H. Auden, have regarded The Merchant of Venice as another of Shakespeare's "problem comedies."

When he directed The Merchant of Venice in 1978 and 1981, first with Patrick Stewart and then with David Suchet as Shylock, John Barton said that however different the productions turned out to be—and they were quite different—all three men agreed that Shakespeare portrayed Shylock as a bad Jew and a bad human being. They insisted, nevertheless, that the play was not anti-Semitic.⁶ We can probably argue the issue of anti-semitism endlessly, but there seems little question that Shylock is exactly as they say: a bad Jew and a bad human being. What professing Jew, such as Shylock pretends to be, would agree to such terms to save his life and fortune? The rabbis say that for the sake of life you may violate any of the more than 600 commandments in the Bible—except one, that prohibiting the desecration of God. By disavowing his religion, Shylock violates that commandment. (Exodus 20:3) By murderously lusting after vengeance, he shows himself, moreover, to be both a bad Jew and a bad human being, violating yet another commandment, "Thou shalt not kill." (Exodus 20:13)

Perhaps these lead us away from the play as Shakespeare and his audiences would have understood it. For them, this was a comedy and Shylock the villain, with roots not only in stage Jews from which Marlowe's Barabas also derived, but also in the pantalone of the commedia dell'Arte. Elizabethans loved to see the biter bitten, the tables turned on the scheming machiavel. This happens quite ruthlessly in Marlowe's Jew of Malta, much less so in Shakespeare's Merchant of Venice. Although Act IV provides the major trial scene in Shakespeare's play, it is by no means the only one. Many trials occur, such as those in Acts II and III involving the caskets, and later on in Act V involving the rings Portia and Nerissa have given their husbands. Of the casket scenes, little need be said: the true character of the choosers emerges clearly enough through their choices, and I heartily agree with Lawrence Danson⁷ and others who reject the view that Portia unfairly helps Bassanio choose correctly. Yes, the song sung while he deliberates has several lines that rhyme with * "lead," (HI,ii,62-65) and neither Morocco nor Arragon is so privileged. But Bassanio is after all somewhat dense; as we've seen, he misses an important clue he himself verbalizes in the trial scene, and in any case Portia disavows the opportunity to instruct her lover in the right choice and thus violate her oath. (III,ii,10-11) Perhaps the play undercuts these considerations in some ways—for the play is full of inconsistencies and contradictions, as Norman Rabkin has shown. But in the theater, we are hardly mindful of them.⁸ Bassanio is the romantic hero and Portia the beautiful and clever heroine, who yet has one more lesson to teach before the play is over, one that neither her husband nor his friend Graziano is apt to forget. In Poethics, Richard Weisberg has analyzed the significance of the ring business in Act V more than adequately, as several others have also done, pointing out that too often the play's endgame is overlooked.⁹ In some nineteenth-century productions it was in fact entirely omitted. I do not mean to slight it here at all, but I shall simply conclude by trying to place the action of Act V in a related context of justice and mercy.

Feminist critics must love what happens there. Maybe they are not overjoyed by the dialogue between Lorenzo and Jessica, who tends to become silent, if not stupefied, during or by her husband's long discourse on the music of the spheres. (V,i,60-88) But when the quarrel breaks out between Graziano and Nerissa over the missing ring and Portia joins in, those who champion women's rights begin to sit up and eventually cheer. For Portia soon has Bassanio "on the hip"—figuratively here, whatever happens later. She catches him out and has him dead to rights. He has foresworn his promise never to part with his wedding ring, and sure enough he has done so. Therefore, she will feel just as free to behave similarly and warns him that she will be as "liberal" as he has been. (V,i,226) It is simple justice, tit for tat. Once again, Antonio intervenes for the sake of mercy and pledges his soul this time as Bassanio's surety that her husband will never more break faith. (249-53) At this point, Portia and Nerissa return the rings to their husbands, permitting them momentarily to feel that they have been made cuckolds and to suffer consternation accordingly. Both Bassanio and Graziano thus pay a penalty, as justice exacts its due. Mercy follows, however, when Portia reveals the truth of events, with promises to answer all her husband's "inter'gatories." (296-9)

So the play ends, with Graziano punning bawdily on keeping Nerissa's ring. Is it a happy ending? It might seem so, but then there is Antonio, a kind of seventh wheel, quietly following the newlyweds—as the ending is sometimes staged—into Portia's house. And there is Jessica, who has not uttered a word since "I am never merry when I hear sweet music." (69) The play is assuredly a comedy, but what kind of comedy? Can its myriad conflicts successfully be resolved in performance? Should they be? Questions to be asked, perhaps, but we may never find definitive answers. Others abide our question, as Milton said, but Shakespeare remains "free." In the performance by the Peter Royston Players, taking a cue from Peter Alscher's notes, the play ended with some lines from the third scene of the play. Shylock's plea to Antonio, "I would be friends with you, and have your love," (I,iii,138) resonated here, reminding us of a theme that is often embedded in the play but scarcely developed—probably because it is short-circuited by Jessica's elopement with Lorenzo. That blow to Shylock and everything he holds dear really determines the viciousness of his vengeance, and the end of his "kindness." (I,iii,143) Like Jonathan Miller's 1970 production at London's National Theatre, which ended with an offstage cantor intoning the Mourner's Kaddish, we were therefore left feeling distinctly uncomfortable in what is, genetically at least, supposed to be a happy ending. But Shakespeare seldorn allows us to remain comfortable in what is, generically at least, supposed to be a happy ending. But Shakespeare seldom allows us to remain comfortable for long, even in the happiest of his comedies. The Merchant of Venice is no exception, and these endings, manipulated extra-textually or otherwise, stress the point.

Notes

* All cites to the play here are to Jay Halio, ed., The Merchant of Venice (Oxford: Oxford University Press, forthcoming 1993).

¹See, e.g., George W. Keeton, Shakespeare's Legal and Political Background (London: Pitman, 1967), pp. 151-76; O. Hood Phillips, Shakespeare and the Lawyers (London: Methuen, 1972), pp. 84-90.

² Keeton, supra note at 165-76.

³ Phillips, supra note at 84-85.

⁴See, e.g. Lawrence Danson, The Harmonies of "The Merchant of Venice" (New Haven: Yale University Press, 1978), p. 118

⁵See Norman Rabkin, "Meaning and The Merchant of Venice," Shakespeare and the Problem of Meaning (Chicago: University of Chicago Press, 1981), p. 9.

⁶ John Barton, Playing Shakespeare (London: Methuen, 1984), p. 169.

⁷ Danson, supra note 4 at 117-18.

⁸ Rabkin, supra note 5 at 4-19, 27-30. Compare Danson, supra note 4 at 134-36.

⁹ Richard Weisberg, Poethics (New York: Columbia University Press, 1993), pp. 100-4.