Sec. 101. Commutation of punishment.

"Duke. That thou shalt see the difference of our spirit, I pardon thee thy life, before thou ask it:

For half thy wealth, it is Antonio's;

The other half comes to the general state,
Which humbleness may drive unto a fine."1

A pardon is an act of grace, from the power intrusted with the execution of the laws, which exempts the one upon whom it is bestowed from the punishment inflicted for the crime committed. The pardon, here, unasked, of the life of Shylock, forfeited by the law, for the offense he had committed in conniving at the life of a human being, is a familiar form of extending the pardoning power. As a pardon does not generally affect the rights. of any other whose status would be affected thereby, if it operated upon other than the criminal, the Duke recognizes that the right of Antonio to the half of the culprit's property shall not be affected by the pardon.

The Duke's promise to Shylock that "humbleness" might "drive into a fine" the forfeiture of the other half of his estate, is, virtually, a promise of a commutation of his punishment, in this regard, by changing the punishment of a forfeiture of half of his estate, into a less severe one, by way of a fine.

does the dejected picture of the poor old Jew, denied his supposed legal rights for improper reasons. Such a judgment is not regarded with rapt admiration by those who appreciate the majesty of the law, nor is the jurist pronouncing such an opinion surrounded by a legal halo, but as the recipient of an erroneous judgment and one whose cause was wrecked upon the shoals of judicial shipwreck, the Jew is regarded with commiseration, rather than the contempt that the laity heap upon him.

1 Merchant of Venice, Act IV, Scene I.

4 Bl. Com. 400; 1 Park, Cr. Cas. 47.

10 Johns. (N. Y.) 232.

'Bouvier's Law Dictionary.

Sec. 102. Conveyance in use.

"Ant. 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 favor,
He presently become a Christian;

The other that he do record a gift,

Here in the court of all he dies possess'd,
Unto his son Lorenzo, and his daughter."

A use, in English law, was a confidence reposed in the tenant of land that he should dispose of the land according to the intention of the cestui que use, or him to whose use it was granted, and suffer him to take the profits. The use was the benefit or profit of the land held by the trus tee for the benefit of the beneficiary. He to whose use or benefit the trust was intended was called the cestui que use. Before the Statute of Uses, in the reign of Henry VIII, uses were customarily used for the purpose of making devises of land. By this statute the use was transferred into possession, or the possession to the use, and the use was then called a vested use. After the statute, as before, a land owner could still make a conveyance to use, and the use could change from one to another, as before the statute, but the statute had the effect of vesting the legal estate and giving full effect to the transfer or disposition."

This means of conveying the half of his estate, therefore, proposed by Antonio, according to the English law, was a perfectly proper conveyance by which half his estate could be devised, and the deed of gift, as a further exac

6

1 Merchant of Venice, Act IV, Scene I.

Tiedeman, R. P. (3d Ed.) Ch. Uses and Trusts.

IV Reeve's History Eng. Law, pp. 363, 366.

27 Henry VIII, c. 10.

'IV Reeve's History Eng. Law, p. 366.

Ante idem.

tion, by means of the gift of land liberum maritagium,1 would furnish a further legal safeguard for the vesting of the estate in the daughter and son in law of the Jew.

Sec. 103. Deed of gift.

"Duke. He shall do this; or else I do recant

The pardon that I late pronounced here.

Por. Art thou contented, Jew; what dos't thou say?
Shy. I am content.

Por. Clerk, draw a deed of gift.

Shy. I pray you, give me leave to go from hence;
I am not well; send the deed after me,

And I will sign it."2

The exaction of the deed of gift, as the price of Shylock's freedom from punishment, comes dangerously near to duress, but the validity of the deed on this ground would not be apt to be presented, so long as the withdrawal of the pardon threatened the grantor in the deed.

A deed is generally defined to be any writing, containing a contract, sealed and delivered by the parties thereto.3 A deed of gift, unlike a deed of "grant, bargain and sale," is based only on a good consideration, such as love and affection, as distinguished from a valuable consideration, such as money or property. At an early period in English history, land was conveyed without a writing, by overt acts and ceremonies, taking the place of formal writing, but by the statute of frauds and perjuries," any contract or sale of lands was required to be in writing, signed by the grantor.

Deeds or writings, in English law, date principally from the Norman Conquest. Under the reign of Henry III, there were various deeds of gift in vogue, all of which are

IV Reeves' History Eng. Law, p. 90.

2 Merchant of Venice, Act IV, Scene I.

'Tiedeman, R. P. (3d Ed.) Sec. 854; 2 Washburn, R. P. 553. 'Ante idem.

29 Chas. II, Ch. 3.

1 Reeves' History Eng. Law, p. 336.

described by Bracton,' the most common of these being called deeds of gift libera et pura donatio and those sub conditione.

The Poet shows a familiarity with the various kinds of deeds of gift, for as Antonio had exacted that the deed should be "unto his son Lorenzo and his daughter," it would come within the class of deeds made on or after the espousal, by some friend or relative of the bride, whereby the land was given to them jointly, with such condition that although the wife should have no heirs, the husband would possess it, per legem Angliae.2

1 Bracton, 10b; II Reeve's History Eng. Law, p. 83.

2 Bracton, 22b; II Reeve's History Eng. Law, p. 91.

In delivering this deed of gift, to Lorenzo, Nerissa said: "There do I give to you and Jessica, From the rich Jew, a special deed of gift, After his death of all, he dies possess'd of." (Merchant of Venice, Act IV, Scene I.)

"Orl. The courtesy of nations allows you my better, in that you are the first-born; but the same tradition takes not away my blood, were there twenty brothers betwixt us; I have as much of my father in me as you; albeit, I confess, your coming before me is nearer to his reverence."i

The law of primogeniture or the right of the first-born under the English law is here referred to, as inconsistent with the natural rights of the younger child. Under the law as it existed in England, the oldest son acquired title to the parent's lands, in preference to the younger children. This is noted, by Orlando, as a legal advantage only, for he vaunts that he has "as much of my father in me as you;" that the arrival first would not affect his blood and that he is, in other respects his equal, if not his superior.

2

As You Like It, Act I, Scene I.

2 This unjust distinction has been very generally abolished in the United States. Bouvier's Law Dictionary.

Clifford asks Edward, in 3' Henry VI: "Clif. And reason, too; Who should succeed the father, but the son?" (Act II, Scene II.)