372 THE POPULAR SCIENCE MONTHLY. 



suggested the investment of the creditor by law with the unnatural 

 power which we find him enjoying. That power, it is far more reason- 

 able to suppose indeed, the supposition affords the only plausible 

 explanation of it was originally claimed by the creditor as Shylock 

 claimed his pound of flesh, only by virtue of the condition of his 

 bond ; only through the debtor's express concession of it at the time 

 of incurring the debt. In the history of debtor and creditor, back of 

 all life-forfeiting laws there must have been life-forfeiting contracts ; 

 the former being the outgrowth of the latter. That such stipulations 

 after becoming a customary clause in contracts, would have a tendency 

 to crystallize into law, is aptly illustrated in the law of Scotland. It is 

 shown by Lord Kaims that such has been precisely the history of 

 imprisonment for debt in that country. Originally unknown, it was 

 at first introduced by the debtor's agreement that, in case of default, 

 process might issue against his ]Derson. The courts recognized the 

 validity of such agreements, enforced them, and ultimately fell into 

 the habit of allowing the remedy, without inquiring whether it was 

 authorized by the contract or not. 



Having thus noted the essentially historical character of the life- 

 pledging contract, it is to be remarked that its legal recognition carries 

 us back to the time when the right of contract was comparatively free 

 from limitations as to its subject-matter. Under matured systems of 

 jurisprudence a great variety of agreements are denied legal recogni- 

 tion, on the ground that their performance would involve a violation 

 of law, or would be incompatible with good morals or public policy. 

 But the catalogue of agreements thus condemned was originally very 

 meager. Though it is probable that from the earliest times the law 

 may have refused to enforce a few contracts of a grossly criminal 

 character, it was only gradually that the broad principle was evolved 

 that one can not legally obligate himself to the performance of an un- 

 lawful or immoral act, or an act inconsistent with public policy. 



The story of the bond for a pound of flesh not only speaks to us, 

 through the atrociousness of the contract, which was held valid, of 

 the former feebleness and obscurity of that principle ; it also affords 

 an example of the curious indirection through which at first the prin- 

 ciple usually ventured to assert itself. For, in all its forms, the story 

 points to a society or a stage of development in which the law, while 

 conceding the validity of the life-pledging contract, regarded it with 

 great disfavor, and, in the interest of advanced views of morality and 

 public policy, was seeking its overthroAv. 



Many versions, including Shakespeare's, represent the judge as 

 affirming the validity of the bond, and the right of the creditor to take 

 the stipulated flesh, and at the same time as declaring a forfeiture of 

 all his estate for simply proposing so to do ; a laughable incongruity, 

 so utterly repugnant to existing legal views, and so strikingly repre- 

 sentative of the methods of early law, as to constitute one of the 



