suggested the investment of the creditor by law with the unnatural power which we find him enjoying. That power, it is far more reasonable 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 person. 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 recognition, 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 unlawful 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 principle 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 overthrow.
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 representative of the methods of early law, as to constitute one of the
