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Full text of "Commentaries on the law in Shakespeare"








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Commentaries on the Law 



IN 



SHAKESPEARE 



^/ 



AVith Explanations of the Legal Terms used in the Plays, 

Poems and Sonnets, and Discussions of the 

Criminal Types Presented. 



BY 



EDW. J. WHITE 

Author of "Mines and Mining Remedies," "Personal Injuries in 

Mines," "Personal Injuries on Railroads," Editor "Third 

Edition Tiedeman on Real Property," etc. 



THE F. H. THOMAS LAW BOOK CO. 

ST. LOUIS, MO. 

1911 






Copyright, 1911 

by 

EDWARD J. WHITE 



Nixon-Jones Printing C«. 
St. Louis, Mo. 



(C;GI.A27S<KS3 C^ 



What folly I commit, I dedicate to you." 

Troilus and Cressida, Act III.. Scene Q. 



To Mary A. Wadsworth, 

of Columbia, Missouri, 

a most profound student of Shakespeare, Shakespearian lecturer 
and author of "Shakespeare and Prayer," whose friend- 
ship and encouragement prompted the collabora- 
tion of these Commentaries, the work is 
respectfully inscribed, with the 
Author's admiration and 
regard. 



COMMENTARIES ON THE LAW IN SHAKESPEARE. 



CHAPTER I. 

"THE TEMPEST." 

Sec. 1. Confiscation of property — Doing homage. 

2. Witness' oath. 

3. The marriage contract. 

CHAPTER II. 

"TWO GENTLEMEN OF VERONA." 

Sec. 4. Judgment unreversed — Tendered. 

5. Setting up new plea — Repealing former. 



CHAPTER III. 

"MERRY WIVES OF WINDSOR." 

Sec. 6. Contempt of Court — Star-Chamber. — 

7. Compromising slanders. 

8. Right of Egress and Regress. 

9. Fee-Simple, Fine and Recovery — Waste. 



CHAPTER IV. 

"TWELFTH NIGHT." 

Sec. 10. Exceptions — Imp'-oper conduct. 

11. Proof — Admission against interest. 

12. Misprison. 

13. Sheriff's post. 

14. Misdemeanors. 

15. Grand-jury. 

16. Windy side of the Law. 

17. Action of battery. 

18. Party plaintiff. 



(iii) 



IV THE LAW IN SHAKESPEARE. 



CHAPTER V. 

"MEASURE FOR MEASURE." 

Sec. 19. Termes of the Law. 

20. Dead Laws. 

21. Custom shaping Laws. 

22. Fraility of all laws — Especially jury system. 

23. Action of Slander. 

24. Prostitution before the Law. 

25. Sentence. 

26. Plea for Pardon. 

27. Punishment for Seduction, by Venetian Law. 

28. The severe Judge. 

29. Common Law marriage contract. 

30. Plea for Justice. 

31. The Equality of Justice. 

32. The Law a gazing-stock, when not enforced. 

33. Confession of guilt. 

34. Loyalty of Attorney. 

35. Intent, distinguished from Wrongful Act. 

36. Breach of Promise. 

37. Punishment by marriage to prostitute. 



CHAPTER VI. 

"MUCH ADO ABOUT NOTHING." 

Sec. 38. Endowment. 

39. Breach of the Peace. 

40. Punishment by Pressing to Death. 

41. "Statutes of the Streets." 

42. Qualifications of Constable. 

43. Duties of the Nightwatch. 

44. False Imprisonment. 

45. Preliminary Hearing. 

46. Examination before Magistrate. 

47. Householder. 

48. Preliminary Examination for Burglary. 

49. Trial 'by Manly Combat. 

50. Count — Extra-Judicial Confession. 

51. False Testimony. 

52. The Scales of Justice. 



THE LAW IN SHAKESPEARE. 

CHAPTER VII. 

"MIDSUMMER NIGHT'S DREAM." 

Sec. 53. Jurisdiction of Athenian Laws. 

54. Parent and Child, under Greek Law. 

55. Parent's right of Infanticide, by Athenian Law. 

56. Pleading for Fee. 

57. Parent's Consent to Child's Marriage. 

58. Limitation of Municipal Law. 

CHAPTER VIII. 

"LOVE'S LABOURS LOST." 

sec. 59. Term — Subscribing to Oath. 

60. Decrees. 

61. Penalty of the Law. 

62. Attainder. 

63. Taken "With the Manner." 

64. "In Manner and Form." 

65. Venue and Offense Charged. 

66. Inheritance — Dowry. 

67. Duties of Solicitor. 

68. Surety. 

69. Title. 

70. Common — Severalty. 

71. Crime of Perjury. 

72. Denial of Receipt. 

73. Specialties — Acquittances. 

74. Apparitors — Duties of. 

75. Enfranchising one. 

76. Treason. 

77. "Quillets" of the Law. 

-caps." 

CHAPTER IX. 

"THE MERCHANT OF VENICE." 

Sec. 79. Warranty. 

80. Breach of Bond — Penalty for. 

81. Sealing written instrument. 

82. Extorting evidence upon the Rack. 



VI THE LAW IN SHAKESPEARE. 



83. 


Usurer. 


84. 


Plea of Forfeiture. 


85. 


"The course of T,a,w." 


86. 


Bond. 


87. 


Standing for Law. 


88. 


Seal. 


89. 


Moiety. 


90. 


Charter. 


91. 


The Issue before the Court. 


92. 


Nature of Shylock's suit. 


93. 


Portia's plea for Mercy. 


94. 


Antonio's confession of the bond 


95. 


Plea for judgment. 


96. 


Justice of Shylock's plea. 


97. 


"I crave the Law." 


98. 


Tender in open Court. 


99. 


Effect of legal precedent. 


100. 


Portia's judgment on the bond. 


101. 


Commutation of punishment. 


102. 


Conveyance in use. 


103. 


Deed of gift. 



CHAPTER X. 

"AS YOU LIKE IT." 

Sec. 104. Primogeniture. 

105. Bequest. 

106. Heir. 

107. Testament. 

108. "Be It Known By These Presents." 

109. Bankrupt. 

110. Forfeiture of land. 

111. Writ Extendi facias. 

112. Vacations of Court. 

113. Jointure. 

114 Acts by Attorneys. 
115. Examining Justice. 

CHAPTER XI. 

"ALL'S WELL THAT ENDS WELL." 

Sec. 116. Ward's — Heirs of fortune under King. 

117. Giving testimony against one — Impeachment. 

118. Premises. 



THE LAW IN SHAKESPEARE. ▼!! 

119. Theft. 

120. Descent. 

121. Lawful Act. 

122. Unlawful Intents. 

123. Entailment— Remainders. 

124. Evidence. 

125. Divorce. 

CHAPTER XII. 

"THE TAMING OF THE SHREW." 

Sec. 126. Third-borow. 

127. Court-leet, oi; Manor Court. 

128. Adversaries at Law. 

129. Compounding crime. 

130. Servant assaulting master. 

131. Punishment by the Pillory. 

132. Settlement by way of Assurance. 

133. Chattels. 

134. "Packing" a witness. 

CHAPTER XIII. 

"THE WINTER'S TALE." 

Sec. 135. Time overthrows Law and Custom. 

136. Trespass. 

137. Negligence distinguished from wilfulness. 

138. Prisoner's fees. 

139. Not guilty. 

140. King's prerogative. 

141. Child born in prison. 

142. Commitment to jail. 

143. Arraignment of Hermione. 

144. Surmises, not proof of guilt. 

145. Indictment. 

146. Torture by "boiling in oil". 

147. Lawyer's points. 

148. Arrested in act, or, "Taken with the Manner." 

149. Witchcraft and practice of magical arts. 

CHAPTER XIV. 

"COMEDY OF ERRORS." 

Sec. 150. Earnest to bind bargain. 
151. Attachment. 



viii THE LAW IN SHAKESPEARE. 

152. Arrest. 

153. Breach of Promise. 

154. Arrest upon mesne process — Debtor's dungeon. 

155. Action "on the case." 

156. Subornation. 

157. Prisoner. 



CHAPTER XV. 

"MACBETH." 

Sec. 158. Estate. 

159. Execution. 

160. Instigation of Macbeth's crime. 

161. Agent. 

162. Trust, from fiduciary relation. 

163. Murder. 

164. Malice. 

165. Copyhold. 

166. Single ownership. 

CHAPTER XVI. 

"KING JOHN." 

Sec. 167. Controversy — Judgment on. 

168. Descent to eldest son. 

169. Bastard's right to inheritance. 

170. Child begot when father not infra quatuor maria. 

171. Legitimacy of child born during lawful wedlock. 

172. Testamentary disposition, disinheriting bastard. 

173. Landed 'Squire. 

174. Seduction. 

175. Arbitration. 

176. Usurpation — Denial of rights. 

177. Equity. 

178. Canon of the Law. 

179. Abstract and Brief. 

180. Indenture. 

181. Rape. 

182. Interrogatories. 

183. Tithes— Toll. 

184. Laws' redress of wrongs. 

185. Keeping the Peace. 

186. Source of Sovereign power. 



THE LAW IN SHAKESPEARE. ix 



CHAPTER XVII. 

"KING RICHARD THE SECOND." 

Sec. 187. Appellant. 

188. Accuser and accused. 

189. Impeachment. 

190. Deposing, according to Law. 

191. Trial by battle. 

192. Party-verdict. 

193. Reversion. 

194. Waste upon real estate. 

195. Landlord. 

196. Lease — Tenement. 

197. Possessed. 

198. Royalties. 

199. Attorneys-General. 

200. Letters-patent. 

201. Seize. 

202. Fine. 

203. Repeal. 

204. Covenant. 

205. Breaking Laws. 

206. Livery. 

207. Attorneys. 

208. Executors. 

209. Failure to speak, in criminal case — Standing mute. 

210. Signories. 

211. Under age. 

212. Day of trial. 

213. Answer. 

214. Crimes. 

215. Manors. 

216. Conspiracy. 

CHAPTER XVIII. 

"FIRST PART OF KING HENRY THE FOURTH." 

Sec. 217. King's right to prisoners, under military Law. 

218. "The Law's Delay." 

219. "Peaching" on accomplice. 

220. Righting Grand-jurors. 

221. Audi alteravi partem. 



X THE LAW IN SHAKESPEARE. 

222. Term of apprentice. 

223. Arrest upon "hue and cry." 

224. Rob'bery. 

225. Tripartite agreements. 

226. Enfoeffment. 

227. Alien. 

228. Factor — Broker. 

229. Maiming. 

230. Reprisal. 

231. Counterfeit. 

232. Death by Judicial Sentence. 

CHAPTER XIX. 

"SECOND PART OF KING HENRY THE FOURTH." 

233. Accomplices. 

234. Assurance — Security. 

235. Punishment by the stocks. 

236. Infamy. 

237. Laws of Land-service. 

238. Action. 

239. Eating flesh contrary to law. 

240. "Faitors." 

241. Inns of Court. 

242. A "rotten case" — No Counsel in. 

243. Riot. 

244. "A friend i' the Court." 

245. Committment for Contempt of Court. 

246. Law no respecter of persons. 

247. Falstaff's Committment to prison. 

CHAPTER XX. 

"KING HENRY THE FIFTH." 

Sec. 248. Seditious and insurrectionary bills. 

249. Bills against Ecclesiastics. 

250. Henry the Fifth's favor toward Ecclesiastics. 

251. Salic Law and Henry the Fifth's Claim to France. 

252. Lex terra saliea explained. 

253. Ancestor. 

254. Impounding strays. 

255. Departments of Government working harmoniously. 

256. Adultery. 



THE LAW IN SHAKESPEARE. XI 

257. Capital crimes. 

258. Motive for crime. 

259. Money paid in earnest. 

260. Divesting property rights. 

261. Respondeat superior not applicable to King aad subject. 

262. Bearing testimony. 

263. Martial Law, 

CHAPTER XXI. 

"FIRST PART OF KING HENRY THE SIXTH." 

Sec. 264. Homicide. 

265. Distraining property. 

266. Proclamation. 

267. Truant in the Law. 

268. Brawl. 

269. Outlaw. 

270. Contract. 

271. Partners. 

272. Fighting in King's palace, or presence. 

273. Quid pro quo. 

274. Condemned woman's privilege of pregaancy. 

275. Compromise. 

CHAPTER XXII. 

"SECOND PART OF KING HENRY THE SIXTH." 

Sec. 276. Articles of agreement. 

277. Bargain and sale. 

278. Margery Jourdemayn's case. 

279. Pursuivant. 

280. Bondman. 

281. Open to the Law. 

282. "Rigour of the Law." 

283. To apprehend in the fact. 

284. York's title to the Crown of England. 

285. Duchess' of Gloster's sentence. 

286. Justification for one condemned by Law. 

287. Contrary to form of Law. 

288. Levying sums of money. 

289. Taking bribes. 

290. Taxes — Restitution. 

291. Bearing false witness — Perjury. 



Xll THE LAW IN SHAKESPEARE. 

292. Executioner. 

293. Land held in common. 

294. Sales of meat during Lent. 

295. Source of Law — Biting statutes. 

296. Jurisdiction regal. 

297. Benefit of Clergy. 

298. Determining causes. 

299. Maiden- rent. 

300. Bail. 

CHAPTER XXIII. 

"THIRD PART OF KING HENRY THE SIXTH." 

Sec. 301. No inter-regnum, under English Law. 

302. Title by confirmation. 

303. Disinheriting heir. 

304. Estate-tail, upon condition. 

305. Acts of Parliament. 

306. Lady Grey's suit for husband's lands. 

307. Concubine. 

308. Richard the Third, an em'bryonic criminal. 

309. Richard's morbid vanity. 

310. Crime the basis of Richard's character. 

311. Elizabeth's plea of "Sanctuary." 

CHAPTER XXIV. 

"KING RICHARD THE THIRD." 

Sec. 312. Richard's crimes prompted by his isolation. 

313. Law of God and man. 

314. Acquittal of the accused. 

315. Accessory before the fact. 

316. Avouch. 

317. Disputing with Lunatic. 

318. Clothing villany with "holy writ." 

319. "Warrant no protection against murder. 

320. Guilty conscience. 

321. Reward. 

322. Death without lawful conviction. 

323. Divine Law against murder. 

324. Benefit of "Sanctuary." 

325. Moveables. 

326. Bigamy. 

327. Levitical Law against niece marrying uncle. 



THE LAW IN SHAKESPEARE. xiii 

328. Richard the Third's inherited criminal instinct. 

329. Demise. 

330. Corrupted Justice. 

331. Swords as Laws, under Richard's reign. 

CHAPTER XXV. 

"KING HENRY THE EIGHTH." 

Sec. 332. Privity. 

333. Wasting manors in military preparations. 

334. Buckingham's trial for treason. 

335. "Come into Court." 

336. Pleading cause. 

337. Session of Court. 

338. Challenging prejudiced Judge. 

339. Retainers. 

340. Appearance in Court. 

341. Under "hand and seal." 

342. Motion to dismiss appeal. 

343. Dilatory pleas. 

344. Adjournment of Court. 

345. Trial at Law. 

346. Inventory. 

347. Commission for oflBce. 

348. Writ of Praemunire. 

349. Decree of divorce from Katherine. 

350. Simony. 

351. Purging one's self of guilt. 

352. Verdict based on perjury. 

353. Accusing one, "face to face." 

354. Accusing Counsellor. 

355. Acting as both Judge and Juror. 

356. Crime of heresy. 

357. Appeal by King's ring. 

CHAPTER XXVI. 

"TROILUS AND CRESSIDA." 

Sec. 358. Ravishment. 

359. Per se. 

360. Justice residing between right and wrong. 

361. Impressment for military service. 

362. Attestation. 



XIV THE LAW IN SHAKESPEARE. 

363. Damage and indemnity of war. 

364. Law's protection of marital relation. 

365. A "privileged man." 

366. Underwriting one. 

367. A kiss in fee farm. 

368. Execution of contract by parties "interchangeably." 

369. Right warring with right. 

370. Consanguinity. 

371. Rejoindures. 

372. Attestation by "sight and hearing." 

CHAPTER XXVII. 

"TIMON OF ATHENS." 

Sec. 373. Pawn. 

374. Death penalty for homicide. 

375. Joint and corporate action. 

376. Hereditary taints. 

377. Pity the virtue of Law. 

378. Plunging into Law. 

379. Defending manslaughter. 

380. Killing in self-defense. 

381. Felon in irons. 

382. "Law is strict." 

383. A cynic's view of Law — Thievery justified. 

384. Bawds not competent witnesses. 

385. Pleading false titles. 

386. The scope of Justice. 

387. Answering public Laws. 

CHAPTER XXVIII. 

"CORIOLANUS." 

Sec. 388. Piercing statutes. 

389. Manacles. 

390. Alias. 

391. Complaint. 

392. Bencher. 

393. Pleaders. 

394. Tarpeian rock. 

395. Resisting Law. 

396. Process. 

397. Death by the Wheel. 

398. Trial by Comitia. 



THE LAW IN SHAKESPEARE. XY 



CHAPTER XXIX. 

"JULIUS CAESAR." 

Sec. 399. English statutes of "Laborers and Mechanics." 

400. Idealism the basis of Brutus' crime. 

401. Cassius the typical criminal revolutionist. 

402. Cassius' suggestion of the crime. 

403. Brutus' struggle with his conscience. 

404. The people's cause, the motive for Brutus' murder. 

405. "The Law of children." 

406. "The King can do no wrong." 

407. Caesar's will. 

408. The effect of error. 

409. Antony's tribute to Brutus' character. 

CHAPTER XXX. 

"ANTONY AND CLEOPATRA." 

Sec. 410. Bourn. 

411. Leaving property in use. 

412. Title by descent and purchase, distinguished. 

413. Prorogue. 

414. Malefactor. 

415. Antony's suicide— FeZo de se. 

CHAPTER XXXI. 

"CYMBBLINE." 

Sec. 416. Election to act in given way. 

417. Advocate. 

418. Condition of wager contract. 

419. Lawyer's duty to understand case. 

420. Witness to action. 

421. Forfeiters. 

422. Frankleyn. 

423. Debtor overpassing bound. 

424. Demesne lands. 

425. Guiderius' defense of his crime. 

426. Upright Justice. 



XVI THE LAW IN SHAKESPEARE. 

CHAPTER XXXII. 

"TITUS ANDRONICUS." 

Sec. 427. Encroachment upon Prince's right. 

428. Proof of facts apparent. 

429. Ball in Criminal Case. 

430. Invoking Justice from heaven. 

431. The Goddess of Justice abandoning the Earth. 

432. Libeling the Senate. 

433. Prosecution for Contempt. 

434. Lawful killing not murder. 

CHAPTER XXXIII. 

"PERICLES, PRINCE OF TYRE." 

Sec. 435. Incest. 

436. Development of criminal instinct. 

437. Bill of Lading. 

438. Poor man's right in Law. 

439. A litigious peace. 

440. Serving clients. 

441. Applying judgment to the Judge. 

442. Modesty of Justice. 

CHAPTER XXXIV. 

"KING LEAR." 

Sec. 443. Divesting property. 

444. Entailment of estate. 

445. Reservation, in grant. 

446. Parricide. 

447. Identifying criminals by pictures. 

448. An "action-taking" knave. 

449. Crimes unwhipped by Justice. 

450. Summoners. 

451. "Whipped from tithing to tithing." 

452. Imaginary trial of Goneril. 

453. Equal rank in Trial by Battle. 



THE LAW IN SHAKESPEARE. XVii 

CHAPTER XXXV. 

"ROMEO AND JULIET." 

Sec. 454. Bond to Keep the Peace. 

455. Wife's legal status. 

456. Sale of Life Tenure. 

457. Amercement by fine. 

458. Murder to kill murderer illegally. 

459. Tybalt's death murder at Romeo's hands. 

460. No slander to speak the truth. 

461. Label appended to deed. 

462. Sale of poison contrary to Italian Law. 

463. Purging impeachment. 

CHAPTER XXXVI. 

"HAMLET, PRINCE OF DENMARK." 

Sec. 464. Law and Heraldry. 

465. Trespass vi et armis. 

466. Forgeries. 

467. Appurtenances. 

468. Detecting crime. 

469. Quietus. 

470. Fratricide. 

471. No corrupted Justice above — Evidence by interested 

party. 

472. Counselor. 

473. Pleas in Abatement. 

474. "Crowners-quest Law." 

475. Hamlet's legal comments on the skull. 

476. Hamlet's survivorship and disposal of the Crown. 

CHAPTER XXXVII. 

"OTHELLO, THE MOOR OP VENICE." 

Sec. 477. Non-suit. 

478. Duke's promise to redress Brabantio's wrong. 

479. Proof required of Desdemona's seduction. 

480. Othello's election to stand upon Desdemona's evidence. 

481. Sequestration against Desdemona. 



XViii THE LAW IN SHAKESPEARE. 

482. lago the cynic anti-pathetic criminal. 

483. Law days of Courts of Inquiry. 

484. lago's crime against Othello. 

485. Proof of guilt "beyond reasonable doubt." 

486. False indictment on suborned testimony. 

CHAPTER XXXVIII. 

"VENUS AND ADONIS." 

Sec. 487. Judge cannot right his own cause. 

488. Law-giver unable to enforce Law. 

489. Client wrecked, when attorney mute. 

490. Conveyance by seal-manual. 

491. Double penalty upon broken bond. 

492. Inheritance by next of blood. 

CHAPTER XXXIX. 

"THE RAPE OP LUCRECE." 

Sec. 493. Loving against Law and Duty. 

494. Pleading for right, in wilderness without Law. 

495. Holy human Law. 

496. Attestation by Notary. 

497. The assault upon Lucrece. 

498. Opportunity spurns Right and Law. 

499. Justice feasting, while widow weeps. 

500. Errors by opinion bred. 

501. Wronger wronged by Time. 

502. Case past help of Law. 

503. Rightful plea for Justice — Denial of. 

CHAPTER XL. 

"SONNETS." 

Sec. 504. Determination of lease. 

505. Improper to praise by hearsay. 

506. Adverse party for advocate. 

507. Trial between Eye and Heart — Jury of Heart's tenants. 

508. No cause alleged against lawful reason. 

509. Grant failing for want of consideration. 

510. Forfeiture of limited lease. 

511. Forfeiting mortgaged property. 



GENERAL OBSERVATIONS. 



In Shakespeare's multiple personalities, there is none in 
which he appears more naturally and to better advantage 
than in the role of the lawyer. If true that all dramatic 
writing is but a form of autobiography, then the immortal 
Shakespeare must, at some time in his life, have studied 
law. 

By this it must not be construed that we have 
gleaned the scattered threads of law, strewn by the master's 
hand, through the rich poetry of the plays, with any idea 
that they were written by other than the great poet, for but 
a superficial examination of the law of Shakespeare, as 
compared with the legal writings of the leading barristers 
of his age, ought to convince one that no one used merely 
to writing the cold law, could have penned the immortal 
plays of this poet ; but it is just as apparent that the poet 
learned his law from sources where it was none the less 
well known. It is also apparent that he had a natural 
inclination toward the law, for otherwise the legal com- 
parisons and terms would not have come so naturally to 
him, in expressing the emotions and giving vent to the 
imaginative flights of poetry. 

It does not follow, however, from these observations, 
that the law of the plays can furnish any basis for the 
sensationalist to build up a claim of title to the plays in 
favor of a lawyer, instead of a poet, for the law is merely 
incidental in the plaj^s, whereas, the poetry is that of the 
master poet of all time. And this suggests the propriety, 
at this time, of answering the various claims of those who 
have recently attempted to give to another than the great 
poet the honor for the production of the plays, a theme 
somewhat germane to the subject of these pages and one 
upon which there has been maintained a studious and too 

(1) 



2 THE LAW IN SHAKESPEARE. 

lengthy silence, by those who ought to refute the claims of 
such visionaries. One may feel the utmost security in the 
possession of his title, yet when claimants are continuously 
disputing his title, the law affords an adequate remedy, by 
a- proceeding to quiet the title. Such a remedy should be 
invoked against those who, without evidence to base such 
claims upon, attempt to establish that Shakespeare has 
wrongfully enjoyed the honor of the authorship of his 
plays for the past centuries. 

In considering what is sometimes called the "Shakes- 
pearian controversy," — which has occupied the attention 
of some minds for a few years, both in England and the 
United States — it is found that the question of the authen- 
ticity of the plays of Shakespeare, is mooted by those who 
doubt the ability of the poet to have produced the plays, 
displaying such richness in knowledge and culture and 
such a breadth of human wisdom, because of the early lack 
of advantages of the poet and the known mean beginning 
of his career. 

Of course such pleas are those of the special advocate, 
who attempts to discredit the testimony of credible wit- 
nesses, approved by the lapse of centuries, without ques- 
tion, by mere surmises and conjectures, not entitled to be 
ranked alongside of positive proof, in the determination, 
in an orderly manner, of any such issue. 

Were there reason for such an issue, the natural way to 
regard it, in view of the undisputed testimony of reputable 
witnesses — the men of science and literature, of the time 
of Shakespeare, who have spoken upon the subject — 
would be to receive this undisputed evidence as establish- 
ing the fact affirmed. If this were true, the poet would be 
entitled to all the more credit for having produced such 
masterpieces, considering his early advantages and lack of 
training. But the special pleader never takes such matters 
of proof, in the ordinary way, but looks for hidden, myste- 
rious circumstances, with which to overthrow otherwise 
irrefutable conclusions from established facts. 



THE LAW IN SHAKESPEARE. 3 

The multiplicity of legal terms and the accuracy of the 
law which the plays present — along with a few other 
circumstances, urged as a basis for such claims — furnish 
the groundwork for this superstructure of the imagination. 
But let us briefly look into the source and basis of such 
claims. 

It was Walpole^ who first suggested the idea that the 
plays of Shakespeare may have been written by Lord 
Bacon, but nothing tangible, in the way of evidence, was 
offered as a basis for such suggestion, and until 1857, when 
Delia Bacon, of Ohio, published her "Philosophy of the 
plays of Shakespeare unfolded," there was never any fixed 
theory advanced that anyone but Shakespeare had pro- 
duced the plays theretofore credited to him. While very 
interesting, the conclusions of this gifted woman have 
never been regarded by competent critics as sufficient to 
overthrow the title of Shakespeare to the plays, but the 
evidence of his cotemporaries and those most familiar 
with his life's w^ork and the circumstances of his life, has 
been regarded as unshaken by these post-century theories, 
indulged in, in the face of such accumulated proof. 

Judge Webb, in his ''Mystery of William Shakespeare," 
urges that there was found, in the library of Northumber- 
land, a manuscript volume, in which the two Richards 
were catalogued with the works of Bacon (Webb's Mystery 
of William Shakespeare, p. 246) ; he presents that Shakes- 
peare performed before the Court, at Richmond, while 
Essex and Southampton were being prosecuted for their 

* Professor Lounsburg, of Yale, in his book, "Shakespeare and 
Voltaire," speaking of Horace Walpole's vagaries, in the preface 
of the second edition of "The Castle of Otranto" and in his "His- 
toric Doubts on the Life and Reign of Richard IIL" observes: "In 
this very volume, dealing with Richard IH, appears the first 
example of that long line of absurd theories connected with 
Shakespeare's life and writings, which give to the man of melan- 
choly temperament and tendencies gloomy views as to the im- 
mense abysses of asininity in human nature, which still lurk 
unexplored." 



4 THE LAW IN SHAKESPEARE. 

connection with the production of Richard II ; that Shakes- 
peare failed to make disposition of his plays, in his will, 
after disposing of all the rest of his property, and that the 
plays were not produced, in published form, complete, 
until seven years after the death of the poet. (Webb's 
Mystery of William Shakespeare, p. 83.) 

These are perhaps the most ponderous circumstances 
that can be mentioned, to discredit the authenticity of the 
plays by Shakespeare — aside from the quantity of law pre- 
sented — and we want to separately consider each of these 
circumstances. 

If true that someone catalogued the plays named, as the 
works of Bacon, unless Bacon asserted title to these plays, 
or the knowledge of the authorship of the plays by the per- 
son so cataloguing the plays was shown, this would be a 
circumstance of no moment, to be considered as proof of 
the authorship of these plays. At this period of the world's 
history, many men of literary attainments were engaged 
in writing plays and Bacon may have written plays of 
the same tenor as those of Shakespeare upon the two Rich- 
ards, but this fact, or the circumstance that some one listed 
two plays of this name to him, would not establish that 
Shakespeare had not written the plays of the same name, 
which are found to so thoroughly agree in every particu- 
lar, with his masterful genius and manner of expression, 
when compared with plays that it is known he did write. 
Like a rumor that one's property is claimed by another, 
this listing of these plays in the name of one not shown 
to have ever claimed them, is entitled to no consideration 
at all. However, if Bacon could have Avritten these plays, 
he would not have prosecuted Essex and Southampton, for 
their connection with the publication of the plays and if 
Lord Coke — Bacon's implacable enemy — could have dis- 
covered that Bacon had himself written these plays, he 
would surely have urged this against him? 

But what about the other circumstance, of the poet's 
failure to make disposition of his literary productions, in 



THE LAW IN SHAKESPEARE. 5 

his last will and testament, after such careful revision of 
the plays? The idea of a right of property in literary 
productions is of quite modern origin. A copyright was 
unknown until a long time after printing was invented, 
which was in the fifteenth century. The common law 
was silent upon the subject of protecting literary produc- 
tions and it was only in 1709 that the English Parliament 
passed an Act to protect such literary property. So it is 
not passing strange that Shakespeare omitted altogether 
to make mention of his plays, in his will, for they were 
then a species of property not recognized as having any 
property value in law.^ 

Printing had not reached a state of very great perfec- 
tion at the time of Shakespeare's death and the fact that 
the plays were not produced until after his demise, is not 
of much account, when they were duly accredited to him 
when they were produced and no one else laid valid claim a /-, 



thereto 

On the front page to the edition of the plays, published 
in 1623, 4^qhnson referred to the cut, appearing on the 
page, as having been made for "gentle Shakespeare," and 
this certainly furnishes a title deed to this edition of the 
plays in his favor, and in the presence of this evidence, 
the inference that Bacon, who had then retired from active 
life, and in his disgrace and humiliation sought literary 
pursuits as a solace for his shame and published the plays, 
in connection with his friend Johnson, in the name of 
Shakespeare, who was then dead, to conceal his authorship 
(Webb, Mystery of Wilham Shakespeare, pp. 130-160) 
seems too far-fetched to be entertained. 

The special pleader thus sums up the mysterious cir- 

^The Poet's will, in the entailment of his real estate to the 
bodily heirs male of his daughter, evidences careful legal prepara- 
tion and the conclusion is not unreasonable, that the same degree 
of legal discrimination which this disposition evidences, recog- 
nized the futility of any attempted disposal of his literary works, 
which at this period lacked the attribute of property, in law. 






6 THE LAW IN SHAKESPEARE. 

cumstances, in an effort to destroy the title of Shakes- 
peare to his plays: 

''In the one case, there is a startling contrast, 
between the man, as we know him, and the works as 
we possess them ; in the other, the works, as we possess 
them, and the man, as we know him, are in strict 
accord. And hence, it is, that in the latter case, we 
are ready to infer authorship of the works, because 
we recognize the qualifications of the man, while in 
the former w^e attribute the qualifications to the man, 
because we regard him as the author of the works." 

But, in law, an inference, or presumption, can never be 
indulged in, in the face of an established fact. It is only 
when evidence is wanting, that an inference or presump- 
tion can play a part. Were this inference to be indulged 
in, as suggested by Judge Webb, in the face of the 
accumulated evidence of Shakespeare's authorship of the 
plays, such inference would always depend upon the way 
the party indulging such presumption, knew the man, or 
his life's work ; if he did not know him, his inference, or 
presumption, would be w^orthless, while the presumption 
would vary with the knowledge of the one indulging it, 
or would altogether fail, if the individual did not happen 
to be at all presumptuous. Many men of genius lived in 
this same age and many wrote plays, so why attribute 
plays to one not known as a play writer, when there were 
so many play-writers who could as well have written the 
plays as Lord Bacon? Bacon was a lawyer of ability, but 
a poet of mean attainments, as his few verses indicate; 
Shakespeare was a poet of exalted merit, with a smatter- 
ing of law; the works the presumption attaches to are 
those of a poet, therefore Shakespeare wrote the plays. 
This would be a much saner presumption than that in- 
dulged in, according to the ordinary settled rules of con- 
struction. But in indulging a presumption of authorship, 
from the fitness of one to write the plays, why indulge 
such presumption, in the face of the evidence of the actual 
author, of whose ability to write the plays it is admitted 



THE LAW IN SHAKESPEARE. 7 

that nothing is known. In other words, why indulge two 
presumptions, or speculate upon two unknown quantities, 
when, in the other case, you have admittedly but one to 
solve. Shakespeare claimed and was acknowledged the 
author of the plays; it is known he wrote plays, so why 
deny his authorship, because of a presumption of his 
incompetency to write these plays? Bacon is not known 
to have written plays; he is not shown to have possessed 
ability to write a play ; he never claimed these plays, so if 
he could write plays, why presume that he wrote these 
plays of Shakespeare? 

Take the case as these conflicting claimants would stand 
at law. With the knowledge and without the disapproval 
of Bacon, who was alive when the first edition of the plays 
was presented to the public, he stood by and saw another 
claim and appropriate the work ; he knowingly permitted 
the plays and sonnets to be published as those of Shakes- 
peare and did not once urge his claim thereto. In thus 
failing to speak, when he should have spoken, regardless 
of the reasons for his silence, Lord Bacon thus estopped 
himself and his admirers from claiming these immortal 
productions and by this same equitable principle these spe- 
cial pleaders are likewise estopped from urging his stale 
and unasserted claims to the plays. 

In 1598 Shakespeare was spoken of by Francis Meres, 
in his ''Wits Treasury," as admittedly the ''most excellent 
among the English for both kinds of tragedy and com- 
edy." Before this period he had gained widespread popu- 
larity as a dramatist, and had received special marks of 
favor from Queen Elizabeth ; he was later honored by her 
successor, King James, and was the friend of the earl of 
Southampton and the earl of Pembroke. Dryden said of 
him that he was "the man who, of all moderns and per- 
haps ancient poets, had the largest and most comprehen- 
sive soul," and hence, it is no mystery why Ben Johnson 
honored his memory, "only on this side idolatry." 

True, almost every play, as well as the sonnets, display 



8 THE LAW IN SHAKESPEARE. 

great legal learning and accurate knowledge, not only of 
legal terms, but of the science and philosophy of the law, 
as well. Judge Webb says that this is not the learning of 
the lawyer's clerk, either, but that of the scientific lawyer, 
thoroughly acquainted with the remedies and rights of 
persons and of the rules governing the ownership and 
alienation of property. Upon the same subject Lord 
Campbell said: "To Shakespeare's law, lavishly as he pro- 
pounds it, there can neither be demurrer, nor bill of ex- 
ception, nor writ of error." But of this, at all times, it 
may be doubted if the statement is not too general, for 
sometimes, for dramatic effect, or under the license of 
poetry, the law is not correctly presented, as in the trial 
scene of the "Merchant of Venice," where illegal reasons 
are assigned for giving judgment against Shylock. No 
scientific lawyer could have written this play and delivered 
the judgment that Portia is made to deliver, in denying 
Shylock his pound of flesh. 

However, in the main, the law presented in the plays is 
accurately written and correctly used, as will be seen by a 
few illustrations. As observed by Judge Webb: 

"Greek and Trojan, Roman and Syracusan, An- 
cient Briton and Scandinavian, Venetian and Illy- 
rian, Lord and Lady, all discourse the jargon of the 
English courts. In Troilus and Cressida, Pandarus 
talks of a 'kiss in fee-farm' ; Thersites of 'the fee- 
simple of the tetter,' Troilus of 'perfection in rever- 
sion,' and the pre-contrart, which serves Cressida for 
a marriage, concludes with the formula, 'In Witness 
Whereof, the parties interchangeably,' of the drafts- 
man. In Anthony and Cleopatra, the Roman Trium- 
vir distinguishes between title by purchase and title 
by descent. In The Merchant of Venice, Antonio se^.- 
ties the property of the Jew in so lawyerlike a manner 
that Mr. Lewin, in his Treatise on Trusts, cites his 
language in illustration of a 'use.' In As You Like 
It, the Duke orders his officers to make an 'arrest.' 
In Lear the deluded Gloster proposes to make his 
bastard 'capable.' In King John, the law of adulter- 
ine bastardy is laid down with the precision of a text- 



THE LAW IN SHAKESPEARE. 9 

book. In Henry the Fifth, the archbishop of Canter- 
bury delivers a lecture on the Law Salique. In 
Henry the Sixth, Somerset discusses the legal effect 
of an 'attainder.' In Henry the Eighth, Suffolk cites 
the very words of the statute when he charges Wol- 
sey wdth having brought himself 'into the compass 
of a praemunire.' In Hamlet, the Prince of Den- 
mark talks of statutes, recognizances, fines and recov- 
eries and double vouchers, as glibly as if he was fresh 
from reading Bacon's law tracts; and the very grave 
diggers discuss the point of a case of felo-de-se, which 
is only to be found in the reports of Plowden. In 
Love's Labour's Los^, the French maid of honor refuses 
to make her lips a 'common o' pasture;' in As You 
Like It, Rosalind talks of 'dying by attorney;' in 
The Merchant of Venice, Portia proposes to be 
charged 'on interrogatories ;' and in the Merry Wives 
of Windsor, Mrs. Page, speaking of the fat knight, 
says 'if the devil have him not, in fee-simple, with 
fine and recovery, he will never, I think, in the way 
of waste, attempt us again.' The practice of the 
courts was as familiar to the dramatist as the theory 
of the law. In the Comedy of Errors, we have a 
circumstantial account of an arrest on mesne process 
in an action on the case, effected on a merchant, in 
the streets of Ephesus." (Webb's Mystery of William 
Shakespeare, pp. 167, 168.) 

And not only the plays of Shakespeare, but the sonnets 
and poems, as well, are as replete with law terms and legal 
illustrations and similes, as if they were written by one 
deeply learned in the science of the rights of litigants. 

But in the face of the accumulated evidence that Shakes- 
peare wrote these plays and sonnets, shall the fact that 
they contain the law, accurately written, be sufficient, of 
itself, to divest his title and to vest it in another? Other 
authors, not themselves learned in the law, have produced 
works accurately presenting the most technical law points, 
in such a manner as to render the law discussed unob- 
jectionable to lawyers of the most advanced scientific learn- 
ing. A London physician, in the novel, "Ten Thousand 
a Year," presents the details of the common law action 



10 THE LAW IN SHAKESPEARE. 

of ejectment in such a manner as to make lawyers ques- 
tion that other than a lawyer could so accurately describe 
this technical action. It has also been a matter of wonder 
how George Eliot contrived to present such accurate legal 
details in her novels. In the preparation of her plots, she 
frequently consulted Frederic Harrison, who was a prac- 
ticing lawyer, before he devoted himself to literary pur- 
suits. The intricate legal plot in ''Felix Holt," was sug- 
gested by Mr. Harrison and Lord Herschall, a barrister of 
considerable learning. Lord Bowen, another eminent law- 
yer, was consulted by her, in the presentation of the legal 
points, in "Daniel Deronda." And, it is claimed that the 
Attorney General's opinion, printed in italics, in "Felix 
Holt," was entirely prepared by Mr. Harrison. Other 
writers have been likewise prudent to procure the assist- 
ance of lawyers in the presentation of the details of legal 
plots. Dickens, it is claimed, enjoyed the assistance of 
Talfourd, a lawyer and author of repute, and Bulwer- 
Lytton, it is said, paid quite a substantial fee, for the 
opinion of a lawyer, on the details of the lawsuit in "Night 
and Morning," wherein the character of evidence admit- 
ted is somewhat questionable. 

Thus, it will be seen, that other writers, unlearned in 
the law, have been able, accurately, to present the details 
of technical suits, and to present legal propositions with 
the same facility that Shakespeare does, but this is not 
deemed a sufficient reason to question their authorship 
of the various literary productions known to have been 
written by them. Shakespeare, too, may have visited the 
"Inns of Court," "and discussed the legal phases of his 
plots, with some of the many good lawyers of his day. Like 
the other circumstances named, the fact that the law is 
accurately and frequently used by the poet, is no evidence 
that other than the poet wrote the plays, which time and 
his cotemporaries approve as his. 

The criminal types presented in the plays are recently 
the subject of a special work by a Danish scientist, on 



THE LAW IN SHAKESPEARE. 11 

Criminology, and while, at first blush, it might seem that 
such a work would be academic, on sound reflection it was 
decided by this expert, that the criminal types which 
Shakespeare presents, show such perfect knowledge of 
criminology and criminal motives and instincts as to make 
his types of criminals really more reliable, for the study 
of criminology, than either the mendacious reports of 
crimes by leading criminals, or those of any other known 
writer on the subject. Thus, Brutus, presents the purely 
political criminal, of a high and noble type; Cassius the 
selfish and bitter intriguer ; Macbeth and his wife the dual 
criminals requiring each other to perfect the crime; lago 
the natural criminal, so frequently met with, while 
Richard III is the hereditary criminal, of the perverted 
type, longing to destroy his fellows, because they are all 
unlike him and shapely and comely, while he is deformed 
and alone. 

It may be suggested that genius alone would not furnish 
the ability to so thoroughly delineate the image and life 
of crime and to so spy into the "home of the inner mind" 
of the criminal, as the practical student of the subject 
would possess, and while the lack of practical observation 
would not seem to be supplanted by the native genius or 
ability of the artist, but a lack of insight or field for prac- 
tical observation would apparently result in a natural limi- 
tation of the delineator of such types, such reflections are 
puerile in the face of the existence of the facts which they 
disclose, as presented by the works of this genius. 

Considering the criminal types of Shakespeare as the 
best known for the study of criminology, the Danish 
scientist observes : 

"High above all, like a mountain above mole hills, 
towers Shakespeare's wonderful genius. His charac- 
ters fit into all times, belong to the whole of humanity. 
They fill every one who knows them Avith an interest 
such as hardly any other imaginarv characters pro- 
duce. They possess a general validity which raises 
them above mere fantastic figures, mere scrawls ; they 



12 THE LAW IN SHAKESPEARE. 

are not individual heroes, blackguards, criminals; 
no, they represent, each in his own way, the good, 
the evil, the anti-social itself, in man, yet without 
therefore, ever diminishing to abstraction, without 
ever ceasing to be human beings, like ourselves. 

By choosing them, we, therefore, get as near as 
possible to the ideal of seeing the criminal in man 
and man as criminal; we reach a generalization, 
through specialization of which Lombroso's heavy 
lines give us no conception, we get a view of just how 
much of the fine thread which probably binds the 
criminal idea into a whole, as we, after all, with our 
present know^ledge, are likely to get, becauge we 
faintly see the thread which connects the criminal 
with ourselves. 

It is of no importance that Shakespeare lived three 
hundred years ago. To him no psychological prob- 
lem seems unknown and he solves them all as if in 
play. He leads us with equally firm hand to the 
highest summits and the deepest abysses of the soul. 
In an age when men had hardly yet put the question. 
Why? to the physical world around them, he had 
both put and answered it in the domain of mind, in 
the human being's own soul. Yes, where he moves 
amid the depths of humanity, he seems to love the 
questions he puts to himself: How does this being 
happen to be like this, what has decided him, how 
have motives influenced him, how have they arisen 
within him? And he spreads out before us the 
motive's tangled skein, the whole of the intricate net 
of threads he explains to us, at least if we are willing 
and able to follow the flight of his thoughts ; so that, 
at last we see clearly how it acts and must act, how it 
results in just this crime for just this person. Al- 
though formerly an adherent of the free will, he is, 
in fact, one of the most stirring spokesmen of de- 
terminism. If any body can teach us criminal 
psychology, it is Shakespeare." (Golls' Criminal 
Types in Shakespeare, pp. 24-26.) 

Here is important evidence on a special branch of 
human knowledge, akin to the wide knowledge of the 
law, which the plays evidence, but the expert does not 
question Shakespeare's knowledge of the facts he por- 



THE LAW IN SHAKESPEARE. 13 

trayed upon the criminal instincts of certain of his char- 
acters. No amount of study of criminology would give 
such deep insight into the human heart as the criminal 
types of Shakespeare demonstrate that he possessed, but 
such delineations, by mere words, of the inner man, so 
true to life, in all the different phases wherein the types 
are presented, like the true and just creations of the human 
form, through paint and marble, by Raphael, Michael 
Angelo, Leonardo d'Vinci, and the other masters, in their 
several realms, have rather, the divine gift of genius as a 
basis for their existence. 

An artist, with equal propriety, might as well question 
Michael Angelo's productions, because of his lack of prepa- 
ration for his work, as to question Shakespeare's literary 
work, because of his ill advantages at some early period in 
his life, but in the presence of- the actual productions and 
the lasting works of art, such claims would be unavailing. 
Yet the evidence of the one is no more convincing than 
of the other. 

Skeptics have likewise questioned Homer's title to the 
Iliad, and in an age when most things that are true are 
doubted, it is little wonder that the genius which inspired 
the great plays that time will never destroy should be 
attributed to another than the immortal Shakespeare. 
This title is secure, not only when viewed from a strictly 
legal standpoint, but according to the poet's idea of jus- 
tice, which required evidence to establish the existence of 
crime, in all cases. Before he is convicted of plagiarism, 
at such a remote period, there should be facts and not mere 
conjecture, as these adverse claimants indulge in. 
"... for mine honor, 

(Which I would free,) if I shall be condemn'd 

Upon surmises; all proofs sleeping else, 

But what your jealousies awake; I tell you, 

'Tis rigour and not law." (Winter's Tale, Act III, Scene II.) 

And so, when the title to his plays was asserted by his 
cotemporaries and his claim remained without dispute 



14 THE LAW IN SHAKESPEARE. 

until the lapse of centuries, it is too late now, without 
cogent and convincing proof, to rob this poet of the title 
to his plays. Limitations, laches, estoppel and other de- 
fenses are a complete bar to all conflicting claims. The 
evidence of those who knew best whereof they spoke, must 
be received in the place and stead of mere surmises and 
conjectures of those who knew it not. 

Christ's authorship of the Sermon on the Mount, the 
philosophy of Buddha, the wisdom of the Perfect Sage, 
of the Chinese, the philosophy of Aristotle and Plato, 
the works of the great masters in art, music and the 
sciences can all be questioned, but there must be evi- 
dence and not mere "surmises" before posterity will divest 
the titles of those in whom the ages have established them. 
Property rights, in law, may be established by mere ru- 
mors that have been so general and continuous as to 
amount to a continuous, established reputation of owner- 
ship, for a long period of years, and when the centuries 
have approved the title of the author of the chief literary 
masterpieces of the brightest period of English history, 
shall such title, in after centuries, by mere conjecture be 
effected? If so, "I tell you," in the language of Shakes- 
peare, " 'tis rigour and not law." 

Not alone in the law, but in all the other branches of 
human wisdom, the poet's plays are a revelation and a 
wonder. Emerson said that 

"Sequent centuries could not hit, 
Orbit and sum of Shakespeare's wit," 

and the testimony of the various specialists establishes the 
truth of this observation. Musicians are surprised at his 
wonderful knowledge of music; physicians, at his insight 
into medicine, lawyers at his accurate knowledge of the 
law. No fact of history, science or creation, but was apt 
to be observed, in some instant of time by him, and then, 
with his genius, reproduced, when the occasion called for 
it. 



THE LAW IN SHAKESPEARE. 15 

It is certain that his plays present, on all matters of 
human wisdom, the greatest treasury the world has ever 
seen, in the different branches of human knowledge and 
if it is admitted that the most sublime facts of human 
science and knowledge are presented along with the un- 
equal facts of the licentious or obscene world, this is not, 
necessarily because he was wild, beyond rule or art, but 
rather ^'a great luminary, moving at all times, according 
to a well regulated law of artistic evolution." 

The attempt has been made to abstract and brief every 
proposition of law, discussed or presented by the poet, in 
his plays and sonnets. The explanations of the terms 
used, to lawyers, will seem quite academic, but to the 
laiety, such an explanation is essential to a full under- 
standing of the legal terms and the import to be given 
thereto. And even to those skilled in the use of such 
terms, the accuracy and deep learning displayed by the 
frequent use of law terms and the Poet's reasoning and 
philosophy of the law", will be interesting, in view of the 
controversy over the question as to the ability of one not 
a lawyer to write such dissertations on the law. 

The plan foUow^ed in presenting the law of the various 
plays is to quote the verse containing the law presented, 
under an appropriate heading, reference to which, in the 
index, will give ready access to the verse containing the 
law referred to. As the various plays and the law in each 
is also presented in the regular order, by reference to the 
body of the work, the various propositions of law con- 
tained in each play, can be found. To avoid the useless 
repetition of various law terms presented in the different 
plays, under each heading will be found, in the foot notes, 
the different references to the same law term or proposi- 
tion, occurring in the different plays. While this arrange- 
ment will prevent the ready access to the law of the notes 
in the several plays, by reference to the plays, in the order 
in which they appear, the saving of time and space by this 
method, is none the less accomplished, by a ready refer- 



16 THE LAW IN SHAKESPEARE. 

ence to the law term desired, where the Poet's reference 
to such term, in the different plays or sonnets, will either 
be found in text or foot note. Thus the law of the plays' 
will be found by either of these cross references, i. e., by 
referring to the plays in the order of their publication, or 
by reference to the index and table of contents for the law 
term or proposition desired. This is deemed the only prac- 
tical method of presenting the subject, so that it can be 
readily handled by both laymen and lawyers, and it is 
hoped that the method followed will be found convenient. 
The author desires to express to the profession his obli- 
gations for the kind reception of his previous efforts and 
to indulge the hope that the present work may not be 
found wholly wanting in practical utility. 



CHAPTER I. 

"THE TEMPEST." 
Sec. 1. Confiscation of property — Doing homage. 

2. Witness' oath. 

3. The marriage contract. 

Sec. 1. Confiscation of Property — Doing Homage. 

"Pro. This King of Naples, being an enemy to me invet- 
erate, hearkens my brother's suit ; 
AVhich was that he, in lieu o' the premises, of hom- 
age and I know not how much tribute, — 
Should presently extirpate me and mine out of the 
dukedom ; and confer fair Milan, with all the hon- 
ors, on my brother."^ 

This language is used to show a consideration for the 
confiscation of the estate of the speaker. 

"In lieu o' the premises," are terms indicative of the 
common meaning of a quid pro quo. "Lieu" is here used 
in the sense of instead or in place of. That is, the scheme 
of confiscation had been adopted in lieu of the plan of 
extortion and extortion was the consideration for the judg- 
ment of confiscation. 

Homage, in feudal law, was the rendition of submission 
and service by the tenant to the lord or superior, when 
first admitted to the land which he held of him, in fee. 
In other words, when invested with the fee, the tenant 
rendered homage to the Lord. The tenant was ungirth 
and uncovered and he kneeled and held up both hands 
between those of the lord, and professed that "he did 
become his man, from that day forth, of life and limb and 
earthly honor." After this profession he received a kiss 
from the lord paramount and the ceremony of doing 
homage was then ended.^ 

^Tempest, Act I, Scene II. 

* Blackstone's Com. 87; Tiedeman's Real Prop. (3d Ed.) Ch. III. 
The word "lieu" is also used, in Love's Labour's Lost (Act III, 
Scene I) in the following sense: "Arm. I give thee thy liberty, set 

(17) 



18 THE LAW IN SHAKESPEARE. 

thee from durance, and, in lieu thereof, impose on thee nothing 
but this." 

In Merchant of Venice (Act IV, Scene I) after acknowledg- 
ment of his obligations to Portia, for the acquittance from the 
Jew, Bassanio "in lieu" thereof tendered the three thousand du- 
cats to Portia. 

In Comedy of Errors, the Merchant advises Antipholus: "There- 
fore, give out you are of Epidamnum, Lest that your goods too 
soon be confiscate." (Act I, Scene II.) 

In rendering homage to King Henry VI, Richard Plantagenet 
said: "Plan. Thy humble servant vows obedience and humble 
service, till the point of death." And the King said: "K. Hen. 
Stoop then, and set your knee against my foot; And in reguerdan 
of that duty done, I girt thee with the valiant sword of York: 
Rise, Richard, like a true Plantagenet; And rise created princely 
duke of York." (Act III, Scene I.) 

Charles, Dauphin of France, and his nobles, swear allegiance to 
the crown of England, in 1' Henry VI, as follows: 
"York. Then swear allegiance to his majesty; , 

As thou art knight, never to disobey. 
Nor be rebellious to the crown of England, 
Thou nor thy nobles, to the crown of England." (Act V, 
Scene IV.) 

King Henry VI, in 2' Henry VI, knights Alexander Iden, for 
killing Cade, in this language: "K. Hen. . .Iden, kneel down. 
(He kneels.) Rise up a knight. We give thee for reward a 
thousand marks; And will, that thou henceforth attend on us." 
(Act V, Scene I.) 

The king thus knights his son, in 3' Henry VI: "Q. Mar. . . . 
You promised knighthood to our forward son; Unsheath your 
sword, and dub him, presently. — Edward, kneel down. 

K. Hen. Edward Plantagenet, arise a knight; And learn this 
lesson, draw thy sword in right. 

Prince. My gracious father, 'by your kingly leave, I'll draw 
it as apparent to the crown. And in that quarrel use it to the 
death." (Act II, Scene II.) 

Warwick tells Clarence, in 3' Henry VI: "War. . . now then 
it is more than needful. Forthwith that Edward be pronounced 
a traitor. And all his lands and goods be confiscate." (Act IV, 
Scene VI.) 

Belarius tells Cymbeline: 

"First pay me for the nursing of thy sons; And let it be con- 
fiscate all, so soon as I have received it." (Act V, Scene V.) 



THE LAW IN SHAKESPEARE. 19 

Sec. 2. Witness oath. — 

"Cal. I'll swear upon that bottle to be thy true subject. 

for the liquor is not earthly. 
Ste. Here ; swear then, how thou escap'dst. 
Trin. Swam a-shore, man, like a duck; I can swim like 

a duck, I'll be sworn. . . . 
Ste. Come, swear to that; kiss the book; I will furnish it 

anon, with new contents: swear."^ 

The most common form of oath, by the use of the gospel, 
is that here adopted. This form of oath obtains in coun- 
tries subject to the English and Roman law. The witness 
took the book in his hand and then assented to the words: 
"You do swear that," etc., "so help you, God," and then 
kissed the book.^ The origin of this form of oath may be 
traced to the Roman law.^ Kissing the book is perhaps an 
imitation of the priest's kissing the ritual, as a sign of 
reverence before reading it to the congregation.* 

That the central idea of the oath was thoroughly under- 
stood by the Poet is apparent from the language used, for 
an oath is but an outward pledge that the witness makes 
his attestation under an immediate sense of his responsi- 
bility to God and promises to accomplish the transaction 
to which it refers, according to His laws,° 

* Tempest, Act II, Scene II. 

= 9 Carr & P., 137. 

*Nov. 8, Tit. 3; Nov. 124, cap. 1. 

*Rees, Cycl. 

"Tyler, Oaths, 15. 

The Jew is sworn on the Pentateuch, or Old Testament, with 
his head covered. Strange, 821, 1113. The Mohammedan, on the 
Koran, 1 Leach, Cr. Gas. 54. The Brahmin, by touching the hand 
of a priest, Wils. 549. 

In Love's Labour's Lost, the Poet justifies a false oath, as 
follows: 
"Biron. Let us once lose our oaths, to find ourselves. 

Or else we lose ourselves to keep our oaths; 

It is religion to be thus forsworn; 

For charity itself fulfills the law; 

And who can sever love from charity." (Act IV, Scene III.) 



20 THE LAW IN SHAKESPEARE. 

In Merchant of Venice (Act II, Scene II), the oath, by swear- 
ing on the book, ia again spoken of, as follows: "Laun. Father, 
in: — I cannot get a service, no: — I have ne'er a tongue in my 
head. — ^Well; ilooJcing on his palm) if any man in Italy have a 
fairer table, which doth offer to swear upon a book. — I shall have 
good fortune," etc. And Shylock said: "An oath, an oath, I have 
an oath in heaven: Shall I lay perjury upon my soul? No, not 
for Venice." (Act IV, Scene I.) 

In All's Well That Ends Well, (Act IV, Scene II) the Poet 
makes Diana say: "Dia. 'Tis not the many oaths that make the 
truth; 
But the plain single oath, that is vow'd true. 
What is not holy, that we swear not by; but take the highest 
to witness." 

In Winter's Tale, the messengers from Apollo's priest, took the 

following oath: 

"Offi. You here shall swear upon this sword of justice. 

That you, Cleomenes and Dion, have been both at Delphos; 
And from thence have brought this seal'd-up oracle. 
By the hand deliver'd of great Apollo's priest; and that, 
Since then, you have not dar'd to break the holy seal. 
Nor read the secrets in't. 

Cleo. Dion. All this we swear." (Act III, Scene II.) 

On pronouncing their banishment. King Richard II exacts the 
following oath from Bolingbroke and Norfolk: 

"£■. Rich. Return again, and take an oath with thee. 

Lay on our royal sword your banish'd hands; 

Swear by the duty that you owe to heaven, . 

(Our part herein we banish, with ourselves,) 

To keep the oath that we administer: — 

You never shall (so help you truth and heaven:) 

Embrace each other's love in banishment; 

Nor never look upon each other's face; 

Nor never v/rlte, regret, nor reconcile 

This lowering tempest of your home-bred hate; 

Nor never by advised purpose meet. 

To plot, contrive, or complot any ill. 

'Gainst us, our state, our subjects or our land. 
Baling. I swear. 
2Vor. And I, to keep all this." (Act I, Scene III). 

In 1' Henry IV, Francis said to Prince Henry: ''Fran. lord. 



THE LAW IN SHAKESPEARE. 21 

sir; I'll be sworn upon all the books in England, I could find In 
my heart." (Act II, Scene IV.) 

The Poet makes Falstaff say to Bardolph, in 1' Henry IV: 
^'Fal. ... If thou wert any way given to virtue, I would 
swear by thy face; my oath should be, By this fire." (Act III, 
Scene III.) 

Hostess Quickly, in 2' Henry IV (Act II, Scene II), puts Fal- 
staff upon his oath, as follows: "Host. Thou did'st swear to me 
upon a parcel-gilt goblet, sitting in my Dolphin chamber, at tire 
round table, by a sea-coal fire, upon Wednesday, in Whitsun week, 
when the Prince broke thy head for liking his father to a signing 
man of Windsor, thou did'st swear to me then, as I was washing 
thy wound, to marry me and make me my lady thy wife. Can'st 
thou deny it? . . . And did'st thou not kiss me and bid me 
fetch thee thirty shillings? I put thee now to thy book-oath; 
deny it, if thou can'st." 

Pistol, enraged at corporal Nym, comes quite near taking an 
oath, in Henry V, as follows: "Pist. Base tike, call'st thou me — 
host? Now, by this hand I swear, I scorn the term; nor shall my 
Nell keep lodgers. (Act II, Scene I.) 

And in attempting to part the combatants, Bardolph said: 
"Bard. By this sword, he that makes the first thrust, I'll kill 
him; by this sword, I will." And Pistol replies: "Pist. Sword 
is an oath, and oaths must have their course." (Act II, Scene I.) 

In 2' Henry VI, the earl of Salisbury, thus abjures his oath 
of allegiance to the King: 

"Hen. Hast thou not sworn allegiance unto me? 
Sal. I have. 

Hen. Can'st thou dispense with heaven for such an oath? 
Sal. It is great sin, to swear unto a sin; 

But greater sin, to keep a sinful oath. 

Who can be bound by any solemn vow 
• To do a murderous deed, to rob a man. 

To force a spotless virgin's chastity. 

To reave the orphan of his patrimony. 

To wring the widow from her custom'd right; 

And have no other reason for this wrong. 

But that he was bound by a solemn oath?" 

(Act V, Scene I.) 

Richard thus reasons that a non-official oath Is without effect 
In 3' Henry VI: 

"Rich. An oath is of no moment being not took. 
Before a true and lawful magistrate. 



22 THE LAW IN SHAKESPEARE. 

That hath authority over him that swears; 
Henry had none, but did usurp the place; 
Then seeing 'twas he that made you to depose. 
Your oath, my lord, is vain and frivolous." 

(Act I, Scene II.) 

Clarence thus excuses his violation of his oath in 3' Henry VI: 
"Clar. Perhaps, thou wilt object my holy oath, 
To keep that oath were more impiety, 

Than Jeptha's, when he sacrificed his daughter." (Act V, 
Scene I.) 

In his attempt to woo the daughter of Queen Elizabeth, his 
own niece. King Richard III swears as follows: 
"K. Rich. . . . Now, by my George, my garter and my 

crown, — 
Q. Eliz. Profan'd, dishonored and the third usurp'd. 
K. Rich. I swear. 
Q. Eliz. By nothing; for this is no oath. 

Thy George, profan'd, hath lost its holy honour; 

Thy garter, blemish'd, pawn'd his knightly virtue; 

Thy crown usurp'd, disgrac'd his kingly glory; 

If something thou would'st swear to be believ'd. 

Swear then by something that thou hast not wrong'd." 

(Act IV. Scene IV.) 

Lucius thus swears to perform his promise to Aaron, in Titus 
Andronicus: 
''Luc. Even by my God, I swear to thee, I will." 

(Act V, Scene I.) 

And Hamlet and the Ghost insist upon Horatio and Marcellus 
being sworn, as follows: 

"Ham. . . . consent to swear. 

Hor. Propose the oath, my lord. 

Ham. Never to speak of this that you have seen. 

Swear by my sword. 
Qhost. (Beneath) Swear. 
Ham. Hie et ubiguef then we'll shift our ground: — 

Come hither, gentlemen, 

And lay your hands upon my sword: 

Swear by my sword. 

Never to speak of this that you have heard. 
Ojiost. (Beneath.) Swear by his sword." (Act I, Scene V.) 



THE LAW IN SHAKESPEARE. 23 

Sec. 3. The marriage contract — 

"Pro. If thou dost break her virgin knot before all sanc- 
timonious ceremonies may, with full and holy rite 
be ministered, 

No sweet aspersion shall the heavens let fall to 
make this contract grow."^ 

To guarantee deliberation and preserve the positive evi- 
dence of such an important transaction, the laws of most 
civilized countries require certain forms in the celebration 
of the marriage ceremony.^ In one form or another mar- 
riage is the oldest institution of society and the source of 
its most antique laws. At the basis of the marriage cele- 
bration is the necessity of society for some rule for the 
appropriation of the opposite sexes to one another and the 
protection of the relation established.^ The higher the 
standards of civilization, no doubt the greater regard is 
paid to the established ceremonies through which the 
marriage is celebrated. Hence the suggestion, by the poet 
that "No sw^eet aspersion shall the heavens let fall, to make 
this contract grow," until "all sanctimonious ceremonies 
may, with full and holy rite, be ministered." In all 
Christian countries, the marriage contract is celebrated 
by the accompaniment of a religious ceremony.* Hilde- 
brand declared marriage to be a sacrament of the church ; 
Calvin declared it to be an institution of God, while Gro- 
tius defined it as a contract of partnership. The legal idea 
of the marriage ceremony is presented in the above verse, 
as well as the recognition of the institution from a spirit- 
ual standpoint, for in legal contemplation, even where the 
intervention of the priest is essential, on grounds of public 
policy, marriage is nothing more nor less than a civil 
contract, differing from other contracts in that its inci- 
dents are fixed by public law and in so far as it affects the 
status of the contracting parties.^ 

^ Tempest, Act IV, Scene I. 

' McLennan, Prim. Mar. 

^ Lubbock's Origin of Civilization; Tylor Early History of Mankind. 

* Bishop's Marriage and Divorce. 

•' Bishop's Marriage and Divorce. 



24 THE LAW IN SHAKESPEARE. 

For the effect of marriage contracts and espousals, both in the 
civil courts and ecclesiastic courts of Europe, see, 6' Bacon's Abr., 
pp. 454, 500. 

There is perhaps no legal subject to which Shakespeare makes 
more frequent reference than he does to that of marriages. Mar- 
riage ceremonies are presented in many of the different plays. 

That the recognition of the marriage contract as both a spir- 
itual institution and a legal contract, was appreciated by the 
Poet, will be apparent from a reading of his plays, where this 
theme is touched on. Thus, he makes Olivia say to Sebastian: 
"OIL Now go with me and with this holy man, Into the chantry 
by: there, before him, And underneath that consecrated roof. 
Plight me the full assurance of your faith." (Twelfth Night, Act 
IV, Scene III.) 

And again, the Priest details this ceremony: "Priest. A con- 
tract of eternal bond of love, confirmed by mutual joinder of 
your hands. Attested by the holy close of lips, Strengthened by 
interchangement of your rings; And all the ceremony of this 
compact. Sealed in my function, by my testimony." (Twelfth 
Night, Act V, Scene I.) 

In As You Like It (Act III, Scene III), The Vicar, Sir Oliver 
Martext, observed: 
"Truly, she must be given, or the marriage is not lawful." 

And in the marriage contract between Blanch and Lewis, 
Dauphin of France, the following occurs: "K. John. . . 
Phillip of France, if thou be pleased withal. Command thy son 
and daughter to join hands. K. Phi. It likes us well: — Young 
princes, close your hands." (King John, Act II, Scene I.) 

And the following, from As You Like It: 
"Ros. Come, sister, you shall be the priest and marry us. — 

Give me your hand, Orlando: — What do you say, sister? 
Orl. Pray thee, marry us. 
Cel. I cannot say the words. 
Ros. You must begin, — Will you, Orlando,- — 
Cel. Go to: — Will you, Orlando, have to wife, this Rosalind? 
Orl. I will. 
Ros. Ay, but when? 

Orl. Why now, as fast as she can marry us. 
Ros. Then you must say, — / take thee Rosalind, for wife. 
Orl. 1 take thee, Rosalind, for wife. 
Ros. I might ask you for your commission: but — I do take 

thee, Orlando, for my husband." (Act IV, Scene I.) 



THE LAW IN SHAKESPEARE. 25 

And in the song, by the representative of Hymen, in the same 
play, the sentiment is expressed as follows: "Wedding is great 
Juno's crown; O blessed bond, of board and bed." (Act V, Scene 
IV.) This is based on the legal expression, used in divorces from 
the bed and board, i. e., mensa et thora, to distinguish divorces 
from the bonds of matrimony, or those a vinculo matrimona. 

In All's Well That Ends Well, the following occurs: "King. 
Good fortune and the favor of the king smile upon this contract; 
whose ceremony shall seem expedient on the new-born brief and 
be performed to-night." (Act II, Scene III.) 

Queen Isabel, of France, congratulated and blessed the union 
of Henry V and Katharina, as follows: 
"Q. Isa. God, the best maker of all marriages, 

Combine your hearts in one, your realms in one. 
As man and wife, being two, are one in love. 
So be there 'twixt your kingdoms such a spousal. 
That never may ill ofRce, or fell jealousy, 
Which troubles oft the 'bed of blessed marriages. 
Thrust in between the paction of these kingdoms. 
To make divorce of their incorporate league." 

(Henry V, Act V, Scene II.) 

Warwick and Queen Margaret contract to marry the Prince to 
the former's daughter, in 3' Henry VI, as follows: "War. . . . 
if our queen and this young prince agree, I'll join mine eldest 
daughter and my joy. To him forthwith, in holy wedlock bonds. 

Q. Mar. Yes, I agree and thank you for your motion: — Son 
Edward, she is fair and virtuous. Therefore delay not, give thy 
hand to Warwick; And, with thy hand, thy faith irrevocable. 
That only Warwick's daughter shall be thine. 

Prince. Yes, I accept her, for she well deserves it; And here, 
to pledge my vow, I give my hand." (Act III, Scene III.) 

Speaking of his contemplated union with Elizabeth, Richmond 
said in King Richard III: 

"Richm. . . O, now, let Richmond and Elizabeth. 
The true succeeders of each royal house. 
By God's fair ordinance conjoin together." 

(Act V, Scene IV.) 



CHAPTER II. 

"TWO GENTLEMEN OF VERONA." 

Sec. 4. Judgment unreversed — Tendered. 

5. Setting up new plea — Repealing former. 

Sec. 4. Judgment unreversed — Tendered — 

"Pro. Ay, ay; and she hath offered to the doom, which 
{unreversed) stands in eflPectual force, A sea of melt- 
ing pearl, which some call tears, Those at her 
father's churlish feet, she tendered."^ 

That the word "doom" in the verse quoted, is used in 
the sense of judgment, is apparent from the subject mat- 
ter and scope of the context. A judgment "unreversed" 
is one not annulled or set aside by the decision of a higher 
or superior court, possessing power, on appeal or writ of 
error to set aside or annull the judgment, sentence or de- 
cree of an inferior court.- Until reversed, a judgment is, 
of course "in effectual force" and all the remedies of the 
owner can be taken advantage of. The use of the terms 
in the way they are used, shows an accurate and proper 
knowledge of the remedial procedure of the English 
Courts. 

Tender, from the Latin tendere, to extend or offer, is 
something delivered or offered under such circumstances 
as to require no further act on the part of the party mak- 
ing the tender, to end the controversy.^ The thought is, 
that the tears were tendered as all that remained to be 
offered, in the hope that they would reverse the judgment 
or decree of banishment or exile. 



^Two Gentlemen of Verona, Act III, Scene I. 
'9 Carr & P. 513; Bouvier, Law Diet. 
' Bouvier, Law Diet. 

King Edward, in Richard III, asks as to Clarence's death: 
"K. Edw. Is Clarence dead? the order was revers'd." (Act II, 
Scene I.) 

(26) 



THE LAW IN SHAKESPEARE. 27 

Sec. 5. Setting up new plea. — Repealing former — 

"Duke. . , . Know then, I here forget all former 
griefs, 
Cancel all grudge, repeal thee home again. 
Plead a new state, in thy unrivall'd merit. 
To which I thus subscribe."^ 

The Duke, in these lines, suggests to Valentine that he 
will cancel his banishment and repeal the judgment of 
banishment, and that if he will file a new plea, based upon 
his unrivalled merit, he himself will recognize it and this 
will give it validity, for possessing the power and authority 
to sustain or reject the plea offered, the Duke's assurance 
is a practical affirmance of the validity of the plea sug- 
gested.^ 

^ Two Gentlemen of Verona. Act V, Scene IV. 

' See Rolfe's Two Gentlemen of Verona, p. 185, notes. 

Tarquin is made to reflect, in The Rape of Lucrece: "Why- 
hunt I then for color or excuses? All orators are dumb when 
beauty pleadeth." (267, 268.) 



CHAPTER III. 

"MERRY WIVES OF WINDSOR." 

Sec. 6 Contempt of Court — Star-Chamber. 

7. Compromising slanders. 

8. Right of Egress and Regress. 

9. Fee-Simple — Fine and Recovery — Waste. 

Sec. 6. Contempt of Court — Star-Chamber. — 

"Shal. Sir Hugh, persuade me not; I will make a star- 
chamber matter of it ; if he were twenty Sir John Fal- 
staffs, he shall not abuse Robert Shallow, Esquire. 

Slen. In the county of Gloster, justice of peace and Coram. 

Shal. Ay, cousin Slender, and Custalorum. 

Slen. Ay, and Rata-lorum, too; and a gentleman born, 
master parson, who writes himself Armigero; in any 
bill, warrant, quittance, or obligation, Armigero." ^ 

This verse is tantamount to a declaration to proceed in 
a summary way, against the offender, for a contempt of 
the authority of the speaker. The court of Star-Cham- 
ber — named no doubt because of the stars which studded 
the roof of the place where the court was originally held,- 
was composed of divers spiritual and temporal Lords, who 
were members of the privy council, and two common law 
judges.^ This court assumed jurisdiction in contempt 
proceedings and its jurisdiction extended originally to 
riots, misbehaviors of officers and other misdemeanors. It 
always acted in a summary manner and without a jury,* 
hence the threat, to inflict summary punishment, by the 
medium of such a proceeding, which had become very 
odious to the people of England.^ 

^ Merry Wives of Windsor, Act I, Scene I. 

'Coke, 4th Inst, 66. 

»3 Hen. VII, c. 1 and 21 Hen. VIII, c. 20. 

* Hudson, Court Star Chamber; 4 Bl. Com. 266. 

"16 Car. 1. c. 10. 

(28) 



THE LAW IN SHAKESPEARE. 29 

Coram, means before, and by the writ coravi vobis^ or 
coravi nohis,^ from the King's bench, the record was 
brought before you, or before us, as the case might be, for 
the inspection of the King's Justices. Of course the writ 
had no application to such inferior courts as those of jus- 
tices of the peace. 

Custos Rotulorum, meant Keeper of the Rolls; was the 
principal justice of the peace of a county and the custo- 
dian of the records.^ 

An Armiger was an armor-bearer, or Esquire, and the 
term was applied as a title of dignity to gentlemen bear- 
ing the arms.* 

Sec. 7. Compromising slanders. — 

"Evans. ... If Sir John Falstaff have committed 
disparagements unto you, I am of the church and 
will be glad to do my benevolence to make atone- 
ments and compremises between you."^ 

Pope changes the word as used in the above lines to 
"compromises," but it is probable that the Poet intended 
the word to be used as a blunder, as it is printed.® The 

' Bl. Com. 406, note. 

» 1 Archbold Pr. 234. 

3 1 Bl. Com. 349; 4 Bl. Com. 272; 3 Stephen, Com. 37. 

* Bouvler's Law. Diet. 

in 2' Henry IV, in speaking of the contempt committed upon 
the person of the Chief Justice, by the Prince of Wales, the 
Chief Justice said: 

"C/j. Jus. . . in the administration of his law, 
Whiles I was busy for the commonwealth, 
Vour highness pleased to forget my place. 
The majesty and power of law and justice, 
The image of the king, whom I presented. 
And struck me in my very seat of judgment." 

(Act V, Scene IL) 
Saturninus, in Titus Andronicus, thus delivers himself: "Sat. 
Was ever seen, an emperor of Rome, thus o'er borne, Troubled, 
confronted thus: and, for the extent of equal justice, us'd In 
such contempt?" (Act IV, Scene IV.) 

* Merry Wives of Windsor, Act I, Scene I. 

® Rolfe's Merry Wives of Windsor, 149, notes. 



30 THE LAW IN SHAKESPEARE. 

thought is, that the Parson, as an act of benevolence or 
charity, on his part, will use his good offices to bring about 
a settlement between Shallow and Falstaff of all differ- 
ences growing out of Falstaff's slandering the former. A 
compromise, is a legal contract whereby two parties by a 
mutual understanding settle and adjust a difference be- 
tween themselves.* 

Sec. 8. Right of Egress and Regress. — 

''Host. My hand, bully; thou shalt have egress and re- 
gress; said I well; and thy name shall be Brook. ".^ 

This was a promise of the right to go out and return, 
vouchsafed to one holding, by covenant, the right of egress 
and regress, at common law. 

The right guaranteed by the use of the words, ingress, 
egress and regress, in common law leases of real property 
or of the mines or precious metals therein, preserved to the 
lessee the privilege of entering, going upon and returning 
from the lands demised in the lease. ^ The words usually 
employed are ingress and egress, meaning the right to 
enter upon and go from the lands conveyed.* The use of 
the words, in the sense used in the above verse, however, 
is not inappropriate, as they embrace the right to go 
from, as well as to return upon the premises. 

1 Lawson on Contracts (3d ed.). 

2 Merry Wives of Windsor, Act II, Scene I. 

3 Bouvier, Law Diet., Atk. Conv. 

* White, Mines and Mining Remedies, Sec. 124. Without a spe- 
cial reservation of the right of ingress and egress, in a lease 
of minerals, in land, this easement attaches as a necessary inci- 
dent of the demise and the lessee would have a reasonable use 
of the surface and subsoil, as well as a right to enter upon and 
leave the premises to extract the minerals. Such easements 
would be held to be but incidental to the express grant in the 
lease. White, Mines & Mining Remedies, Sec. 124, p. 171. The 
duty of providing safe means of ingress and egress to and from 
mines, is held to be imposed by operation of law, on the em- 
ployer operating a mine and by many states in the United States, 
now, statutes have been passed on this subject. White, Personal 
Injuries in Mines, Sec. 27 and citations. 



THE LAW IN SHAKESPEARE. 31 

Sec. 9. Fee-simple — Fine and Recovery — Waste. — 
''Mrs. Page. The spirit of wantonness is, sure scared out of 
him; if tlie devil have him not in fee-simple, with 
fine and recovery, he will never, I think, in the way 
of waste, attempt us again. "^ 

The thought here expressed is, that unless the devil 
himself owned Falstaff, by the highest estate known to the 
law, by acknowledgment of record, in court, his punish- 
ment had been sufficient to prevent, or dissuade him from 
his desire to commit further spoliation. A fee simple 
estate is defined to be "a freehold estate of inheritance, 
free from conditions and of indefinite duration."- It is 
the highest estate known to the law and is absolute, so far 
as it is possible for one to possess an absolute right of 
property m lands.^ 

The common law proceeding by fine and recovery was 
an amicable proceeding in court, by which one of the par- 
ties litigant, acknowledged, of record, that the lands in 
controversy belonged absolutely to the other.* 

Waste is any unlawful act of spoliation or destruction 
done or permitted to lands or other corporeal heredita- 
ments, to the prejudice of the reversioner or lawful owner.^ 
It may consist in either diminishing its value, in increas- 
ing its burdens, or in destroying or changing the evi- 
dences of title to the inheritance.® Regarding the object 
of his passion, as the inheritance of her husband, it can 
not w^ell be doubted that if Falstaff had accomplished his 
purpose, the value of such "inheritance" would have been 
correspondingly diminished; her burdens increased and 
the rights of the husband violated. 

^ Merry Wives of Windsor, Act IV, Scene III. 

'Tiedeman, R. P. (3d ed.) 29; 2 Bl. Com. 106; 1 Preston, 
Est. 420; 1 Washburn, R. P. 51; Litt. Sec. 1. 

'Tiedeman, R. P. (3' ed.) Sec. 29; Plowd. 557; Atk. Conv. 
183; 2 Bl. Com. 106. 

* Bacon, Abr. Fine & Recoveries; Coke, Litt. 120; 2 Bl. Com. 

349. 

'Tiedeman, R. P. (3' ed.) Sec. 60; 4 Kent's Comm. 316; Coke, 
Litt. 53b; Bacon, Abr. Waste; 2 Rolle, Abr. 817. 

«2 Bl. Com. 281; Huntley vs. Russell, 12 Q. B. 588. 



32 THE LAW IN SHAKESPEARE. 

In Comedy of Errors, the following colloquy occurs between 
Dromio and Antipholus: "■Dro... There's no time for a man to re- 
cover his hair, that grows bald by nature. 

Ant. May he not do it by fine and recovery? 

Dro. Yes, to pay a fine for a peruke, and recover the lost hair 
of another man." (Act II, Scene II.) 

Commenting on this verse, Mr. Cushman K. Davis, in his 
"Law in Shakespeare," has this to say: "This is a lawyer's pun 
and would never have occurred to anyone but a lawyer. There 
is also here a very abstruse quibble in the use of the words, 're- 
cover the lost hair of another man,' for the effect of a fine and 
recovery was to bar not only the heirs upon whom the lands 
were entailed, but all the world." Davis' Law in Shakespeare 
(2nd ed.), p. 133. 

In King John (Act II, Scene I), Constance said to Elinor: 
"Draw those heaven-moving pearls from his poor eyes; which 
heaven shall take in nature of a fee." 

In Troilus and Cressida, Thersites speaks of the Fee-simple of 
the tetter, as follows: 

"Ther. . . incurable bond-ache, and the rivalled fee-simple 
of the tetter; take and take again, such preposterous discoveries." 

In delivering his curse upon Patroclus, Thersites intimates that 
he has the "tetter," or a disease of the skin, for life and as a 
hereditament, to transmit to his posterity, if he has any. In 
other words, he has such disease by the highest and best title, 
i. e., by a fee-simple holding. (Act V, Scene I.) 

In Romeo and Juliet, Benvolio and Mercutio speak of the fee- 
simple of the former's life, as follows: ''Ben. An I were so apt 
to quarrel as thou art, any man should buy the fee-simple of my 
life, for an hour and a quarter. 

Mer. The fee-simple. O simple." (Act III, Scene I.) 

Kent advises the King, in King Lear: "Kill thy physician, and 
the fee bestow upon the foul disease." (Act I, Scene I.) 

The Captain tells Hamlet, in referring to the war to recover 
the land of Fortinbras: 

"Cap. We go to gain a little patch of ground. 
That hath in it no profit but the name. 
To pay five ducats, five, I would not farm it; 
Nor will it yield to Norway, or the Pole, 
A ranker rate, should It be sold in fee." 

(Act IV, Scene IV.) 



THE LAW IN SHAKESPEARE. 33 

The maid described how she had given her lover the best she 
had, in A Lover's Complaint: 

"My woeful self, that did in freedom stand. 
And was my own fee-simple, not in part, 
"What with his art in youth and youth in art. 
Threw my affections in his charmed power. 
Reserved the stalk and gave him all my flower." 

(143, 147.) 



CHAPTER IV. 

"TWELFTH NIGHT." 

Sec. 10. Exceptions — Improper conduct. 

11. Proof — Admission against interest. 

12. Misprison. 

13. Sheriff's post. 

14. Misdemeanors. 

15. Grand-jury. 

16. Windy side of the law. 

17. Action of battery. 

18. Party plaintiff. 

Sec. 10. Exceptions — Improper conduct. — 

"Mar. By troth, Sir Toby, you must come in earlier o' 
nights; your cousin, my lady, takes great exceptions 
to your ill hours. 

Sir To. Why, let her except, before excepted. 

ilfar. Ay, but you must confine yourself within the mod- 
est limits of order."^ 

This verse refers to the method of trial adopted to pre- 
serve the errors of the trial court, for the review of the 
higher court. As errors occur — or a litigant fails to con- 
fine himself "within the modest limits of order," an ex- 
ception is noted on the records of the trial court, and, at 
the conclusion of the trial, or within a time fixed by the 
court, these various errors are presented and signed by the 
trial judge, as a bill of exceptions, upon which the 
errors of the trial court are reviewed on appeal.- Bills of 
exception were authorized by Statute^ in England, in an 
early day and the practice obtains in the United States 
to the present day. 

' Twelfth Night, Act I. Scene III. 
'8 East 280; Bouvier, Law Diet. 
^-Westm. 2nd (13 Edw. 1) c. 31. 

lago tells Roderigo, in Othello: "Give me thy hand, Roderigo: 
Thou hast taken against me, a most just exception; but, yet I 
protest, I have dealt most directly in thy affair." (Act IV, Scene II. ( 

(34) 



THE LAW IN SHAKESPEARE. 35 

Sec. 11. Proof— Admission against interest. — 

"OU. Make your proof. 

Clo. I must catechise you for it, madonna; good my 

mouse of virtue, answer me. 
Oil. Well, sir, for want of other idleness, I 'bide your 

proof. "^ 

Clo. Good madonna, why mourn'st thou? 
on. Good fool, for my brother's death. 
Ch. I think, his soul is in hell, madonna. 
Oh. I know his soul is in heaven, fool. 
Clo. The more fool you, madonna, to mourn for your 

brother's soul, being in heaven.— Take away the fool 

gentlemen."^ ' 

The proof by which the clown here establishes the fact 
attempted to be proven is by that method of proof known 
as securing an admission against interest. To prove a 
fact is to determine or establish, by competent evidence, 
that such fact exists or does not exist.- The proof ad- 
duced here comports to the proper method of establishing 
a fact in a court of justice, for after the premise and argu- 
ment of the fact to be established, the strongest proof is 
the admission against interest, for this kind of proof, be- 
cause it is against the interest of the party making the 
admission, carries the strongest probative force.^ After 
admitting that her brother's soul was in heaven, the con- 
clusion is drawn that none but a food, would mourn, and 
thus the fact is established that the mistress is a fool, by 
her own admission. 

* Twelfth Night. Act I, Scene V. 
'Ayliffe, Parerg. 442; Greenl. Evid. 
»Greenl. Evid. 

Flavius, on his return to Tlmon of Athens, with no funds, said 
to his lord, by way of further assurance of his failure to bor- 
row of his friends: "Flav. If you suspect my husbandry, or 
falsehood. Call me before the exactest auditors. And set me on 
the proof." (Act II, Scene II.) 

After he had been poisoned against his wife, by lago, Othello 
tells him: "By the world, I think my wife be honest, and think 
she is not; I think that thou art just, and think thou art not; 
I'll have some proof." (Act III, Scene III.) 



36 THE LAW IN SHAKESPEARE. 

Sec. 12. Misprison. — 

"Clo. Misprison in the highest degree; — Lady, cucullus 
non facit manachuTn; that's as much as to say, I wear 
not motley in my brain. Good madonna, give me 
leave to prove you a fool?"^ 

Misprison is a term used in the criminal law to signify 
all misdemeanors, not given some particular name by the 
law creating the offense.^ Misprisons are either negative, 
as where the commission of a crime is concealed,^ or posi- 
tive misprison, which is the commission of an offense not 
otherwise catalogued.* Misprisons positive are also de- 
nominated contempts or high misprisons,^ as referred to 
in this verse. 



* Twelfth Night, Act I, Scene V. 
^Coke, 3d Inst, 36. 

•1 East PI. Cr. 139; 1 Russell, Crimes, 43. 

• Bl. Com. 9. 

M Bl. Com. 126. 

The term, "misprison," as one most familiar to the Poet, is 
used in various places to indicate an offense, not otherwise classi- 
fied, as at law. Thus: 

"06e. What hast thou done? thou hast mistaken quite 
And laid the love-juice on some true-love's sight; 
Of thy misprison must perforce ensue. 
Some true-love turned, and not a false turn'd true." 

(Midsummer Night's Dream, Act III, Scene II.) 

"Misprison" is also used in Love's Labour's Lost, in the fol- 
lowing couplet: 

"Biron. A fever in your blood, why, then incision. 
Would let her out in saucers; Sweet misprison." 

(Act IV, Scene III.) 

The Earl of Northumberland is made to say in 1' Henry IV 
(Act I, Scene III): "North. . . . Either envy therefore, or 
misprison is guilty of this fault, and not my son." 

Speaking of the gift of his friend to himself, the Poet uses the 
word misprison, in the LXXXVII Sonnet: 

"So thy great gift, upon misprison growing. 
Comes home again, on better judgment making." (11, 12.) 



THE LAW IN SHAKESPEARE. 37 

Sec. 13. Sheriff's post. — 

*'Mal. ... he says, he'll stand at your door like 
a sheriff's post, and be the supporter to a bench, but 
he'll speak with you."^ 

Sheriffs and such public officers have to give notice of 
the proclamations and sales, under the process of the court, 
of which they are officers, and this gave rise, in ancient 
times, to the custom of such officers erecting a post, at the 
front door of their houses, upon which they usually posted 
one of these proclamations or advertisement of sales, or 
other legal process delivered to them for service by publi- 
cation. ^ As such ministerial officers supported the judg- 
ment seat, or "bench" by executing the decrees of the 
court, it is probable that this line means that the post^ 
used by the sheriff for this purpose, carried out and helped 
to execute the decrees of the court and in this manner 
"supported" the "bench." 

Sec. 14. Misdemeanor. — 

"Mai. Sir Toby, I must be round wuth you. My lady 
bade me tell you, that, though she harbours you as 
her kinsman, she's nothing allied to your disorders. 
If you can separate yourself and your misdemeanors, 
you are welcome to the house; if not, and it would 
please you to take leave of her, she is very willing to 
bid you farewell."^ 

The term "misdemeanor" is generally used in contra- 
distinction to felony, and it includes all the offenses known 
to the criminal law, inferior to the more important crimes, 
known as felonies.* All indictable offenses, not amount- 
ing to felonies, such as libels, assaults and batteries, nui- 
sances, riots and such inferior offenses, are classed as mis- 



» Twelfth Night, Act I, Scene V. 

' Rolfe's Twelfth Night, p. 159, notes. 

3 Twelfth Night, Act II, Scene III. 

* Sherwood's Criminal Law; 4 Bl. Com. 5. 



•38 THE LAW IN SHAKESPEARE. 

demeanors, punishable by fine or imprisonment in jail, 
as distinguished from the more important crimes such as 
murder, arson, forgery, and the like crimes, punishable 
by death or a term in the penitentiary.* 

Sec. 15. Grand-jury. — 

"Fah. I will prove it legitimate, sir, upon the oaths of 

judgment and reason. 
Sir To. And they have been grand-jurymen since before 

Noah was a sailor." 2 

As grand-jurymen sit upon the different offenses known 
to the law and indict or exonerate citizens for charges 
brought against them, the proper discharge of such duties, 
requires both reason and sound judgment. Hence the 
comparison made, that reason and judgment have been 
grand-jurymen since before Noah was a sailor. Of course 
the institution does not date to any such prehistoric times, 
but there is reason to believe that this institution existed 
among the Saxons^ and it is certain that in the 12th cen- 
tury (by Statute 10' Hen. II)* if the institution did not 
exist before, it was established in England, since which 
time it has existed uninterruptedly.^ 



1 Bishop's Cr. Law; 4 Bl. Com. 5. 

^ Twplfth Night, Act III, Scene II. 

^Crabb, Eng. Law, 35. 

* Enacted in 1164. 

fi 4 Bl. Comm. 302; 2 Russell, Crimes, 616. 

In V Henry IV, Falstaff thus addresses the Travelers: "Fal. 
You are grand-jurors, are ye? We'll jure ye, i'faith." (Act II, 
Scene II.) 

Timon of Athens, makes the leopard spots jurors on the life 
of the leopard, when the lion is near. He says to Apemantus: 
"■Tim. Wert thou a leopard, thou wert german to the lion, and 
the spots of thy kindred were jurors on thy life; all thy safety 
were remotion." (Act IV, Scene III.) 



THE LAW IN SHAKESPEARE. 39 

Sec. 16. Windy side of the law. — 

"Sir To. I will waylay thee going home ; where, if it be 

thy chance to kill me, — 
Fab. Good. 

Sir To. Thou killest me like a rogue and a villain. 
Fab. Still you keep o' the windy side of the law : good."^ 

The thought here expressed is, although the speaker 
should "lie in wait" and thus show premeditation, look- 
ing to the physical injury of Viola, still he would keep 
clear of the law, because, instead of making any threat to 
cause any bodily harm, his purpose was not so expressed 
in waiting for him. In other words, while there was a 
"lying in wait," there was a total absence of any premedi- 
tation to inflict bodily harm, hence the speaker kept next 
the wind, or on the windward side of the law, meaning 
that he thereby adopted precautionary measures for his 
security.^ 



> Twelfth Night, Act III. Scene IV. 

For distinction between premeditation and simply lying in 
wait, see Dane, Abr, But lying in wait is usually evidence of 
premeditation. 

= Webster, Dictionary. See Rolfe's Twelfth Night, p. 197, notes. 

In Romeo and Juliet, the servants of Capulet, before provoking 
a quarrel with those of Montague, discuss'd how the law could be 
placed on their side and Sampson said: "Let us take the law on 
our sides; let them begin." (Act I, Scene I.) 

And when Abram bit his thumb at them, Sampson asked: "Is 
the law on our side, if I say — ay?" (idem). 

Peter tells the nurse and Romeo, in Romeo and Juliet: "I 
dare draw as soon as another man, if I see occasion in a good 
quarrel, and the law on my side." (Act II, Scene IV.) 

In Gannon vs. Pauk, (200 Mo. p. 86) Judge Lamm, construes the 
"windy side" of the law, as the cold side, when he observes: 
"Thei'e is a 'windy,' that is, a cold side of the law, now as form- 
erly (Twelfth Night, Act III, Scene IV.) and the law turns a cold 
face (a windy side) to perpetuities and the tying up of landed 
properties by entailment." 



40 THE LAW IN SHAKESPEARE. 

Sec. 17. Action of battery. — 

''Sir And. Nay, let him alone, I'll go another way to 
work with him ; I'll have an action of battery against 
him, if there be any law in Illyria; though I struck 
him first, yet its no matter for that."^ 

A battery is any unlawful beating or other wrongful 
physical violence inflicted upon a person, without his con- 
sent.^ A battery is usually justifiable in the necessary de- 
fense of one's person against the assaults of his assailant, 
but the force used must be only such as is necessary to 
repel the attack made.^ Force may be used only to avert 
an impending evil and to prevent a person from being 
overwhelmed, but not as a punishment or by way of 
retaliation for an injurious assault.* Any addition of spe- 
cific ultimate wrong or means by which additional danger 
is inflicted generally is held to increase the ofifense of bat- 
tery,^ hence, the conclusion of the speaker, "though I 
struck him first, yet its no matter," since in strict legal 
aspect, the previous treatment would not have justified the 
punishment subsequently inflicted and an action for dam- 
ages would lie therefor. 



^Twelfth Night, Act IV, Scene I. 

*2 Bishop's Cr. Law, Sec. 62. 

•2 Bishop's Cr. Law, 561. 

* Ante. idem. Strange, 593. 

" 2 Bishop's Cr. Proc. Sees. 64, 65. 

Enobarbus is made to say, in Antony and Cleopatra: 
"Eno. . . . All take hands. — 

Make battery to our ears with the loud music: — 
The while, I'll place you." (Act II, Scene VI.) 
Lysimachus, in Pericles, Prince of Tyre, speaking of the 
charms of Marina, asserts that by her sweet harmony she would 
allure and "make a battery through his deafen'd parts." (Act 
V, Scene I.) 

Imogen threatens lachimo, on his intemperate proposal to her, 
in Cymbeline, as follows: 

*'Imo. The king, my father, shall be made acquainted of thy 
assault." (Act I, Scene VII.) 



THE LAW IN SHAKESPEARE. 41 

Sec. 18. Party plaintiff. — 

"O^i . . . , Pry'thee be content ; 

This practice hath most shrewdly passed upon thee; 

But, when we know the grounds and authors of it, 

Thou shalt be both the plaintiff and the judge 

Of thine own cause. "^ 

Of course this would be an unheard of legal proceeding, 
wherein a party was also a judge in the cause, for it would 
lack the disinterested element which must always charac- 
terize the judge of any controversy. 

A party plaintiff in a personal action is one who seeks a 
remedy for an injury to his rights.^ After such person 
has been once named in the pleadings, it is proper to 
thereafter refer to him merely as the "plaintiff," as the 
reference is here made.^ 



In King John, in trying to dissuade the armies from battle, 
the Citizen thus addressed the officers present: "This union can 
do more than battery can. To our fast-closed gates, for at this 
match," etc. (Act II, Scene I.) 

In Antony and Cleopatra, Antony tells Eros: 
"Off. pluck off: — 

The seven-fold shield of Ajax cannot keep 
The battery from my heart." (Act IV, Scene XIV.) 
Adonis is made to say to Venus, in Venus and Adonis: "Dis- 
miss your vows; your feigned tears, your flattery; For where a 
heart is hard they make no battery." (425, 426.) 

In A Lover's Complaint, the Poet describes the "fickle maid, 
full pale," who narrated the "sad-tun'd tale"; 

"Sometimes her level'd eyes their carriage ride. 
As they did battery to the spheres intend." (22, 23.) 
The maid, in A Lover's Complaint, described how her lover had 
woo'd her, as a supplicant, whose sighs extended, "To leave the 
battery" that her heart made against his. (276, 277.) 

* Twelfth Night, Act V, Scene I. 
»3 Bl. Com. 25; 1 Chitty, PI. 
»1 Chitty, PI. (Gr. Ed.) 266. 



CHAPTER V. 

"MEASURE FOR MEASURE." 
Sec. 19. Termes of the Law. 

20. Dead Laws. 

21. Custom shaping Laws. 

22. Frailty of all laws — Especially jury system. 

23. Action of Slander. 

24. Prostitution before the Law. 

25. Sentence. 

26. Plea for Pardon. 

27. Punishment for Seduction, by Venetian Law. 

28. The severe Judge. 

29. Common Law marriage contract. ^ 

30. Plea for Justice. 

31. The Equality of Justice. 

32. The Law a gazing-stock, when not enforced. 

33. Confession of guilt. 

34. Loyalty of Attorney. 

35. Intent, distinguished from Wrongful Act. 

36. Breach of Promise. 

37. Punishment by marriage to Prostitute. 

Sec. 19. Terms of the law.— 

"Duke. . . . The nature of our people, 
Our city's institutions, and the terms 
For common justice, you're as pregnant in 
As art and practice hath enriched any 
That we remember."^ 

By "terms for common justice," the Poet no doubt 
refers to the technical language of the law, used by the 
courts of his time. 

During the reign of Henry VIH, in 1527, "Les Termes 
de la Ley," a scientific old law book, written by John Ras- 
tell in French, and translated by his son, William, ap- 
peared and this work contained an exposition of the 
"terms" of the law then most commonly in use.- It is 

^ Measure for Measure, Act I, Scene I. 

=■ There seems to be some doubt as to whether the father, John, 
or the son William, wrote this work. Coke, Wood and others, 
attributed it to the son, while Bishop Tanner, Bale and others 

(A2) 



THE LAW IN SHAKESPEARE. 43 

possible that the Poet intended to refer to this old work, 
in these lines, spoken by the 'Duke. ^ 

Sec. 20. Dead laws.— 

"Duke. We have strict statutes and most biting laws, 
(The needful bits and curbs for headstrong steeds) 
Which for these fourteen years we have let sleep, 
Even like an o'ergrown lion in a cave, 
That goes not out to prey: now, as fond fathers, 
Having bound up the threat'ning twigs of birch, 
Only to stick it in their children's sight. 
For terror, not to use; in time the rod, 
Becomes more mocked than feared: so our decrees, 
Dead to infliction, to themselves are dead; 
PiXid liberty plucks justice by the nose ; 
The baby beats the nurse, and quite athwart 
Goes all decorum."- 

This verse shows a deep insight into the science of laws 
and the well-known fact is recognized that a failure to 
enforce the laws that exist, brings about chaos in the 
State. The poet also seems possessed of the deeper in- 
sight, that laws are necessarily those legal principles and 
rules which are recognized by the governing power of the 
State, whether same are enforced in all cases or not; for 
the law is not the less a law, because the community sees 
fit not to enforce it, when it continues to be recognized 
by the governing body as a law of that community. And, 
as instanced in this play, even a departure from the en- 
forcement of the strict letter of the law, by the governing 
body, itself, does not repeal the law, but it can be enforced, 
so long as it stands unrepealed. ^ 

claimed it for the father. As originally published the title page 
of this work was as follows: ''Expositiones Terminorum Legum 
Anglorum, et Natura Brevium, cum diversis Casibus, Regulis, et 
Fundamentis Legum tarn de Libris Magistri Littletoni quam de 
aliis Legum Libris collectis," etc., but the text was in French. 
IV Reeve's History Eng. Law, p. 565. 

' Rolfe's Measure for Measure, p. 151, notes. 
' Measure for Measure, Act I, Scene III. 
' Montesquieu, Esprit des Lois, b. 1., c. 1. 



44 THE LAW IN SHAKESPEARE. 

Sec. 21. Custom shaping laws. — 

"Ang. We must not make a scarecrow of the law 
Setting it up to fear the birds of prey, 
And let it keep one shape, till custom make it 
Their perch, and not their terror."^ 

Custom is such a usage, as by common consent and 
uniform praclice has become the law of a place or of a 
given subject-matter.- That custom may not only change 
or alter law, bat in the absence of law, that it may be 
crystallized into law, is a well recognized fact, which the 
English common law exemplifies. The common law, in 
fact, was made up of customs which had existed from 
time immemorial, or for such length of time that the 
''memory of man runneth not to the contrary."^ General 
customs apply generally to a whole country and consti- 
tute general laws, while special customs apply only to 
special localities, or to special trades or vocations, such as 
the mining customs of the western states, which consti- 
tute some of our American common law.* A custom, 
however, cannot generally be recognized, if it is in the 
face of a well-established law, for not only must it be a 
reasonable custom, but one that is not illegal, to be given 
effect when invoked in court.^ 

* Measure for Measure, Act II, Scene I. 

- Bouvier's Law Diet. 

»1 Bl. Comm. 76. 

"White, Mines & Min. Rem., Sec. 69. 

^ Ante idem. Sec. 72. 

Lord Sands said, in King Henry VIII: "Sands. New customs. 

though they be never so ridiculous, nay, let them be unmanly, 

yet are follow'd." (Act I, Scene III.) 

Ruminating upon the custom which compels him to seek the 

support of the citizens for his preferment, Coriolanus said: 

"Cor. Custom calls me to't; 

What custom wills, in all things, should we do't. 

The dust on antique time would lie unswept, 

And mountainous error be too highly heap'd 

For truth to over-peer." (Act II, Scene III.) 



THE LAW IN SHAKESPEARE. 45 

Sec. 22. Frailty of all laws — Especially jury system. — 

"Ang. I not deny, 

The jury passing on the prisoner's life, 
May, in the sworn twelve, have a thief or two, 
Guiltier than him they try: what's open made to jus- 
tice, 
That justice seizes. What know the laws, 
That thieves do pass on thieves? 'Tis very pregnant, 
The jewel that we find we stoop and take it, 
Because we see it; but what we do not see, 
"We tread upon and never think of it."^ 

The substantive law is formed of customs, acts and 
adjudications as the rights to be passed upon arise. For 
years, many rights were overlooked, because of the uni- 
versality of the law, to give relief in cases wherein equity 
now exercises jurisdiction. The remedial procedure, be- 
ing dependent wholly on man, is necessarily more or 
less imperfect and this objection is frequently urged to 
the jury system, which this verse notices. But imperfect 
as it is, no institution has ever been found to improve 
upon it, in the trial of questions of fact. It dates from 
an early period in English history and was a mode of 
administering justice under the feudal institutions of 
France, Germany and other European countries.^ It was 
perpetuated in England by Magna Charta and is guaran- 
teed in all the states of the United States.^ 



The Chorus, in the character of Gower, in Pericles, Prince of 
Tyre, thus refers to custom: "By custom, what they did begin, 
Was, with long use, account no sin." (Act I, Pro.) 

And Othello speaks of "the tyrant custom," which "hath made 
the flinty and steel couch of war, My thrice-driven bed of down." 
(Act I, Scene III.) 

' Measure for Measure, Act II, Scene I. 

-I Reeves, Hist. Eng. Law, 23, 84; Bracton, 155; Glanville, c. 9. 

^3 Bl. Comm. 349; Reeves, Hist. Eng. Law, supra. 



46 THE LAW IN SHAKESPEARE. 

Sec. 23. Action of slander. — 

"Elh. Prove this, thou wicked Hannibal, or I'll have 

mine action of battery on thee. 
Escal. If he took you a box o' the ear, you might have 

your action of slander too."^ 

This is satire, of course, or irony, for if an action of 
battery would lie for a slander, then, by a parity of rea- 
soning, the conclusion is reached, that an action of slan- 
der would lie for a battery. As distinguished from a libel, 
which is written, slander is generally defined as spoken 
words, derogatory of the character of a person.^ An ac- 
tion of slander will generally lie for any words spoken of 
another which impute to him the commission of a crime, 
involving moral turpitude,^ so if the construction placed 
upon the words spoken here, had been the proper one, 
since an offense against the law was charged, an action 
of slander could have been maintained, not one of bat- 
tery, as the Poet clearly shows. 

^Measure for Measure, Act II, Scene I. 
2 Heard, Libel & Slan. Sec. 8. 
« Heard, Libel & Slan. Sec. 24. 

In King John (Act II, Scene I) the following occurs in the 
colloquy between Constance and Elinor: "Eli. Thou monstrous 
slanderer of heaven and earth. 

Const. Thou monstrous injurer of heaven and earth, call not 
me slanderer." 

In King Richard II (Act V, Scene V) Bolingbroke thus replies 
to Exton, on learning of King Richard's death: 
"Boling. Exton, I thank thee not; for thou hast wrought 

A deed of slander with thy fatal hand, 

Upon my head, and all this famous land." 
In King Richard II, Mowbray replies to Bolingbroke (Act I. 
Scene I) : 
"Nor. 0, let my sovereign turn away his face. 

And bid his ears a little while be deaf, 

Till I have told this slander of his blood, 

How God and good men, hate so foul a liar." 



THE LAW IN SHAKESPEARE. 47 

Sec. 24. Prostitution before the law. — 

"Escal. How would you live, Pompey? by being a bawd? 

What do you think of the trade, Pompey? is it a 

lawful trade? 
Clo. If the law would allow it, sir. 
Escal. But the law will not allow it, Pompey ; nor it shall 

not be allowed in Vienna. 
Clo. Does your worship mean to geld and spay all the 

youth in the city? 
Escal. No, Pompey. 
Clo. Truly, sir, in my poor opinion, they will to't then : 

if your worship will take order for the draps and 

the knaves, you need not to fear the bawds. 



Prince Henry is quoted as saying to the Hostess, in 1' Henry 
IV: "P. Hen. Thou sayest true, hostess; and he slanders thee 
most grossly." (Act III, Scene III.) 

The wicked Margaret is made to say, in defense of Suffolk, 
when charged with Gloster's death, in 2' Henry VI: "Q. Mar. 
. . It may be judg'd, I made the duke away: So shall my 
name with slanders tongue be wounded, And princes courts be 
fill'd with my reproach." (Act III, Scene II.) 

Suffolk thus replies to his accusers, in 2' Henry VI: "Sicff. 
I wear no knife, to slaughter sleeping men; but here's a venge- 
ful sword, rusted with ease, That shall be scoured in his ran- 
courous heart, That slanders me with murder's crimson badge." 
(Act III, Scene II.) 

And Warwick, suggests the proprieties of the situation to 
Queen Margaret in her defense of Suffolk, as follows: ''War. 
Madam, be still; with reverence, may I say; For every word, you 
speak in his behalf, Is slander to your royal dignity." (2' 
Henry VI, Act III, Scene II.) 

Excusing himself for his attempt to murder Margaret, Rich- 
ard III, explains to Lady Anne: "Glo. I was provoked by her 
sland'rous tongue. That laid their guilt upon my guiltless shoul- 
ders." (Richard III, Act I, Scene II.) 

The king refers to slander thus, in Hamlet: ". . haply, 
slander, whose whisper o'er the world's diameter. As level as the 
cannon to his blank. Transports his poison'd shot — may miss our 
name, and hit the woundless air." (Act IV, Scene I.) 

And Othello tells lago, after he has aroused his jealousy of 
his wife: "If thou dost slander her and torture me. Never pray 
more: abandon all remorse." (Act III, Scene III.) 



48 THE LAW IN SHAKESPEARE. 

Escal. There are pretty orders beginning, I can tell you : 
it is but heading and hanging. 

Clo. If you head and hang all that offend that way but 
for ten years together, you'll be glad to give out a 
commission for more heads. If this law hold in 
Vienna ten years, I'll rent the fairest house in it, 
after three pence a day : If you live to see this come 
to pass, say Pompey told you so."^ 

Keeping a bawdy house was an offense both at common 
law and by statute. At common law, the offense was 
indictable as a common nuisance and it clearly involves 
moral turpitude.- The reasoning of the Clown, in de- 
fense of the practice, because of the prevalency of the 
offense, of course is not sound, for the same argument 
might be used to defend stealing or any other crime, if 
prevalent. 

Sec. 25. Sentence. — 

'Trov. Is it your will Claudio shall die tomorrow? 
Ang. Did I not tell thee, yea? Had'st thou not order? 

Why dost thou ask again? 
Prov. Lest I might be too rash: 

Under your good correction, I have seen, 

When, after execution, judgment hath 

Eepented o'er his doom."' 

Execution, in criminal law, is putting a convict to 
death, agreeably to law, in pursuance of a sentence of the 
court.'' After the sentence of the law is put in force, by 
an execution, of course it would be too late to correct any 
mistake, hence the suggestion to make any corrections 
before execution performed. 

* Measure for Measure, Act II, Scene I. 
*5 M. & W. Exch. 249. 
8 Measure for Measure, Act II, Scene II. 
■» 4 Bl. Comm. 403; 3 Bl. Comm. 412. 

In another play, the following sentence is pronounced: "King. 
Sir, I will pronounce your sentence; You shall fast a week with 
bran and water." (Love's Labour's Lost, Act I, Scene I.) 



THE LAW IN SHAKESPEARE. 49 

Sec. 26. Plea for pardon. — 

"Aug. He's sentenced; 'tis too late. 

Isah. Too late? why, no; I, that do speak a word, 
May call it back again: Well believe this, 
No ceremony to great ones 'longs. 
Not the king's crown, nor the deputed sword, 
The marshal's truncheon, nor the judge's robe, 
Become them with one-half so good a grace. 
As mercy does. If he had been as you. 
And you as he, you would have slipt like him; 
But he, like you, would not have been so stern. 

Ang. Your brother is a forfeit of the law, 
And you but waste your words. 



Speaking of Bolingbroke, King Richard II, said: 
"5:. Rich. O God: O God: 

Ttiat e're this tongue of mine, 
That laid the sentence of dread banishmeat 
On yon proud man, should take it off again 
With words of sooth." (Act III. Scene III.) 

After his exile, Norfolk said to King Richard II: 
*'Nor. A heavy sentence, my most sovereign liege. 
And all unlocked for from your highness mouth." 

(Act I, Scene III.) 
The Chief Justice explains to Henry V, how he had enforced 
the law, during his father's reign, and then concludes: 
"Ch. Jus. . . . After this cold considerance, sentence me." 

(2' Hen. y IV, Act V, Scene II.) 
King Henry V said to Sir Thomas Grey, after discovery of 
his treason: 

"K. Hen. God quit you, in his mercy. Hear your sentence." 

(Act II, Scene II.) 
Brabantio, on the loss of his daughter to the Moor, Othello, 
under the Duke's decision, said: 

"He bears the sentence well that nothing bears. 
But the free comfort which from thence he hears: 
But he bears both the sentence and the sorrow, 
That, to pay grief, must of poor patience borrow." 

(Act I, Scene III.) 
Tarquin lulls his conscience to rest with the philosophy that 
"Who fears a sentence or an old man's saw, 
Shall by a painted cloth be kept in awe." 

(Rape of Lucrece, 244, 245.) 



50 THE LAW IN SHAKESPEARE. 

I sab. Alas, Alas: 

Why, all the souls that were, were forfeit once: 
And he that might the vantage best have took. 
Found out the remedy: How would you be, 
If he, which is the top of judgment, should 
But judge 5^ou as you are? O, think on that; 
And mercy then will breath within your lips. 
Like man new made. 

Ang. Be you content, fair maid: 

It is the law, not I, condemns your brother: 

Were he my kinsman, brother or my son, 

It should be thus with him ; — He must die to-morrow. 

Isab. To-morrow? 0, that's sudden; Spare him, spare him. 
He's not prepared for death: Even for our kitchens. 
We kill the fowl of season; shall we serve heaven 
With less respect than we do minister 
To our gross selves? Good, good, my lord,bethink you? 
Who is it that hath died for this offense? 
There's many have committed it. 

Ang. The law hath not been dead, though it hath slept: 
Those many had not dared to do that evil. 
If the first man that did the edict infringe, 
Had answered for his deed: now, 'tis awake. 



Isab. Yet show some pity. 

Ang. I show it most of all, when I show justice; 
For then I pity those I do not know, 
Which a dismiss'd offense would after gall: 
And do him right that, answering one foul wrong, 
Lives not to act another. Be satisfied; 
Your brother dies to-morrow : be content. 

Isab. So you must be the first, that gives this sentence? 
And he, that suffers: O, it is excellent 
To have a giant's strength ; but it is tyrannous 
To use it like a giant. 
Could great men thunder, 

As Jove himself does, Jove would ne'er be quiet, 
For every pelting, petty officer, 
Would use his heaven for thunder ; nothing but 

thunder. — 
Merciful heaven: 

Thou rather, with thy sharp and sulphurous bolt, 
Split'st the unwedgeable and gnarled oak, 
Than the soft myrtle : — 0, but man, proud man ; 
Drest in a little brief authority; 



THE LAW IN SHAKESPEARE. 51 

Most ignorant of what he 's most assured, 
His glassy essence, — like an angry ape, 
Plays such fantastic tricks before high heaven, 
As make the angels weep: who, with our spleens, 
Would all themselves laugh mortal. 

••••■•■•••a 

We cannot weigh our brother, with ourself : 
Great men may jest with saints : 'tis wit in them ; 
But, in less, foul profanation. 

Ang. Why do you put these sayings upon me? 

Isab. Because authority, though it err like others, 
Hath yet a kind of medicine in itself, 
That skims the vice o' the top ; Go to your bosom ; 
Knock there ; and ask your heart, what it doth know 
That's like my brother's fault: if it confess 
A natural guiltiness, such as is his, 
Let it not sound a thought upon your tongue 
Against my brother's life."^ 

This colloquy denotes a very accurate knowledge of the 
underlying principle of the pardoning power and that it 
is essentially an act of grace, proceeding from the power 
intrusted with the execution of the laws, which exempts 
the particular individual receiving the pardon from the 
punishment the law prescribes for the crime committed. - 
As all pardons are necessarily in derogation of law, if the 
pardon is equitable, the law is bad, since good laws should 
be rigidly enforced and violations thereof ought not to be 
condoned or excused. But back of this, as human na- 
ture is frail, at best, the pardoning power is recognized, 
in order to prevent injustice, or to show mercy, in given 
cases, when to permit the law to be enforced would entail 
injustice.^ That the Poet had a clear and accurate un- 
derstanding of this reason for the lodgment of the power 
invoked by Isabella cannot be doubted, after a perusal of 
this play. 

* Measure for Measure, Act II, Scene II. 
= 7 Pet. 160. 
•Bouvier's Law Diet. 

Referring to the pardoning power, as an act of clemency, the 
Poet, in Comedy of Errors (Act I, Scene I) makes the Duke say: 



52 THE LAW IN SHAKESPEARE. 

Sec. 27. Punishment for seduction by Venetian law. — 

"'Duke. . . Your partner, as I hear, must die to- 
morrow, 
And I am going with instruction to him. 
Grace go with you. Benedicite. 



"Duke. But, though thou art adjudged to the death, 

ABd passed sentence may not be recalled. 

But to our honour's great disparagement. 

Yet will I favor thee in what I can." 
In King Richard II, the Duchess of York, pleading for the life 
of her son, to Bolingbroke, is made to say: 
"DucJi. Nay, do not say, — ^stand up; 

But, pardon, first; and afterwards, stand up. 

And If I were thy nurse, thy tongue to teach. 

Pardon — should be the first word of thy speech. 

I never longed to hear a word till now; 

Say — pardon, king; let pity teach thee how; 

The word is short, but not so short, as sweet; 

No word like pardon, for king's mouth's so meet." 

(Act V, Scene III.) 

After discovery of his treason, the Earl of Cambridge, said to 
King Henry V: "Cam. . . God be thanked for prevention; 
which I, in sufferance heartily will rejoice, beseeching God and 
you, to pardon me." (Act II, Scene II.) 

In replying to Stanley's plea for pardon, for his servant. King 
Edward said, in King Richard III: "iT. Edw. . . when your 
carters, or your waiting-vassals, Have done a drunken slaughter, 
and defac'd The precious image of our dear Redeemer, You 
straight are on your knees for pardon, pardon; And I, unjustly, 
too, must grant it." {Act II, Scene I.) 

Replying to the good offices of the King, as conveyed by Capu- 
cius, on her death bed. Queen Katherine said, in King Henry VIII: 
"^. Kath. O my good lord, that comfort comes too late; 'tis 
like a pardon after execution." (Act IV, Scene I.) 

In his death struggle Antony said to Cleopatra: "Ant. . . 
I will o'ertake thee, Cleopatra, and weep for my pardon." (Act 
IV, Scene XII.) 

Reflecting upon his own guilt the King observes, in Hamlet: 
"King. May one be pardon'd and retain the offence?" (Act III, 
Scene III.) 



THE LAW IN SHAKESPEARE. 53 

Juliet. Must die to-morrow: O injurious law, 
That respites me a life whose very comfort 
Is still a dying horror."^ 

It is written that the law in question, as presented in the 
old tale, from which this play is talven,- provided that the 
offender ''should lose his head, and the woman offender 
should ever after be infamously noted."^ It will thus be 
seen that this punishment affords but little consolation to 
the injured party, as the future life would be a "com- 
fort," but still "a dying horror," 

Sec. 28. The severe judge. — 

"Escal. You have paid the heavens your function, and 
the prisoner the very debt of your calling. I have 
laboured for the poor gentleman, to the extremest 
shore of my modesty; but my brother justice have 
I found so severe, that he hath forced me to tell him, 
he is indeed — justice. 

Duke. If his own life answers the straitness of his pro- 
ceeding it shall become him well; wherein, if he 
chance to fail, he hath sentenced himself,"* 

"Justice" was a title given, in England, to the judges of 
the common-law courts,^ and the same title is used in the 
United States, to indicate the presiding officers of such 
courts in the various State and Federal tribunals. It is 
a customary form to refer to an associate justice of such 
courts as "my brother justice." 

"The straitness of his proceedings," refers to the 
details of the mode of carrying on the case against 
Claudio. "Proceeding" at common law, was the regular 
mode of carrying on a lawsuit.* 

^Measure for Measure, Act II, Scene III. 

=■ Hecatommitlii, of Giraldi Cinthio, published in Venice, in 1566. 

• Rolfe's Measure for Measure, p. 174, notes. 

* Measure for Measure, Act III, Scene IL 

°Anc. Lav.s and Inst, of Eng.; Coke, Litt, 71b; Leges Hen. I, 
Sees. 24, 63. 
•Bouvier, Law Diet. 



54 THE LAW IN SHAKESPEARE: 

Sec. 29. Common law marriage contract. — 

"Duke. Nor, gentle daughter, fear you not at all : 
He is your husband, on a pre-contract: 
To bring you thus together, 'tis no sin ; 
Sith that the justice of your title to him 
Doth flourish the deceit. Come, let us go; 
Our corn's to reap, for yet our tithe's to sow."^ 

This verse treats the party to a "pre-contract" of mar- 
riage, after cohabitation as the lawful wife of the other 
contracting party and this was strictly in accordance with 
the common law. At common law no form of contract, 
nor was any ceremony essential to constitute the relation, 
but mutual assent to the relation of husband and wife 
followed with cohabitation, in reliance thereon, was suf- 
ficient to make a man and woman husband and wife.^ 
But it may be doubted if a cohabitation, procured by false 
personation of another, would be such consummation of 
the contract as to consummate the relation,^ in the ab- 
sence of a decree by such authority as backed up this 
intrigue or the use of such arbitrary force as made the 
recognition of the contract afterwards certain. 

The use of the term, "pre-contract," as remarked by Mr. 
Davis,* "shows" that the distinction between marriage 
per verba de presenti, and that per verba de fuhtro "was 
plainly drawn in Shakespeare's mind." 

The following occurs in 1' Henry IV, between Falstaff and 
Prince Henry: "Fal. Shall I? O rare: By the lord I'll be a 
brave judge. P. Hen. Thou judgest false already; I mean, thou 
Shalt have the hanging of thieves and so become a rare hang- 
man." (Act I, Scene II.) 

Speaking of the Justice's duties, among those of man, whom 
heaven hath divided into various functions, the Archbishop of 
Canterbury, in Henry V, said: "Cant. The sad ey'd justice, with 
his surly hum, delivering o'er to executors pale, the lazy yawning 
drone." (Act I, Scene II.) 

* Measure for Measure, Act IV, Scene I. 
^2 Roper, Husb. & Wife, 445, 475. 

MO Clark & F. Hou. L. 534. 

* Davis, Law in Shakespeare, 70. 



THE LAW IN SHAKESPEARE. 55 

Sec. 30. Plea for justice. — 

"Isab. Justice, 0, royal Duke; Vail your regard 
Upon a wrong'd, I'd fain have said, a maid; 
O worthy prince, dishonor not your eye 
By throwing it on any other object. 
Till you have heard me in my true complaint, 
And give me justice, justice, justice, justice."^ 

Mr. Webster once said: "Justice, sir, is the great inter- 
est of man on earth."- To insure justice, is one of the 
main objects of all social compacts and to come nearer the 
standards by which it may be realized, is the pride of all 
civilizations. Institutions for the administration of jus- 
tice have now reached the greatest perfection that the 
world has ever seen, and the broad, beneficent idea of 
"equal and exact justice, to all men, of whatever state or 
persuasion, religious or political," proclaimed by one of 
the greatest of the architects of our own free government, 
as a proper gauge for the rights of man, has become the 
guiding star by all liberty-loving people of the world. 
Justice is defined as the "Constant and perpetual will to 
render unto every man his due."^ Commutative justice 
is the virtue of rendering unto every man that which be- 
longs to him, as nearly as may be; to make an equality 
between the parties, to the end that no one may be the 
gainer by another's loss.* Distributive Justice consists in 
distributing rewards and punishments to each one, accord- 
ing to his merits, so that neither equal persons have un- 
equal things, nor unequal persons things that are equal.^ 
Justice is also said to be exterior and interior, the former 
being the object of jurisprudence and the latter the object 
of morality alone.® But in the broadest sense, it is a 
simple rule of right, with the object of giving every one 

^ Measure for Measure, Act V, Scene I. 

^^See, Judiciary, &c., Proc. 24th Meeting Mo. Bar Ass'n. 

'Justinian, Inst., b. 1, tit. 1; Coke, 2 Inst. 56. 

* Toullier, Droit, Civ. Fr. tit. prel. n. 5. 

^ Ante, idem. 

« Droit, Civ. Fr. tit. prel. n. 6, 7. 



56 THE LAW IN SHAKESPEARE. 

his own. Isabella, here, sought her own and in so seek- 
ing sought but simple justice. Her plea therefor is cer- 
tainly a touching appeal, calculated to move the hardest 
heart in favor of the virtue craved. 

Sec. 31. The equality of justice. — 

"Duke. The very mercy of the law cries out, 
Most audible, even from his proper tongue, 
An Angeh jor Claudio, death for death, 
Haste still pays haste, and leisure answers leisure; 
Like doth quit like, and Measure still for Measure. 
Then, Angelo, thy fault's thus manifested: 
Which, though thou would'st deny, denies thee van- 
tage."^ 

As distributive justice contemplates the distribution of 
rewards and punishments to each person, according to his 

In Merchant of Venice (Act II, Scene I) the Jew is ridiculed, 

for seeking justice, as follows: 

"Salan. I never heard a passion so confused. 
So strange, outrageous and so variable. 
As the dog Jew did utter in the streets: 
My daughter: — my ducats: — my daughter: 
Fled with a Christian? — my Christian ducats: 
Justice: the law: my ducats and my daughter: 
A sealed dag, two sealed bags of ducats, 
Of double ducats, stoVn from me by my daughter: 
And jewels; two stones, ttco rich and precious stones, 
StoVn by my daughter: — Justice: find the girl.'' 

Antipholus prays for justice from the Duke, in Comedy of 
Errors, as follows: 

"Ant. Justice, most gracious Duke, oh, grant me justice: 
Even for the service that long since I did thee. 
When I bestrid thee in the wars, and took 
Deep scars to save thy life; even for the blood 
That then I lost for thee, now grant me justice." 

(Act V, Scene I.) 
Lady Capulet begs for justice, in asking for Romeo's death, 
in Romeo and Juliet, for the killing of Tybalt, as follows: 
"La. Cap. I beg for justice, which thou, prince, must give; 
Romeo slew Tybalt, Romeo must not live." (Act III, Scene. 

* Measure for Measure, Act V, Scene I. 



THE LAW IN SHAKESPEARE. 57 

own deserts, so that persons similarly situated shall have 
substantially the same rewards or punishment, for the 
violated right, or the wrong inflicted,^ it is apparent that 
this was understood by the Poet, and in denying Angelo 
any "vantage" from his position, for the offense he had 
committed, the Duke but meted out equal and exact jus- 
tice to him, accordingly as he had dealt with Claudio. 

Sec. 32. The law a gazing-stock, when not enforced. — 

"Duke. My business in this state made me a looker-on, 
here in Vienna, 
Where I have seen corruption boil and bubble, 
Till it o'errun the stew: laws, for all faults; 
But faults so countenanced, that the strong statutes 
Stand like the forfeit in a barber's shop, 
As much in mock as mark.- 

The thought here expressed is that the law becomes a 
mere gazing-stock, w'hen not enforced. "Countenanced," 
is clearly used in the sense of approved, favored or en- 
couraged ; looked upon with favor or condoned. In other 
words, violations of the law had been so condoned that 
the law, itself, had become a mere mockery. It is a fa- 
miliar form of legal or judicial expression, as to laws 
which have become a dead letter, by lack of enforcement.^ 

And again, in Love's Labour's Lost, the King remarked: "And 
justice always whirls in equal measure." (Act IV, Scene III.) 

In Winter's Tale, before the trial of the queen, Hermione, 
Leontes said: "Let us be cleared of being tyrannous, since we 
so openly proceed in justice; which shall have due course, even 
to the guilt, or the purgation." (Act III, Scene II.) 

Warwick, in 3' Henry VI, is made to say: ''War. . . 
Measure for measure, must be answered." (Act II, Scene VI.) 

*Toullier, Droit, Civ. Fr. tit. prel. n. 5. 

* Measure for Measure, Act V, Scene I. 

' In a recent decision, by the Supreme Court of the State of Mis- 
souri, the Court said: "It ought not be expected that we would 
so hold as to encourage such a notion . . . and thereby 
make a gazing-stock of the law." 200 Mo., p. 400. 



58 THE LAW IN SHAKESPEARE. 

t 

Sec. 33. Confession of guilt. — 

"Ang. 0, my dread lord, 

I should be guiltier than my own guiltiness, 
To think I can be undiscernible, 
When I perceive your grace, like power divine. 
Hath looked upon my passes: Then, good prince, 
No longer session hold upon my shame. 
But let_ my trial be my own confession ; 
Immediate sentence then, and 'sequent death. 
Is all the grace I beg."^ 

As a voluntary confession of his guilt, this would be 
evidence^ against Angelo, by which his conviction would 
follow, in a trial. But as the confession is but an extra- 
judicial confession, as distinguished from a judicial con- 
fession,^ the Poet does not present it as more than evi- 
dence of his guilt, w^hich might be offered, on a trial, 
but the plea is for an end of the session, at the trial, by 
a judicial confession, which would then necessarily put an 
end to the proceeding — when made without fear or hope 
of reward* — through the waiver of a trial ; a plea of guilt 
and a subsequent immediate sentence. 

And that other unnatural edicts would prove a similar gazing- 
stock, because of their non-enforcement, the Poet makes another 
player say, in Love's Labour's Lost: 
^"Biron. I'll lay my head to any good man's hat, 
These oaths and laws will prove an idle scorn." 

(Act I, Scene I.) 

Clifford said, in 3' Henry VT: "Cliff. . . For what doth 
cherish weeds, but gentle air. And what makes robbers bold, but 
too much lenity?" (Act II, Scene VI.) 

^ Measure for Measure, Act V, Scene I. 

'1 Mood. Cr. Cas. 27, 452. 

^1 Lew. Cr. Cas. 46; 4 Carr. & P. 567; 2 Russell, Crimes (3d 

ed.), 876-878. 

* If a confession is exacted by inducement, threats, promise or 
hope of reward, in general, it is not admissible against a prisoner. 
1 Mood. Cr. Cas. 465; 4 Carr. & P. 570. 



THE LAW IN SHAKESPEARE. 59 

Sec. 34. Loyalty of attorney. — 

"Duke. Come hither, Isabel: 

Your friar is now your prince: As I was then 
Advertising, and holy to your business. 
Not changing heart with habit, I am still 
Attorney'd at your service."^ 

The ethical side of an attorney's duty toward his client 
is here touched on, for to be "holy" to the client's "busi- 
ness" ; "not changing heart with habit," but to be loyal 
to the person engaged, is but the primal duty of one "at- 
torney'd" in another's service. 

The business of attorneys is to carry on the practical 
and formal parts of suits.- The principal duties of at- 
torneys are, to be true to the court and their clients; to 
manage the business of their clients with care, skill and 
integrity; to keep their clients informed as to the state of 
their business and to keep the secrets confided to them, 
as such,^ That the Poet recognized these several duties 
as among the attorney's promised service, is apparent from 
this verse. 



Confession is referred to in Love's Labour's Lost, as follows: 
"King. Teach us, sweet madam, for our rude transgression 

Some fair excuse. 
Prin. The fairest is confession. 

Were you not here, even now, disguised?" 

(Act V, Scene II.) 
In Macbeth, Malcolm is made to say: "My liege, they are not 
yet come back. But I have spoke with one that saw him die; 
who did report that very frankly he confess'd his treasons." 
(Macbeth, Act I, Scene I.) 

After discovery of his treason, the earl of Cambridge, said to 
Henry V: "Cam. I do confess my fault; and do submit me to 
your highness mercy." (Act II, Scene II.) 

Cardinal Beaufort, exclaims, concerning the murder of Gloster, 
in 2' Henry VI: "Car. . . O, torture me no more, I will 
confess." (Act IIL Scene III.) 

' Measure for Measure, Act V, Scene I. 

'1 Kent's Comm. 307. 

M Burr. 2061; 1 Barnew. & Aid. 202. 



60 THE LAW IN SHAKESPEARE. 

Sec. 35. Intent, distinguished from wrongful act. 

'Isab. My brother had but justice, 

In that he did the thing for which he died: 

For Angelo, 

His act did not o'ertalce his bad intent, 

And must be buried but as an intent 

That perished by the way: thoughts are no subjects, 

Intents but merely thoughts."^ 

Here, the intent to commit an offense is clearly dis- 
tinguished from the crime, or actual accomplishment of 
the act. Claudio "did the thing for which he died;" 
but with Angelo, "His act did not o'ertake his bad intent, 
and must be buried but as an intent, that perished by 
the way." In defining "intents" as "merely thoughts," 
the legal definition of a criminal intent it not far digressed 
from, as criminal intent is said to be "a design, resolve, 
or determination of the mind."- But, of course, from a 
strictly legal standpoint, the conclusion of the pleader is 
wrong, that because Angelo did not accomplish the crime 
intended, he was guilty of no offense, for as a matter of 
fact, when a man intending one wrong fails, and acci- 
dently commits another, he will, except when the par- 
ticular intent is a substantive part of the crime, be held to 
have intended the act he did commit.^ Nor is it any 
reply to this suggestion that Angelo was guilty of no 
offense, in thus meeting his own wife, for as he had 
refused to so recognize her, his act was equally as guilty 
as Claudio's, for the latter did recognize Juliet as his 
common law wife. 



* Measure for Measure, Act V, Scene I. 
= Bouvier, Law Diet. 

'Roscoe, Crim. Evid. 272; Eden, Pen. Law (3d ed.), 229; 1 Carr. 
& K. 746. 

In Henry V, Williams explains to the king: "Will. All 
offenses, my liege, come from the heart: never came any from 
mine, that might offend your majesty." (Act IV, Scene VIII.) 

Speaking of the intent of Gloster, although not accomplished, 
Suffolk said, in 2' Henry VI: 



THE LAW IN SHAKESPEARE. 61 

Sec. 36. Breach of promise. — 

"Duke. For this newly married man, approaching here, 
Whose salt imagination yet hath wronged 
Your well defended honor, you must pardon, for 

Mariana's sake; 
But as he adjudged your brother (being criminal in 

double violation, of sacred chastity and of promise 

breach) , 
Thereon dependant for your brother's life."^ 

Claudio had been guilty of not only a breach of prom- 
ise — which w^ould have given, at common law, a civil 
action — but also of seduction, as well, under promise of 
marriage, as adjudged by Angelo. The "violation of 
sacred chastity" is nothing more nor less than the com- 
mon law offense of seduction, which was defined as "the 
act of a man in inducing a woman to commit unlawful 



''Suff. And, were't not madness, then, 

To make the fox surveyor of the fold? 
Who being accus'd a crafty murderer. 
His guilt should be but idly posted over. 
Because his purpose is not executed." 

(Act III, Scene I.) 
Illustrating the criminal intent of the deliberate murderer, the 
Poet makes Richard III say, while contemplating the murder of 
his brother: "Glo. . . if I fail not, in my deep intent, 
Clarence hath not another day to live." (King Richard III, Act 
I, Scene I.) 

The Poet asks the Painter, to tell Timon of Athens: "Poet. 
I must say him so too; tell him of an intent that's coming 
toward him." (Act V, Scene I.) 

The King is made to say, in Hamlet, reflecting on his guilt, ^ 
in the murder of his brother: ''King. . . My stronger guilt 
defeats my strong intent; And, like a man to double business 
bound, I stand in pause where I shall first begin, And both 
neglect." (Act III, Scene III.) 

Tarquin is made to say, in The Rape of Lucrece: 
"If Collatinus dream of my intent. 
Will he not wake and in a desperate rage 
Post hither, this vile purpose to prevent?" (218, 220.) 

* Measure for Measure, Act V, Scene I. 



62 THE LAW IN SHAKESPEARE. 

sexual intercourse with him."^ An action for breach of 
promise is a suit for damages for the violation of a "con- 
tract mutually entered into by a man and woman that 
they will marry each other."- While a breach of promise 
suit is always a civil suit for damages for violation of the 
contract of marriage, when such breach is accompanied 
by a seduction, the violator of the promise is subject to 
a criminal prosecution, in most countries, as for a viola- 
tion of the criminal laws.^ 

Sec. 37. Punishment by marriage to prostitute. — 

"Duke. . , , Proclaim it, provost, round about the 
city, 
If any woman's wrong'd by this lewd fellow — 
As I have heard him swear himself there's one 
Whom he begot with child — let her appear. 
And he shall marry her; the nuptial finish'd. 
Let him be whipped and hang'd. 

Lucio. I beseech your highness do not marry me to a 
whore. Your highness said, even now, I made you 
a duke; good my lord, do not recompense me in 
making me a cuckold. 

Duke. Upon mine honor, thou shalt marry her. 
Thy slanders I forgive and therewithal 
Remit thy other forfeits. — Take him to prison 
And see our pleasure herein executed. 

Lucio. Marrying a punk, my lord, is pressing to death, 
whipping and hanging."* 

This is no doubt a reference to the old Italian law, in 
force during the lifetime of the Poet, by which the punish- 
ment assessed against a criminal of the nature of Lucio, 
by the compulsory marriage to a prostitute, would be 
assessed in lieu of other penalty for his crime.^ But the 

^Bouvier, Law Diet. 

"Strange, 937; Addison, Con. (4th ed.), 676. 

» This is made a crime by statutes in most of the United States, 
as it was in England. 1 Bishop, Cr. Proc. 1106. 

♦Measure for Measure, Act V, Scene I. 

^Fabio. Gori's Archivio Storico, etc., (Spoleto Tip. Bassani), 
vol. Ill, pp. 220, 221; Rolfe's Measure for Measure, p. 219, notes. 



THE LAW IN SHAKESPEARE. 63 

Duke, in this instance does not assess this punishment, in 
lieu of the other penalty the law authorized, but after the 
marriage of Lucio, to the woman he had wronged, he also 
contemplated that this offender should be whipped and 
hanged. Lucio's reply to this judgment of the Duke, 
that this combined the punishment assessed against those 
criminals who refused to plead, by pressing them to death, 
known as peine forte et dure,^ elsewhere discussed,^ with 
the other punishments assessed, shows how much he ab- 
horred the sentence of marrying a prostitute. 



^Fleta, lib. 1. c. 34, sec. 33; Brit. C. C. 4, 22. 
'See King Richard II; Much Ado About Nothing. 



CHAPTER VI. 

"MUCH ADO ABOUT NOTHING." 

Sec. 38. Endowment. 

39. Breach of the Peace. 

40. Punishment by pressing to death. 

41. "Statutes of the Streets." 

42. Qualifications of Constable. 

43. Duties of the Nightwatch. 

44. False Imprisonment. 

45. Preliminary hearing. 

46. Examination before Magistrate. 

47. Householder. 

48. Preliminary Examination for Burglary. 

49. Trial by Manly Combat. 

50. Count — Extra-Judicial Confession on. 

51. False Testimony. 
-.52. The Scales of Justice. 

Sec. 38. Endowment. — 

"Bene. I would not marry her, though she were endowed 
with all that Adam had left him before he trans- 
gressed."* 

A person is said to be "endowed," when he or she has 
been provided for by a fixed or permanent support out of 
property or a certain fund or revenue.- The term applies 
peculiarly to a settlement made for a wife, by which she 
is endowed with some pecuniary provision for her sup- 
port.^ A dowry is a gift, or present for a bride, on 
espousal,* and is sometimes confounded with dower, which 
is the gift of the husband's property that the law makes 
to a widow on his death for the support of the widow and 
her children.^ Benedict's statement is of course very ex- 
travagant that he would not marry Beatrice, if she pos- 
sessed the whole world. 

^Much Ado About Nothing, Act II, Scene I. 

" Bouvier's Law Diet. 

M Kent's Comm. 65. 

* Coke, Litt, 31. 

'2 Bl. Comm. 130; 4 Kent's Comm. 35. 

(64) 



THE LAW IN SHAKESPEARE. 65 

Sec. 39. Breach of the peace. — 

"Leon. If he do fear God, he must necessarily keep 
peace; if he break the peace, he ought to enter into 
a quarrel with fear and trembling,"^ 

A breach of the peace is a violation of public order, com- 
monly known as the offense of disturbing the peace.^ The 
remedy for such an offense is by indictment and the 
offender may be held to bail, for his good behavior.^ 



In All's Well That Ends Well (Act IV, Scene IV) Helena is 
made to say: "■Hel. Doubt not, but Heaven hath brought me 
up to be your daughter's dower as it hath fated her to be my 
motive and helper to a husband." And in the same play, it is 
said: "King. If thou be'st yet a fresh uncropped flower, Choose 
thou thy husband and I'll pay thy dower." (Act V, Scene III.) 

The Chorus, in Henry V, advises that "the king doth offer him 
Katharine his daughter; and with her, to dowry, some petty 
and unprofitable dukedoms." (Act III, Scene I.) 

In the agreement between Henry VI of England and Charles, 
King of France, for the marriage of the former with Margaret, 
it was provided that she should be "sent over of the king of 
England's own proper cost and charges without having dowry." 
(Act I, Scene I.) 

And of this contract, York said: "I never read but England's 
kings have had large sums of gold, and dowries with their wives." 
(2' Henry VI, Act I, Scene I.) 

Lady Grey thus replies to King Edward's suit, in 3' Henry 
VI: "L. Grey. Why, then, mine honesty shall be my dower; For 
by that loss I will not purchase them." (Act III, Scene II.) 

King Richard III offers his hand to Queen Elizabeth for her 
daughter, his niece, as follows: "K. Rich. Even all I have; 
ay, and myself and all. Will I withal endow a child of thine." 
(Act IV, Scene IV.) 

Timon asks the Old Athenian, as to his daughter for Lucil- 
lius, if he bring her proper dowry, in Timon of Athens: "Tim. 
How shall she be endow'd if she be mated with equal husband?" 
(Act I, Scene I.) 

' Much Ado About Nothing, Act II, Scene III. 

' Bishop, Stat. Crimes, index. 

' This was called surety of the peace. 1 Bishop's Cr. Proc. 264. 



66 THE LAW IN SHAKESPEARE. 

As breaches of the peace commonly occur by blas- 
phemy, it follows that one who fears God, "must neces- 
sarily keep peace." And the fact mentioned that one 
who "breaks the peace/' "ought to enter into a quarrel 
with fear and trembling," applies, no doubt, to the legal 
attitude such a j^erson would occupy, for in law, one who 
is not in the peace himself cannot have his peace dis- 
turbed.^ 



The Lord Chief Justice commands the peace, in 2' Henry IV 
(Act II, Scene II), as follows: "C7t. Jus. What's the matter? 
keep the peace here, ho." 

In his soliloquy before the battle of Agincourt, King Henry V 
said: "K. Hen. . . in gross brains, little wots, what watch 
the king keeps, to maintain the peace, whose hours the peasant 
best advantage." (Act IV, Scene I.) 

The Mayor of London commanded the peace, by open proclama- 
tion, in 1' Henry VI, as follows: "May. Nought rests for me, in 
this tumultuous strife. But to make op?n proclamation: — Come, 
officer, as loud as e'er thou canst. Off. All manner of men, 
assembled here in arms this day, against God's peace and the 
King's, we charge and command you, in his highness' name, to 
repair to your several dwelling-places; and not to wear, handle, 
or use any sword, weapon, or dagger, henceforward, upon pain 
of death." (Act I, Scene III.) 

The Mayor of London, commanded the peace in the disturb- 
ance between the duke of Gloster and Winchester, in 1' Henry 
VI, as follows: "May. Fie, lords: that you, being supreme 
magistrates, Thus contumeliously should break the peace." (Act 
I, Scene III.) 

King Henry VI thus commanded the peace: "E. Hen. We 
charge you, on your allegiance to ourself, to hold your slaught- 
er'ng hands and keep the peace." (Act III, Scene I.) 

Queen Margaret curses Richard, in King Richard III: "Q. Mar. 
. . . Oh, let them keep it, till thy sins be ripe. And then 
hurl down their indignation on thee. The troubler of the poor 
world's peace." (Act I, Scene III.) 

After the battle of Bosworth, Richmond thus addresses his 
troops, in reference to the death of the tyrant Richard III: 

'Bishop's Cr. Proc. 183. 



THE LAW IN SHAKESPEARE. 67 

Sec. 40. Punishment by pressing" to death.— 

"Hero . . . If I should speak, 

She would mock me into air; 0, she would laugh me 
Out of myself, press me to death with wit."* 

This is no doubt a reference to the ancient punish- 
ment of pressing a criminal charged with felony to death, 
for his malicious refusal to enter a lawful plea, on being 
arraigned.^ The Poet uses this punishment in different 
plays.^ This was known to the old common 'law m 
punishment of peine forte et dure, and if the defendant 



"RicJim. Let them not live to taste this land's increase, 
That would, with treason, wound this fair land's peace; 
Now civil wounds are stop'd, peace lives again; 
That she may long live here, God say — Amen." 

(Act V, Scene IV.) 
Speaking to his peers, at his trial, Cranmer said, in King 
Henry VIII: "Cran. . . nor is there living (I speak it with 
a single heart, my lords), A man that more detests, more stirs 
against. Both in his private conscience and his place, Defacers 
of a public peace, than I do." (Act V, Scene II.) 

Benvolio said to Tybalt, in Romeo and Juliet, on parting the 
servants of Capulet and Montague: 

"I do but keep the peace; put up thy sword. 
Or manage it to part these men with me." 

(Act I, Scene I.) 

Capulet tells Paris: "And Montague is bound, as well as I in 
penalty alike; and 'tis not hard, I think, For men so old as we 
to keep the peace." (Act I, Scene II.) 

Saturninus speaks of the "disturbers of our peace," buzzing in 
the people's ears what had pass'd which was naught but lawful." 
(Act IV., Scene IV.) 

In Titus Andronicus, (Act II, Scene I) Aaron commands the 
peace In the customary manner, to stop the quarrel between 
Chiron and Demetrius, as follows: "Clu'bs, clubs, these lovers 
will not keep the peace." 

*Much Ado About Nothing, Act III, Scene I. 
^'Fleta, lib. 1, C. 34. 

'Measure for Measure, Act V, Scene I; Richard II, Act III, 
Scene IV. 



eS THE LAW IN SHAKESPEARE. 

persisted in his refusal to plead and it was found to be 
because of his own malice and stubbornness, instead of 
due to his own physical disability, he was placed upon a 
board and pressed with heavy weights, until the life was 
pressed out of him/ 

Sec. 41 . " Statutes of the Streets. ' '— 

"Verges. If you hear a child cry in the night, you must 

call to the nurse and bid her still it. 
Watch. How if the nurse be asleep and will not hear us? 
Dogb. Why, then, depart in peace, and let the child 

wake her with crying ; for the ewe that will not hear 

her lamb when it baes will never answer a calf when 

he bleats. "2 

It is quite probable that this part of this scene was in- 
tended as a burlesque upon The Statutes of the Street,^ by 
one provision of which it was provided that "no man shall, 
after the houre of nyne at night, keep any rule, whereby 
any such suddaine outcry be made in the still of the 
night, as making any affray, or beating his wyfe, or 
servant, or singing or revyling in his house, to the dis- 
turbance of his neighbours, under paine," etc.^ 



This method of treating felons who stood mute, was intro- 
duced some time between the 5th Hen. Ill, or the time of Brac- 
ton, and the 3d Edw. I. They were to be bareheaded, barefooted 
and in their coat, only, ungirth, confined in prison, on the bare 
ground, day and night, with only bread made of barley and bran, 
and water, the day they did not eat, and they were to be 
fastened down with irons. II Reeve's History Eng. Law., p. 425. 

For changes made in the form and manner of this punish- 
ment, in the reign of Henry IV, see III Reeve's History Eng. 
Law, p. 439. 

?Fleta, supra. 

»Much Ado About Nothing, Act III, Scene III. 
'Statutes of the Street, by Wolfe, in 1595; Rolfe's Much Ado 
About Nothing, p. 190, notes. 
*Sec. 30, supra. 



THE LAW IN SHAKESPEARE. QQ 

Sec. 42. Qualifications of constable 

"Dogb. First, who think you the most desartless man 
to be constable? 

1 Watch. Hugh Outcake, sir, or George Seacoal ; for they 

can write and read. 
Dogb Come hither neighbour Seacoal. God hath 
blessed you with a good name: to be a well favored 
man is the gift of fortune; but to write and read 
comes by nature. 

2 Watch. Both which, master constable, — 

Dogb. You have ; I knew it would be your answer Well 
lor your favor, sir, why, give God thanks, and make 
no boast of it ; and for your writing and reading let 
that appear when there is no need of such vamty 
You are thought here to be the most senseless and 
ht man for the constable of the watch; therefore 
bear you the lantern: this is your charge: you shall 
comprehend all vagrom men: you are to bid any 
man stand, in the prince's name."^ 

The Poet's deep seated dislike for constables and jus- 
tices of the peace is here manifested. That the "cob- 
stable of the watch" was "senseless," hence the "fit man" 
for the place is, of course, satire. The duties of a con- 
stable were to "keep the peace," in his district.- To "bear 
the lantern," was a ridiculous duty assigned the constable 
to further add to the disgrace of his office. The duty to 
"comprehend all vagrom men," was intended to apply to 
the constable's duty to apprehend vagrants, or those liv- 
ing idly and refusing to work.^ The right "to bid any 
man stand, in the prince's name," embraced the common 
law right and duty of any peace officer to arrest or detain 
any person committing a breach of the peace in his pres- 
ence.* 



* Much Ado About Nothing, Act III, Scene III. 

'1 BI. Comm. 356; Jacob, Law Diet.; Coke, 4 Inst, 267. 

•5 East. 339. 

*4 Bl. Comm. 292; 1 Carr. & P. 40. 

Upon the testimony of Olds, corroborative of the report that 
when 22. Shakespeare, was apprehended for "poaching" on the 



70 THE LAW IN SHAKESPEARE. 

Sec. 43. Duties of the nightwatch. — 

"Dogh. If you meet a thief, you may suspect him, by 
virtue of your ofRce, to be no true man; and, for 
such kind of men, the less you meddle or make with 
them, why, the more is for your honesty. 

2 Watch. If we know him to be a thief, shall we not lay 
hands on him? 

Dogh. Truly, by your office, you may; but I think, they 
that touch pitch will be defiled: the most peaceable 
way for you, if you do take a thief, is, to let him 
show himself what he is, and steal out of your com- 
pany. . . 

Verg. If you hear a child cry in the night, you must call 
to the nurse and bid her still it. 

2 Watch. How if the nurse be asleep, and will not hear 
us? 

Dogb. Why, then, depart in peace, and let the child 
wake her with crying ; for the ewe that will not hear 
the lamb, when it baes, wdll never answer a calf, when 
it bleats."^ 

The same satire, which characterizes the Poet's feeling 
toward constables, justices and such like petty officers, 
manifests itself in this colloquy. That the thief should 
be let go, and even the crying child abandoned, if the 

premises of Sir Ttios. Lucy and next morning was arraigned 
before Sir Thomas, who was a justice of the peace, of Charlecote, 
the bitter satire and ridicule which the Poet always heaps upon 
constables and justices, when they are introduced into his plays, 
would seem to furnish additional evidence of the truth of this 
report. 

In Love's Labour's Lost, the Constable is named "Dull" and 
he is made to say: "Dull. I'll make one in a dance, or so; or I 
will play on the tabor to the worthies, and let them dance the 
hay." And to this the schoolmaster replies: "Hoi. Most dull, 
honest Dull, to our sport away." (Act V, Scene I.) 

In All's Well That Ends Well (Act II, Scene II) the constable 
fs presented as about the lowest of officials, in the following 
verse: 'Vlo. From below your duke, to beneath your con- 
stable, it will fit any question." 

*Much Ado About Nothing, Act III, Scene III. 



THE LAW IN SHAKESPEARE. 71 

nurse could not be found, is, indeed, an extreme criticism 
of such officers' duties, and the ignorance of such officer 
is presented by the fact that it was not known that a lamb 
bleats, while a calf baes. 

Back of this humor, however, is the legal proposition, 
embodied by the question of the Watch, as to his right to 
arrest without a warrant and the reply, that by virtue 
of his office, he had such right. This is strictly accord- 
ing to law, for any peace officer, such as a constable or 
watchman, may arrest without a warrant, when a crime 
is committed in his presence, or when he has reasonable 
grounds to believe a felony has been committed and that 
the party arrested is the felon. ^ 

Sec. 44. False imprisonment. — 

"Dogb. This is the end of the charge. You, constable, 
are to present the prince's own person ; if you meet 
the prince in the night, you may stav him. 

Verg. Nay, by'r lady, that I think, he cannot. 

Dogh. Five shillings to one on't, with any man that 
knows the statutes, he may stay him; marry, not 
without the prince be willing: for, indeed, the watch 
ought to offend no man ; and it is an offense to stay 
a man against his will."^ 

This graceful backing down from a wrong position on 
the law, as such petty officers are accustomed to do, by 
drawing a nice distinction, such as is done in this case, 
is well presented here. 

The charge that the constable represents the prince's 
own person, means as a conservator of the peace. The 
charge that he possesses the authority to detain the prince 
himself, when questioned, leads to the adroit retraction, 
by the use of the distinction that he may be restrained, 
if he so desires. Then following this qualification of the 
former position, is the proper legal idea of a false im- 

»3 Taunt. 14; 3 Campb. 420; 4 Bl. Comm. 292; 1 Saund. 77. 
^'Much Ado About Nothing, Act III, Scene III. 



72 THE LAW IN SHAKESPEARE. 

prison ment or arrest, arising from a wrongful detention 
of any man, against his will. At common law, any un- 
lawful restraint of a man's liberty, whether in a place used 
for imprisonment generally, or in a place so used on the 
particular occasion, with or without bolts and bars, con- 
stituted a false imprisonment.^ Of course the arrest of 
a criminal or one believed to have committed a known 
offense, was not within this rule, for, in such case the 
detention was not held to be wrongful. But that the 
elements of a false arrest were duly understood by the 
Poet, is evidenced by the last line of this verse. 

Sec. 45. Preliminary hearing. — 

"Dogh. Go, good partner, go; get you to Francis Sea- 
coal ; bid him bring his pen and inkhorn to the goal ; 
we are now to examination these men. 

Verg. And we must do it wisely. 

Dogh. We will spare for no wit, I warrant you; here's 
that (touching his forehead) shall drive some of 
them to a non-com: only get the learned writer to 
set down our excommunication, and meet me at the 
goal.^ 

As the evidence of the witnesses was all written down 
at the preliminary hearings, before magistrates, when one 
was charged with an offense, to preserve the evidence for 
the benefit of the court and jury, which would try the 
accused for the offense, this is the proceeding here re- 
ferred to, in requesting the "pen and inkhorn," as a pre- 
liminary to the examination. 

The expression that some of the offenders shall be 
driven, by the play of his wit, "to a non-com," evidently 
means that he will push them to the extreme of madness. 
In legal parlance, a non-compos mentis is one not of sound 

»2 Bishop, Cr. Law, 669; 4 Bl. Coram. 218. 
a 3 Hawkins, PI. Cr. 164; 4 Bl. Comm. 292. 
3 Much Ado About Nothing, Act III, Scene V. 
^2 Leach Cr. Cas. 552; 4 Bl. Comm. 296. 



THE LAW IN SHAKESPEARE. 73 

mind or memory and the terms signify all species of mad- 
ness, whether arising from idiocy, sickness, or otherwise.^ 
The abbreviation of these legal terms, by the constable, 
is no doubt used, to show his extreme ignorance and arro- 
gance, like the suffix to the word "examine," in the third 
line; the egotistical assurance of the constable, and the 
use of the prefix and wrong use of the word in the last 
line of the verse quoted. 

Sec. 46. Examination before magistrate. — 

"Dogh. Is our whole dissembly appeared? 

Verg. 0, a stool and a cushion, for the sexton. 

Sexton. Which be the malefactors? 

Dogb. Marry, that am I and my partner. 

Verg. Nay, that's certain ; we have the exhibition to 
examine. 

Sexton. But which are the offenders that are to be ex- 
amined? Let them come before master constable."^ 

The ignorance of the constable is again portrayed, with 
seeming pleasure by the Poet, in this presentation of an 
examination before the magistrate. Such examinations 
were usually accomplished by bringing the witnesses and 
the accused before a justice of the peace or peace officer, 
and writing down the evidence of the witnesses. If no 
cause for his detention should be shown, the prisoner was 
discharged, but if a crime was uncovered, or sufficient 
suspicion attached to the charge, to warrant putting him 
upon his trial, the evidence of the witnesses was certified 
by the magistrate to the court w^here he was to be tried, 
with the recognizance of the witnesses and the prisoner 
was committed to jail or placed under bond to answer to 
the charges filed against him.^ The word malefactor, 
meaning a wrongdoer, is one who has committed some 



*Coke, Litt. 247; 4 Coke, 124; Shelford, Lun. 1. 
^'Much Ado About Nothing, Act IV, Scene II. 
»2 Carr & K. 223; 4 BI. Comm. 296; 2 Leach, Cr. Cas. 552. 



74 THE LAW IN SHAKESPEARE. 

crime/ but as the term is usuall}' only applied to a per- 
son, after conviction for some offense, it is irregular to 
so term one who is merely accused; but as it seemed a 
part of the Poet's plan to show how soon the conviction 
or holding of the accused would follow, in such a court, 
after the filing of the charge, the term is perhaps used 
with this intent, in this instance. 

Sec. 47. Householder. — 

"Dogb. Dost thou not suspect my place? Dost thou not 
suspect my years? — O that he were here to write me 
down — an ass: — but, masters, remember that I am 
an ass; though it be not written down, yet forget 
not that I am an ass : — No, thou villain, thou art full 
of piety, as shall be proved upon thee by good wit- 
ness. I am a wise fellow; and, which is more, an 
officer; and, which is more, a householder: and, which 
is more, as pretty a piece of flesh as any in Messina; 
and one that knows the law, go to; and a rich fel- 
low, enough, go to; and a fellow that hath had losses; 
and one that hath two gowns, and everything hand- 
some about him: — Bring him away. O, that I had 
been writ down, — an ass."^ 

This portrayal of the ignorance of the constable, is an- 
other evidence of the Poet's dislike for this class of officers. 
The misnomer that the prisoner was full of "piety" in- 
stead of guilt, and that they did not "suspect' his place 
or years, as well as the bragging and egotistical bearing 
of the speaker, show the ignorant bravado that too often 
characterizes such petty officers. 

The claim to being a "householder," illustrates the basis 
of certain rights of citizenship w^hich attach to a "house- 
holder," or one who has and provides for a household.^ as 
distinguished from one who is not so possessed. 



The Archbishop of Canterbury, speaking of magistrates, in 
Henry V, said: "Cant. . . some, like magistrates, correct at 
home." (Act I, Scene II.) 

' Bouvier, Law Diet. 

= Much Ado About Nothing, Act IV, Scene II. 

'Bouvier, Law Diet. 



THE LAW IN SHAKESPEARE. 75 

Sec. 48. Preliminary examination for burglary. — 

"Dogh. Yea, marry, that's the eftest way : — Let the watch 
come forth: — Masters, I charge you, in the prince's 
name, accuse these men. 

1 Watch. This man said, sir, that Don John, the prince's 

brother, was a villain. 
Dogh. Write down — prince John a villain — why, this is 

flat perjury, to call a prince's brother — villain. 
Bora. Master constable, — 
Dogb. Pray thee, fellow, peace; I do not like thy look, 

I promise thee. 
Se.rtoii. What heard you sa}'' him else? 

2 Watch. Marry, that he had received a thousand ducats 

of Don John for accusing the lady Hero wrongfully. 
Dogb. Flat burglary, as ever was committed. 
Verg. Yea, by the mass, that it is."^ 

This portrayal of the ignorance and misuse of the legal 
terms, by the constable, while illustrating a common trait 
of such petty officers, seems to be repeated with a method. 

The crime of ''perjury," of course, was not committed 
by the calling of Don John a villain, but if any offense 
this would be slander only, as it would be slander, instead 
of ''burglary," to wrongfully accuse Hero. 

The examination of the witnesses here followed was 
that prescribed by the common law by a magistrate, to 
ascertain if a bailable offense had been committed.- At 
common law the accused could not be examined, but only 
the witnesses against him.^ Hence, the injunction to the 
accused, to keep his peace. 

Sec. 49. Trial by manly combat. — 

"Leonato. . . . Tliou hast so wrong'd mine inno- 
cent child and me 
That I am forc'd to lay my reverence by. 
And, with grey hairs and bruise of many days, 
Do challenge thee to trial of a man."' 



' Much Ado About Nothing, Act IV, Scene TI. 
M Bl. Comm. 296: 2 Leach, Cr. Cas. 552. 
*Roscoe, Cr. Evid. 44; Phillipps, Evid. 106. 
*Much Ado About Nothing. Act V, Scene I. 



76 THE LAW IN SHAKESPEARE. 

This was the custom of the common law, when a litigant 
asserted his writ of right, and chose to defend his right 
by duel.^ Shakespeare was evidently familiar with this 
barbarous practice, for he refers to the trial by duel, or 
battle, in different plays.- The demandant met the de- 
fendant in an open test of strength and they fought until 
one or the other was killed or vanquished, and the victor 
was held to have won his suit. If the demandant died 
a natural death before the battle, or duel, was fought, he 
had a right to be represented by his son, born in lawful 
wedlock, but if his death was by any fault or neglect of 
his, this was held to be an end of the contest, in favor of 
his opponent.* 

Sec. 50. Count — Extra-judicial confession on. — 

"Bora. Sweet prince, let me go no further to mine an- 
swer; do you hear me, and let this count kill me. I 
have deceived even your very eyes: what your wis- 
doms could not discover, these shallow fools have 
brought to light; who, in the night, overheard me 
confessing to this man, how Don John, your brother, 
incensed me to slander the lady Hero ; how you were 
brought into the orchard, and saw me court Margaret, 
in Hero's garments; how you disgraced her, when 
you should marry her: my villany they have upon 
record; which I had rather seal with my death, than 
repeat over, to my shame: the lady is dead upon 
mine and my master's false accusation; and, briefly, 
I desire nothing but the reward of a villian."* 

The confession of record, or the examination of the 
witnesses, by which the evidence of the offense was tran- 
scribed, is referred to, by the speaker, by the statement of 
the fact that "my villainy they have upon record." This 
was a repetition of the extra-judicial confession that the 



^ 1 Reeve's History Eng. Law, p. 393. 

* Richard H, Act I, Scene I; Act IV, Scene I. 

* 1 Reeve's History Eng. Law, supra. 

* Much Ado About Nothing, Act V, Scene I. 



THE LAW IN SHAKESPEARE. 77 

watchman heard him in the night "confessing to this 
man." The willingness expressed, to "let this count kill 
me," refers to the different charges or paragraphs in a 
declaration or indictment, by which the pleader set up 
the offenses or the causes of action/ Each count usually 
refers to a different offense or cause of action.'^ 

Sec. 51. False testimony. — 

"D. Pedro. Officers, what offense have these men done? 

Dogb. Marry, sir, they have committed false report; 
moreover, they have spoken untruths; secondarily, 
they are slanders; sixth and lastly, they have belied 
a lady; thirdly, they have verified unjust things: 
and, to conclude, they are lying knaves."^ 

The officer here — through the Poet's satire — attempts to 
make of the offense of slander and of bearing false testi- 
mony, many separate distinct offenses, which are, in 
reality, the same, as the Poet clearly knows. To circu- 
late false reports; to speak untruths and to have "belied 
a lady," are all different ways of charging a slander, but 
to "verify unjust things," while a mere slander, if made 
out of court, too, would be bearing false testimony, if 
made in court, hence would be a criminal offense, for if a 
witness swears to what he knows to be untrue, this is a 



crime.* 



Sec. 52. The scales of justice. — 

"Dogb. Come, sir; if justice cannot tame you, she shall 
ne'er weigh more reasons in her balance; nay, an 
vou be a cursing hypocrit once, you must be looked 
to."^ 

This personification of justice, from the mythological 
idea of a blind-fold Goddess, dispensing justice, through 



'Gould, PI. c. 4; Stephen, PI. 279. 

^ Ante idem. 

' Much Ado About Nothing, Act V, Scene I. 

^Roscoe, Cr. Evid. 362. 

'Much Ado About Nothing, Act V, Scene I. 



78 THE LAW IN SHAKESPEARE. 

the medium of evenly balanced scales, upon which the 
rights of litigants were weighed, is the current way of 
typifying justice, because of the prevalency of the myth, 
w^hich so represented this virtue. As the reasons for and 
against a criminal, in the investigation of a charge, would 
be the consideration entering into the conclusion of his 
guilt or innocence, the expression, ''she shall ne'er w^eigh 
more reasons in her balance," is tantamount to saying that 
the Goddess herself would be so convinced of the offender's 
guilt, in this instance, that if he was not punished, the 
scales of justice would be wholly discarded. 



Referring to the enforcement of the law against him, when 
he was Prince of Wales, King Henry V, said to the Lord Chief 
Justice, in 2' Henry IV: 

"King. You are right, justice, and you weigh this well; 
Therefore still bear the balance and the sword." 
The Goddess of Justice, like the God of Love, was painted 
blind that she might not look with the eye, but with the mind, 
or, as the Poet expresses it, in the latter instance, 
"Love looks not with the eyes, but with the mind, 
And therefore is winged Cupid painted blind." 

(Midsummer Night's Dream, Act I, Scene I.) 

King Henry VI said, in speaking of the offenses committed by 
Duchess of Gloster: 

"K. Hen. . . And poise the cause in justice's equal scales, 
Whose beam stands sure, whose rightful cause prevails." 

(Act II, Scene I.) 
Before murdering Desdemona, Othello observes of her breath; 
"O balmy breath, that dost almost persuade Justice to break her 
sword." (Act V, Scene II.) 



CHAPTER VII. 

"MIDSUMMER NIGHT'S DREAM." 

Sec. 53. Jurisdiction of Athenian Laws. 

54. Parent and Child, under Greek Law. 

55. Parent's right of Infanticide, by Athenian Law. 

56. Pleading for Fee. 

57. Parent's Consent to Child's Marriage. 

58. Limitation of Municipal Law. 

Sec. 53. Jurisdiction of Athenian laws. — 
"Lys, A good persuasion ; therefore, hear me Hermia. 
I have a widow aunt, a dowager 
Of great revenue, and she hath no child; 
From Athens is her house remote seven leagues, 
And she respects me as her only son. 
There, gentle Hermia, may I marry thee; 
And to that place the sharp Athenian law cannot 
pursue us."^ 

This reference to the "widow aunt," it is believed, is 
not so much to show a guardian, who could consent to 
the marriage, as to state the fact that her home would 
furnish a haven, beyond 'the jurisdiction of the law of 
Athens. If the residence of the widow aunt, was, as 
stated, a distance equivalent to seven English leagues, it 
would be about twenty-one miles from Athens and this 
distance would no doubt have carried Lysander and Her- 
mia into another district, where different laws obtained. 
For it must be remembered that the free states of Greece 
w^ere merely cities with their districts, and each dis- 
trict possessed its own constitution and had exclusive man- 
agement of its own concerns.- The different states of 
Attica, for instance, had their respective heads, or presi- 
dents, and the different peoples or tribes adopted their 
own laws and regulations in so far as they did not con- 



^ Midsummer Night's Dream, Act I, Scene I. 

-3 St. John's Manner & Customs of Ancient Greece, 76, 77; 

Schoman's Dissertation on the Assemblies of the Athenians, 346, 

356, 358. , , 

(79) 



80 THE LAW IN SHAKESPEARE. 

flict with the general laws of the State. ^ So if the dis- 
tance to be traveled would carry the lovers into another 
district of the state, it was no doubt, true, as the Poet 
states, that the "sharp Athenian law" could not pursue 
them. 

Sec. 54. Parent and child, under Greek law. — 

"Ege. . . . And, my gracious duke, 

Be it so she will not here, before your grace, 
Consent to marry with Demetrius, 
I beg the ancient privilege of Athens; 
As she is mine, I may dispose of her; 
"Which shall be either to this gentleman, 
Or to her death; according to our law. 
Immediately provided in that case."- 

Egeus here claimed the law, as it w^as known to exist, 
not only in ancient Greece, but in Egypt, Persia and 
Rome, as well.^ According to the "ancient privilege of 
Athens," the child was regarded more as the property of 
the parent than as an independent rational being, and a 
father was allowed a very absolute dominion over the 
child.* The Twelve Tables,^ of the Romans, were no 
doubt taken by the deputies from the laAVS of ancient 
Greece and the fourth of these tables gave the father not 
only the power of sale, but the power of life and death, as 
well, over his children," After the expulsion of Tarquin, 



^Hereen, on Political History of Ancient Greece (Oxford ed.), 
1834. 

^ Midsummer Night's Dream, Act I, Scene I. 

»St. John's Hist. Manners & Customs Anc. Greece, i, 120-125; 
2 Kent's Comm. (12 ed.), 204 and note. 

* Taylors, Elem. Civ. Law, 395, 402; Caesar, de Bel. Gal. lib. 6, 
c. 19; 2 Kent's Comm. (12 ed.), 204 and note. 

^Livy, b. 6, c. 1; Heineccii Hist. Juris Civilis, lib. 1, sec. 26; 
Cicero, Orat. in Cat, 3, 4; Niebuhr, Roman Hist, ii, 235 (ed- 
Phil. 1835); 2 Hooka's Roman Hist., c. 27; Gravina, de Ortu et 
Prog. J. C. 32; 1 Arnold's Hist, of Rome, 284. 

« Gravina, De Jura, Naturalia Gentium et XII Tabularum; 2 
Kent's Comm. (12 ed.) 520, 521, and note. 



THE LAW IN SHAKESPEARE. 81 

Rome suffered from an absence of written laws and the 
Twelve Tables were prepared by a commission, after a 
visit to Athens to learn the laws and study the institu- 
tions of that country. 1 The laws prepared or transcribed 
by this commission were engraven on tablets of brass,- and 
they continued in effect until the time of the Emperor 
Hadrian.^ 

Sec. 55. Parent 's right of infanticide by Athenian law. — 

"The. . . . For you, fair Hermia, look you arm your 
self 
To fit your fancies to your father's will; 
Or else the law of Athens yield you up 
(Which by no means we may extenuate) 
To death, or to a vow of single life."^ 



Under Draco's laws, death in Athens was appointed for almost 
all offenses. Those convicted of idleness or the theft of a cab- 
bage or an apple were made to suffer the same penalties as 
criminals who committed sacrilege or murder, according to 
Plutarch. (Plutarch's Life of Solon.) 

From the most authentic sources it is esta'blished that the 
laws permitting the sale or murder of daughters, by fathers or 
brothers, stood in Athens, until such barbarous ordinances were 
repealed, along with the law which permitted the creditor to take 
the person of his debtor as his security for a debt owing to him, 
by the wise Solon. 

"Solon forbade the sale of daughters or sisters into slavery 
by fathers or brothers, a prohibition which shows how much 
females had before been looked upon as articles of property." 
3 Grote's Greece, 99, 135, 140; Plutarch's Life of Solon. 

The names of Theseus and Demetrius, in this play, are no 
doubt selected by the Poet for Theseus, king of Attica, who 
first established the political power of Athens and made it the 
metropolis and Demetrius Phalereus or Demetrius Poliorcetes, 
who restored the constitution of Athens, after Antipater's 
oligarchy of wealth. Grote's Greece, vol. 12, p. 324. 

^1 Kent's Comm. (12 ed.), 520. 

2 Cicero, Orat. in Cat. 3, 4; 1 Kent's Comm. (12 ed.), 525. 

'2 Kent's Comm. (12 ed.), 204. 

* Midsummer Night's Dream, Act I, Scene I. 



82 THE LAW IN SHAKESPEARE. 

Theseus here but proclaimed the law of Athens, as it 
existed at a period anterior to the time of Solon, for at 
this period in the world's history, the people generally 
carried the power of the parent over the person and lib- 
erty of the child to an atrocious extent and not only in 
Greece, but in Persia, Egypt, Gaul and Rome, infanticide 
was tolerated and the lives and liberty of the children were 
placed in the hands of the father.^ In Rome the power of 
life and death over the child was not regarded as an abso- 
lute license of the parent, but was a species of domestic 
jurisdiction, recognized as a lawful right of the parent. 
This power, in Rome, was weakened a great deal in the 
time of Augustus, but it was perhaps not until Valentinian 
and Valens made the offense of killing infants a capital 
crime, that the practice was abolished in Rome.- 

In Greece, at the time of the play, the Poet makes this 
horrible practice still within the power of a parent and no 
doubt this is correct, for prior to the time of Solon, under 
the ordinances of Draco, the right was recognized as with- 
in the lawful power of a parent,^ which Theseus declines 
to "extenuate." 

Sec. 56. Pleading for fee. — 

"Puck. Captain of our fairy band, 
Helena is here at hand, 
And the youth, mistook by me, 



» Taylor's Elements of Civil Law, 395, 402; 1 St. John's Hist. 
Manners & Customs of Ancient Greece, 120-125; Voyage du 
Anarcharis en Grece, iil, c. 26; Justinian's Inst. 1, 9; Caesar de 
Bel. Gal. lib. 6, c. 19; Sallust, Bel. Cat. c. 39; De Patria Potestate; 
Heinneccius, Syntagma Ant. Rome, etc., lib. 1, tit. 9, Opera iv; 
Rynkershoek's Opusculum, de jure, etc., Opera 1, 346; Noodt, de 
Partus Expositione et Nice apud Veteres. Infanticide was the 
horrible vice of all antiquity. Ill Gibbon's History, 55-57. The 
Roman authors termed this power of the father patria majestas. 
Heinneccius, Syntagma Antiq. Rome, Jur. lib. 1, tit. 9, Opera iv; 
7 Am. Law Rev. 61. 

2 Taylor's Elements Civil Law, 403-406; 2 Kent's Comm. (12 
ed.) 204. 

'Plutarch's Life of Solon; 3 Grote's Greece, 99, 135. 



THE LAW IN SHAKESPEARE. 83 

Pleading for a lover's fee, 

Shall we their fond pageant see? 

Lord, what fools these mortals be."^ 

Demetrius is here placed in the attitude of a lawyer 
pleading for his fee. In law, the fee is usually a recom- 
pense for the pleading. In other words, a reward given 
to the counselor or attorney, for the execution of his office 
or by way of recompense for his professional services.^ 
Fees differ from costs, in that the former are a recompense 
for the services rendered, while the latter are but an 
indemnity for money expended or laid out.^ 



^ Midsummer Night's Dream, Act III, Scene II. 
- Cowel, Bouvier. 
= 9 Wheat. 262. 

According to Halliwell-Phillipps, the phrase had the specific 
meaning of "three kisses." Rolfe's Midsummer Night's Dream, 
p. 182, notes. 

The grasping quality of some attorneys is referred to, in All's 
Well That Ends Well (Act II, Scene II), as follows: ''Clo. As 
fit as ten groats is for the hand of an attorney." 

Richard tells Anne, in King Richard III: "Glo. . . now 
thy beauty is propos'd my fee, My proud heart sues and prompts 
my tongue to speak." (Act I, Scene II.) 

On promising to circulate the false rumor of his brother's 
bastardy, Buckingham tells Gloster, in King Richard III: "Buck. 
Doubt not, my lord; I'll play the orator, As if the golden fee, 
for which I plead. Were for myself." (Act III, Scene V.) 

Ulysses said, in Troilus and Cressida, that "supple knees feed 
arrogance, and are the proud man's fees." (Act III, Scene III.) 

In the dialogue between Mercutio and Romeo, in Romeo and 
Juliet, in his reference to Queen Mab, Mercutio, after describing 
her state, said: "And in this state she gallops, night by night, 
Through lovers' brains and then they dream of love; . . 
O'er lawyers' fingers, who straight dream on fees." (Act I, 
Scene IV.) 

Tamora, in Titus Andronicus, considers the rape of Lavinia, 
as the fee due her sons, when she denies her interference to save 
her, in these words: 
'Tarn. So should I rob my sweet sons of their fee: 

No, let them satisfy their lust on thee." (Act II, Scene III.) 



84 THE LAW IN SHAKESPEARE. 

Sec. 57. Parent's consent to child's marriage. — 

"Ege. Enough, enough, my lord ; you have enough ; 
I beg the law, the law upon his head. — 
They would have stolen away, they would, Deme- 
trius, 
Thereby to have defeated you and me: 
You, of your wife; and me of my consent; 
Of my consent that she should be your wife."^ 

In everything that relates to the domestic relations the 
English common law has a great superiority over the law 
of ancient Greece and Rome. Under the law of ancient 
Gtreece and Rome, the parental power continued not only 
during the child's minority, but during its entire life. 
The child could not marry without the consent of the 
parent f whatever he acquired, he acquired for the benefit 
of the parent, and, in fact, the child was regarded by the 



The Fool, in King Lear, speaks of the "breath of an unfee'd 
lawyer." (Act I, Scene IV.) 

Lucrece, in her complaint to Opportunity, which accomplished 
her ruin, said: 

"When truth and virtue have to do with thee, 
A thousand crosses keep them from thy aid: 
They buy thy help, but Sin ne'er gives a fee." (911, 913.) 

In Venus and Adonis, the following occurs: " 'Good night,' 
quoth she; and, ere he Bays, 'Adieu,' The honey fee of parting 
tender'd is." (537, 538.) 
The Poet concludes, on Venus lost plea to Adonis: 
"But all in vain; good queen, it will not be: 
She hath assay'd as much as may be proved; 
Her pleading hath deserved a greater fee." (607, 609.) 

Referring to Southampton's freedom from the Tower, the CXX 
Sonnet proceeds: 

"But that your trespass now becomes a fee; 
Mine ransoms yours, and yours must ransom me." (13, 14.) 

* Midsummer Night's Dream, Act IV, Scene II. 

= St. John's History of Manners & Customs of Ancient Greece, 
120-125; Voyage du Anarcharis en Grece, iii, c. 26; Taylor's Ele- 
ments of Civil Law, 395, 403. 



THE LAW IN SHAKESPEARE. B5 

law, rather as property of the parent, than in the light 
of a rational human being.* 

In ecclesiastic law, in England, the want of the parentis 
consent to the marriage of a child was impedi'mentu'm 
impeditivwm, or such an impediment as threw an obstrue- 
tion in the way of the celebration of the marriage, but it 
was not an impedimentum dirimens, or such an impedi- 
men as would avoid a marriage once solemnized.- At 
common law, in England, the marriage of infants even, 
provided they had arrived at years of consent, was held 
to be valid, as great mischiefs were found to grow out of 
the rule that marriages could be avoided, when solemn- 
ized without the consent of the parent.^ 

But in presenting the rule obtaining in ancient Greece, 
the Poet was right in making the consent of the parent 
essential to a valid marriage of the child, so Egeus had a 
right to claim that his consent was essential to the mar- 
riage of his daughter. 

Sec. 58. Limitation of municipal law. — 

"Lys. . . . Our intent was, to be gone from Athens, 
where we might be. 
Without the peril of the Athenian law."* 



The Old Athenian, in Timon of Athens, in refusing his con- 
sent to the marriage of his daughter to Lucillius, unless he 
brought a proper marriage portion, said: ''Old. AtJi. If in her 
marriage my consent be missing, I call the Gods to witness, I 
will choose mine heir from forth the beggars of the world, and 
dispossess her all." (Act I, Scene I.) 

Simonides, in Pericles, Prince of Tyre, emphasizes the neces- 
sity for his consent to his daughter's marriage, with Pericles, 
when he said: 

"Sim. . . . Will you, not ha^nng my consent, bestow, 
Your love and your affections on a stranger?" 

(Act II, Scene V.) 

*2 Kent's Comm. (12th ed.), 205. 

*1 Bishop's Mar. & Div. (4th ed.), 293. 

' Ante idem. 

* Midsummer Night's Dream, Act IV, Scene II. 



86 THE LAW IN SHAKESPEARE. 

The Poet here recognizes that the validity of a rule of 
municipal law depends upon its being enforced within the 
limits of the municipality where it is invoked. The rule 
of law invoked against Lysander and Plermia, was a rule 
of municipal law, as distinguished from international law. 
The former laws apply only to particular municipalities 
or districts, while the latter obtain, even among different 
states or nations.^ 



1 Bl. Comm 44. 



CHAPTER VIII. 

"LOVE'S LABOUR'S LOST." 



Sec. 59. 


Term — Subscribing to Oath. 


60. 


Decrees. 


61. 


Penalty of the Law. 


62. 


Attainder. 


63. 


Taken "With the Manner." 


64. 


"In Manner and Form." 


65. 


Venue and Offense Charged, 


66. 


Inheritance — Dowry. 


67. 


Duties of Solicitor. 


68. 


Surety. 


69. 


Title. 


70. 


Common — Severalty. 


71. 


Crime of Perjury. 


72. 


Denial of Receipt. 


73. 


Specialities — Acquittances. 


74. 


Apparitors — Duties of. 


75. 


Enfranchising one. 


76. 


Treason. 


77. 


"Quillets" of the Lav/. 


78. 


"Statute-caps." 



Sec. 59. Term — Subscribing to oath. — 

"King. You three, Biron, Dumain and Longaville, 
Have sworn for three years' term to live with me, 
My fellow-scholars, and to keep those statutes, 
That are recorded in this schedule here: 
Your oaths are past and now subscribe your names; 
That his own hand may strike his honor down, 
That violates the smallest branch herein : 
If you are arm'd to do, as sworn to do. 
Subscribe to your deep oath and keep it too.'"- 

As an oath can only be administered by some one au- 
thorized to administer oaths,- and the form of taking the 
oath is not here presented, the Poet purposely accounts 
for this absence by saying that the oaths have already been 

* Love's Labour's Lost, Act I, Scene I. 
•2 McLean, Cr. Cases, 135. 

(87) 



88 THE LAW IN SHAKESPEARE. 

taken and the names are now but to be subscribed thereto. 
This verse abounds in proper legal phrases. One "sub- 
scribes" to an instrument of writing, when he places his 
signature at the bottom of the engagement or writing.^ 
'Term," in the law of contracts, is the space of time given 
for the discharge of an obligation. ^ Statutes, until re- 
corded are not usually enforceable,^ hence the rules of 
conduct here are announced as duly recorded. Indeed, 
the statute law, was understand as the written or recorded 
laws, to distinguish it from the unwritten or unrecorded 
laws, at common law.* 

Sec. 60. Decrees. — 

"Biron. . . . Give me the paper, let me read the 
same; 
And to the strict'st decrees, I'll write my name." 



"King. "We must, of force, dispense with this decree. 
She must lie here, on mere necessity."^ 

Decrees, as generally understood, are sentences or judg- 
ments of a court of equity, as distinguished from a court 
of law,® but this is not the sense in which the term is used 
in this verse, for here the word is used as applying to a 
legislative act, not to a judgment of a court. In some 
countries, acts of the legislative branch of Government, 
or of the sovereign, which have the force and effect of 
laws, are spoken of as decrees,'^ such as the Berlin and 
Milan decrees and this is the meaning in which the word 
is used here. 



^From Latin, sul). under and scriho, to write. 

' Bouvier's Law Dictionary. 

»1 Bl. Comm. 85, 86; 4 Coke, 76. 

* Bouvier's Law Dictionary. 

' Love's Labour's Lost, Act I, Scene I. 

" 7 Comyns Dig. 445. 

^Bouvier's Law Dictionary. 



THE LAW IN SHAKESPEARE. 89 

Sec. 61. Penalty of the law. — 

"Biron. (Reads) That no woman shall come within a 
mile of my court — And hath this been proclaimed? 

Long. Four days ago. 

Biron. Let's see the penalty. (Reads) On pain of los- 
ing her tongue. — Who devis'd this? 

Long. Marry, that did I. 

Biron. Sweet lord, and why? 

Long. To fright them hence, with that dread penalty. 

Biron. A dangerous law against gentility."^ 

The idea is expressed in this colloquy that the law would 
not be effective until it was properly proclaimed as a law 
and this, of course, is true.- The penalty is then ad- 
verted to and the avowed purpose is stated to be to deter 
the violation of the rule prescribed by the edict. This 

The following occurs, in Love's Labour's Lost (Act IV, 
Scene III): 

"Biron. As true, we are, as flesh and blood can be. 
The sea will ebb and flow, heaven show his face; 
Young blood will not obey an old decree: 
We cannot cross the cause why we were born; 
Therefore, of all hands must we be foresworn." 
In Merchant of Venice (Act I, Scene II) the effect of a decree, 
contrary to the inclinations of youth, is spoken of as follows: 
"For. The brain may devise laws for the blood ; but a hot temper 
leaps over a cold decree; such a hare, is madness, the youth, to 
skip o'er the meshes of good counsel, the cripple." 

Complaining of his past treatment, the King said to his son, in 
2 Henry IV (Act IV, Scene IV): "K. Hen. . . . Give that 
which gave thee life unto the worms; pluck down my officers; 
break my decrees." 

In King Richard, in exiling Bolingbroke and Norfolk, the King 
said: 

"K. Rich. Let them lay by their helmets and their spears. 
And both return back to their chairs again; 
Withdraw with us; and let the trumpets sound, 
While we return these dukes what we decree." 

(Act 1, Scene, in.) 
* Love's Labour's Lost, Act I, Scene I. 

*1 Stephen, Comm. 25; 10 Pet. 18. A law not properly promul- 
gated or proclaimed, would be no law. Bouvier's Law Dictionary. 



90 THE LAW IN SHAKESPEARE. 

is the object of all penal provisions, to deter those upon 
whom the law is to operate from a violation of its pro- 
visions.^ But if the penalty is too harsh for the offense 
prescribed, it is not generally, a good law, for it will be 
apt to be violated and the penalty dispensed with, hence 
Biron concludes that this harsh provision is "a danger- 
ous law." 

Sec. 62. Attainder. — 

''Biron. ... I am foresworn on mere necessity. — 
So to the laws at large I write my name: 
And he that breaks them in the least degree, 
Stands in attainder of eternal shame. "2 

"Attainder" was that extinction of civil rights and 
capacities which took place, at common law, whenever a 
person who had committed treason or other felony, re- 
ceived the sentence for his crime.^ Attainder was either 
by confession, in court; by verdict, or by process of out- 
lawry, in case of his flight.* The effect of an attainder 
was that the felon's estate, real and personal, was for- 
feited ; his blood was corrupted, so that nothing passed by 
inheritance, to, from or through him, and he was unable 
to sue to enforce any right in a court of justice.^ Of 
course the player spoke extravagantly in the use of this 
term as a penalty for the offense considered. 



The King, in Hamlet, mentions "How dangerous Is it, tliat this 
man goes loose;" but he concludes, "Yet must not we put the 
strong law on him." (Act IV, Scene III.) 

^IKent's Comm. 467; 1 Bl. Comm. 88; 1 Comyns Dig. 444. 

* Love's Labour's Lost, Act I, Scene I. 

'1 Bishop, Criminal Law, 641; 1 Stephen, Comm. 408. 

*Coke, Litt. 391. 

= 6 Coke, 63a, 63b; Coke, Litt. 130a; 1 Bishop, Criminal Law, 
641; 2 Gabbett, Criminal Law, ,538. Attainder is not known in 
the United States. 4 Kent's Comm. 413, 420. 



THE LAW IN SHAKESPEARE. 91 

Further on, in the same play, Rosalind said to Biron: 
"Ros. You must be purged too, your sins are rank; 
You are attaint with faults and perjury; 
Therefore, if you my favor mean to get, 
A twelvemonth shall you spend, and never rest. 
But seek the weary beds of people sick." (Act V, Scene II.) 
Replying to the accusation of Bagot, the Duke of Aumerle said: 
"Aum. What answer shall I make to this base man? 
Shall I so much dishonor my fair stars, 
On equal terms to give him chastisement? 
Either I must or have mine honour soiled. 
With the attainder of his slanderous lips." (King Richard II, 
Act IV, Scene I.) 
Referring to the father of Richard Plantagenet, Somerset asks 
him, in 1' Henry VI: ''Som. ... by his treason stand'st thou 
not attainted. Corrupted and exempt from ancient gentry?" 

And Plantagenet replies: "Plan. . . My father was at- 
tached, not attainted; condemn'd to die for treason, but no 
traitor." (Act II, Scene IV.) 

Somerset flouts the alleged treason of his father in the face of 
Richard Plantagenet, in 1' Henry VI, as follows: ''Som. . . 
His trespass yet lives guilty in thy blood. And, still thou be 
restor'd thou art a yeoman." (Act II, Scene IV.) 

Mortimer, referring to Richard Plantagenet's attainder, in 1' 
Henry VI, said: "And even since then hath Richard been obscur'd. 
Deprived of honour and inheritance." (Act II, Scene V.) 

In remitting the attainder of Richard Plantagenet, Henry VI 
said: "K. Hen. . . Therefore, my loving lords, our pleasure 
is. That Richard be restored to his blood." (Act III, Scene I.) 

King Henry tells Suffolk, in 1' Henry VI: "K. Hen. . . My 
tender youth was never yet attaint. With any passion of inflaming 
love." (Act V, Scene V.) 

In 2' Henry VI, Hume is made to say of the Duchess of Gloster: 
"Hume. Hume's knavery will be the duchess' wreck; And her 
attainture will be Hume's fall." (Act I, Scene II.) 

The vicious Queen Margaret is made to say to the duke of 
Gloster, on the arrest of his wife: "Q. Mar. Gloster, see here the 
tainture of thy nest; And look, thyself be faultless, thou wert 
best." (2' Henry VI, Act II, Scene I.) 

The duke of Gloster said to his unfortunate wife, in 2' Henry 
VI: "Olo. . . Ah, Nell, forbear; thou aimest all awry; I 
must offend, before I be attainted." (Act II, Scene IV.) 



92 THE LAW IN SHAKESPEARE. 

Sec. 63. Taken with the manner. 

^'Cost. The matter is to me sir, as concerning Jaquenatta. 
The manner of it is, I was taken with the manner."^ 

These lines refer to an arrest upon "hue and cry," 
when the thief is found with the stolen property on his 
person. Of this term Halliwell quotes from Termes de la 
Ley: "Maynour is when a thief has stolen and is fol- 
lowed with Hue and Cry, and taken, having that upon 
him, which he stole, and it is called Maynour. And so 
we used to say, when we find one doing of an unlawful 
act, that we took him with the Maynour, or Manner."^ 

The Scrivener, in presenting the indictment, after Hasting's 
death, in King Richard III, is made to say: "Scriv. And yet 
within these five hours, Hastings liv'd. Untainted, unexamined, 
free, at liberty." (Act III, Scene VI.) 

Dissembling, on seeing Lord Hasting's head, Richard II said, in 
King Richard III': "Glo. So smooth he daub'd his vice, with 
show of virtue, That, his apparent open guilt omitted — I mean his 
conversation with Shore's wife — He lived from all attainder of 
suspect." (Act III, Scene V.) 

Speaking of the Cardinal's act in the trial of Buckingham, for 
treason, a gentleman is made to say: "Gent. 'Tis likely, by all 
conjectures; First, Kildare's attainder, then deputy of Ireland." 
(Act II, Scene I.) 

Alexander tells Cressida, in Troilus and Cressida, speaking of 
Troilus: "Alex. . . there is no man hath a virtue that he 
hath not a glimpse of; nor any man an attaint, but he carries 
some stain of it." (Act I, Scene II.) 

Addressing his friend, in the LXXXVIII' Sonnet, the Poet said: 
"Upon thy part I can set down a story 
Of faults conceal'd, wherein I am attainted." (6, 7.) 

^ Love's Labour's Lost, Act I, Scene I. 

"See Tomlin's Law Dictionary; Bouvier's Law Dictionary. 

For an interesting case, where a thief was taken with the" 
Manour, see Year Book 30 and 31 Edw. 1 (Hor. Ed. 1863), p. 512, 
where a woman had committed burglary and larceny and was 
taken with the "mainour" and was brought before the justices, 
with the "mainour." 



THE LAW IN SHAKESPEARE. 93 

Sec. 64. "In manner and form." — 

"Cost. In manner and form following, sir; all those 
three: I was seen with her in the manor house, sit- 
ting with her upon the form and taken following 
her into the park ; which, put together is, in manner 
and form following."^ 

These terms are used not only in indictments, in set- 
ting out the charging part of the offense committed, at 
common law, but also in other formal legal documents. 
The play upon the formal words, in this instance, is by 
the use of another legal term, "manor house." In the 
English law, ''Manor" signified a tract of land originally 
granted by the King to a person of rank," part of which 
(terrae tenementales) , was given by the ''lord of the 
manor," to his followers or vassals, and the rest was re- 
tained by him under the name of his demesnes, or terrae 



In Henry IV, (Act II, Scene IV) Prince Hal thus refers to 
Falstaff's having been taken with the manner: 

"P. Hen. O villain, thou stolest a cup of sack eighteen years 
ago and wert taken with the manner, and ever since thou hast 
blushed extempore."^ 

Manner, is no doubt from the French word manier, and when' 
used as it is in this verse means about the same that the words 
imply to arrest a thief and find the stolen goods on his person. 
"Taken with the manner," means that he was arrested with the 
goods upon his person and as "recent possession of stolen prop- 
erty" raises a strong implication, in law, of the guilt of the person 
in whose possession the stolen property is found, so to be "taken 
with the manner" would be presumptive evidence of the guilt of 
Falstaff in the instance referred to. 

Commenting upon the right of arrest of those criminals who 
were taken in the act, Lord Coke said: "being taken with the 
manner, that is, with the thing stolen in his hand, which Bracton 
and Britton call -factum manifestum (Bracton lib. Ill, fol. 12; 
Britton, fol. 22), and so felons, openly known and notorious, they 
were not bailable." (2 Inst. 189.) 

And see II Reeve's History Eng. Law, p. 418. 

* Love's Labour's Lost, Act I, Scene I. 
'Coke, Litt. 58, 108; 2 Rolle, Abr. 121. 



94 THE LAW IN SHAKESPEARE. 

dominicales. The whole fee was called a lordship, or 
barony, and the court appendant to the "manor house" 
was called the court-baron.^ No new "manors" were 
created in England after the enactment of the statute 
Quia Emptores, prohibiting subinfeudation. ^ 

Sec. 65. — Venue and offense charged. — 

"King (Reads). The time when? About the sixth hour; 
when beasts most graze, birds best peck, and men sit 
down to that nourishment, which is called supper. 
So much for the time when. Now for the ground 
which ; which, I mean, 1 walked upon ; it is ycleped 
thy park. Then for the place where ; where, I mean, 
I did encounter that obscene and most preposterous 
event, that draAveth from my snow-white pen the 
ebon-coloured ink, which here thou viewest behold- 
est, surveyest or seest; but to the place where; It 
standeth north-north-east and by east from the west 
corner of thy curious knotted garden ; there did I 
see that low spirited swain, that base minnow of thy 
mirth, sorted and consorted, contrary to thy estab- 
lished proclaimed edict and continental cannon, 
etc."2 

This letter follows, in a satirical and ridiculous way, 
the charging part of a common law indictment, in setting 
forth the venue and the place where the offense was com- 
mitted and winds up, by charging the offense contrary 
to the form of the "established proclaimed edict," like an 
indictment ended, in charging the commission of the of- 
fense "contrary to the form of the statute," etc.* At com- 
mon law, in setting forth an offense, some certain place 



^ Bouvier's Law Dictionary. 

= This statute was passed in 1290. Tiedeman, R. P. (3 Ed.), 
Sec. 23; 1 Washburn, R. P. 30. 

' Love's Labour's Lost, Act I, Scene I. 

* These legal terms were used as terms of art, at common law. 
for which none others were found to so fully fill the same office, 
in charging offenses known to the law. 4 Bl. Comm. 301 : 1 
Chitty, Cr. Law, 230; Hawkins, PI. Cr. b, 2, c, 25, Sec. 57. 



THE LAW IN SHAKESPEARE. 95 

had to be alleged as the place of occurrence of each tra- 
versable fact.^ The place was set forth with great de- 
tail, as in this form used by the Poet, or by use of similar 
legal phrases, to designate the place, after which the of- 
fense was charged, as here, it is stated that he "sorted and 
consorted," AAdiich is also charged to have been "contrary 
to thy established proclaimed edict and continental can- 
non," meaning that it was "contrary to the form of the 
statute," as the offense would be charged at common 
law.^ 

Sec. 66. — ^Inheritance, Dowry. — 

''Boyet. Now, madam, summon up your dearest spirits; 
Consider who the king, your father, sends ; 
To whom he sends; and what's his embassey; 
Yourself, held precious in the world's esteem, 
To parley with the sole inheritor 
Of all perfections that a man may owe, 
Matchless Navarre; the plea of no less weight 
Than Aquittain ; a dowry for a queen. "^ 

Boyet here impresses the Princess with the importance 
of her embassy, by complimenting her own prowess and 
prerogatives and by emphasizing the no less royal impor- 
tance of the King of Navarre, to whom the public mes- 
sage from her father's court, is borne. Then by way of 
further suggestion of the importance of the mission, it is 
reminded that the title of Aquittain is involved, which is, 
in itself, a "dowry for a queen." An inheritance, is a 
perpetuity in land to a man and his heirs, or the right 
to succeed to the estate of a person who dies intestate.* 
Navarre is spoken of as the "inheritor" of "the perfections 
that a man may owe," meaning that he inherited these 
perfections, which were transmitted to him, by his father. 
"Dowry" was the wedding portion which a bride brought 



^ Comyns Dig. Pleader, c. 20. 

= Coke, Litt. 125. 

^Love's Labour's Lost, Act II, Scene I. 

* Littleton, Sec. 9. 



96 THE LAW IN SHAKESPEARE. 

her husband.^ And the value of Aquittain is here en- 
hanced as being fit for a queen. 



^Coke, Litt. 31. 

King John is made to say, to Phillip, of France: "If that the 
Dauphin there, thy princely son, Can in this book of beauty read, 
I love. Her dowry shall weigh equal with a queen." (Act II, 
Scene I.) 

As an apt illustration of the frequency with which legal terms 
are correctly used by the Poet, when the necessity therefor occurs, 
note the following references to dowry, in Taming Of The Shrew: 

"Ore. I had as lief take her dowry, with this condition — to be 
whipped at the high-cross every morning." (Act I, Scene I.) 

"Hot. Here is a gentleman, whom by chance I met, upon agree- 
ment from us to his liking, will undertake to woo curst Katharine; 
yea, and to marry her, if her dowry please." (Act I, Scene II.) 

"Pet. Then tell me — if I get your daughter's love. What dowry 
shall I have, with her to wife?" 

"Bap. After my death, the one-half of my lands; and, in posses- 
sion, twenty thousand crowns." 

"Pet. And, for that dowry, I'll assure her of her widow-hood." 
(Act II, Scene I.) 

"Pet. Your father hath consented that you shall be my wife; 
your dowry 'greed on; and will you, nill you, I will marry you." 
(Act II, Scene I.) 

"Bap. And he, of both, that can assure my daughter greatest 
dower, shall have Bianca's love." (Act II, Scene I.) 

"Tra. My father is here looked for every day. To pass assur- 
ance of a dower in marriage." (Act IV, Scene II.) 

"Bap. And, therefore, if you say no more than this. That like 
a father you will deal with him, And pass my daughter a suflBcient 
dower, The match is fully made, and all is done." (Act IV, 
Scene I.) 

"Pet. Wonder not, nor be not grieved; she is of good esteem. 
Her dowry wealthy and of worthy birth." (Act IV, Scene I.) 

"Bap. I will add unto their losses, twenty thousand crowns; 
Another dowry to another daughter, for she is changed as she had 
never been." (Act V, Scene II.) 

In King John, the Earl of Pembroke said to Lord Salisbury: 
"Stay let. Lord Salisbury, I'll go with thee, And find the inheri- 



THE LAW IN SHAKESPEARE. 97 

tance of this poor child, His little kingdom of a forced grave." 
(Act IV, Scene II.) 

The Archbishop of Canterbury, in Henry V, said to the King: 
"Cant. . . in the book of Numbers is it writ — When the son 
dies, let the inheritance descend unto the daughter." (Act I, 
Scene II.) 

Gloster, speaking of the offer of his daughter to the king, by 
the Earl of Armagnac, in 1' Henry VI, said: "GZo. Proffers his 
only daughter to your grace, in marriage, with a large and sump- 
tuous dowry." Her beauty and the value of her dower. He 
doth intend she shall be England's queen." (Act V, Scene I.) 

Contesting for the several hands of their favorites for the King. 
Exeter and Suffolk, in V Henry VI, said: "Exe. Besides, his 
wealth does warrant liberal dower; While Reignier sooner will 
receive, than give. Suff. A dower, my lords; disgrace not so 
your king. That he should be so abject, base and poor, To choose 
for wealth and not for perfect love." (Act V, Scene V.) 

In 2' Henry VI, the peasant, Iden, said: "Men. This small 
inheritance, my father left me, Contenteth me and is worth a 
monarchy." (Act IV, Scene V.) 

In 3' Henry VI, York asserts title to the crown, in the follow- 
ing language: "York. 'Twas my inheritance as the earldom 
was." (Act I, Scene I.) 

The Senators urge Alcibiades to show mercy and deny that 
crimes are hereditary, in Timon of Athens: 
"1 Sen. All have not offended; 

For those that were, it is not square to take, 
On those that are, revenge: crimes, like lands. 
Are not inherited." (Act V, Scene V.) 

Lear asks the duke of Burgundy: "What, in the least. Will 
you require in present dower with her, Or cease your quest of 
love," in discarding his daughter, Cordelia. (Act I, Scene I.) 

King Lear before division of his property among his daugh- 
ters said: "Lear. We have this hour a constant will to publish. 
Our daughters several dowers, that future strife may be pre- 
vented now." (Act I, Scene I.) 

And to Cordelia, he decrees: "Thy truth, then, be thy dower." 
idem. 

Cleon tells the Lord, in Pericles, Prince of Tyre, that 
"One sorrow never comes, but brings an heir, 
That may succeed as an inheritor." (Act I, Scene IV.) 



98 THE LAW IN SHAKESPEARE. 

Sec. 67. Duties of solicitor. — 

"Prin. In that behalf, bold of your worthiness, we single 
you, 
As our best moving, fair solicitor: 
Tell him, the daughter of the king of France, 
On serious business, craving quick dispatch, 
Importunes personal conference with his grace; 
Haste, signify so much ; while we attend 
Like humble visaged suitors, his high will."^ 

The audience was thus sought by means of a solicitor. 
A solicitor is a person whose business it is to be employed 
in the care and management of law suits- and especially 
those pending in the English court of chancery. The 
solicitor, like the attorney, is required to act with perfect 
good faith, toward his client, or the suitor that he repre- 
sents. Here, the Princess not only adopted the solicitor 
to state the necessity for her audience, but adopted the 
attitude of her solicitor's client, in that she and her asso- 
ciates, ''like humble visaged suitors," would await his will. 
A suitor, of course, is one who is a party to a lawsuit;^ 
the character of waiting, with an humble visage, denotes 
the keen perception of the lawyer, used to seeing clients 
waiting upon the pleasure of the court, for no doubt, at 
Westminster, many such could be seen, in the Poet's day.* 

Sec. 68. Surety.— 

"King. . . Madam, your father here doth intimate, 
The payment of a hundred thousand crowns; 

* Love's Labour's Lost, Act II, Scene I. 
^ Bouvier's Law Dictionary. 

* Bouvier's Law Dictionary. 

* II Reeve's Hist. Eng. Law, 401, et suh. 

To follow out the reference of the Princess' attitude to a suitor, 
in a court, when the king arrives, she said: "Vouchsafe to read 
the purpose of my coming, and suddenly resolve me in my suit." 
(Love's Labour's Lost, Act II, Scene II.) 

Desdemona tells Cassio, in Othello, the Moor of Venice: "There- 
fore, be merry, Cassio; For thy solicitor shall rather die. Than 
give thy cause away." (Act III, Scene III.) 



THE LAW IN SHAKESPEARE. 99 

Being but the one-half of an entire sum, 
Disbursed by my father in his wars. 
But say, that he, or we, (as neither have) 
Received that sum; yet there remains unpaid, 
A hundred thousand more; in surety of the which. 
One part of Aquittain is bound to us, 
Although not valued to the money's worth. "^ 

The idea that the country of Aquittain could be bound 
to the King of Navarre, as a "surety," is not, speaking in 
strictly legal parlance, a proper term, but the sense of 
the suretyship here spoken of is that the country was held 
to indemnify the King of Navarre against loss on the debt 
referred to. A surety is usually a person who binds him- 
self to the payment of a certain sum. of money, or for 
the performance of something els^, for another, who is 
already bound therefor.^ The meaning here, of course is, 
that in lieu of other indemnity, the title of the King of 
France, to Aquittain, was held to guarantee the King of 
Navarre against loss on the debt referred to. 



' Love's Labour's Lost, Act II, Scene I. 
* Bouvier's Law Dictionary. 

At the death of King John, Prince Henry said: 
"Even so must I run on and even so stop. 
What surety of the world, what hope, what stay, 
When this was now a king, and now is clay." 

(Act V, Scene VII.) 
In King Richard II, Bolingbroke, after his coronation, thus 
addresses his Lords: 

"Boling. Lords, you that are here under our arrest, 
Procure your sureties for your days of answer." 

(Act IV, Scene I.) 
In 2' Henry IV, Lord Mowbray said, to Earl of Northumber- 
land: 

"Mow. . . The gentle archbishop of York is up. 
With well-appointed powers; he is a man, 
Who with a double surety binds his followers." 

(Act I, Scene 1.) 
In 2' Henry VI, Queen Margaret thus addresses York: "Q. Mar. 
Call hither Clifford; bid him come amain, to say, if that the 



100 THE LAW IN SHAKESPEARE. 

Sec. 69. Title.— 

"King. But that, it seems, he little purposeth. 
For here he doth demand to have repaid, 
A hundred thousand crowns; and not demands, 
On payment of a hundred thousand crowns. 
To have his title live in Aquittain."^ 

A title is defined as the means whereby the owner of 
land hath the just possession of his property.- A title 
enables a man, by right, to assert a property or owner- 
ship to land or other kind of property and to recover the 
possession thereof, if not in possession.^ . The King of 
France, having pledged the title that he had to Aquittain, 
here offered on payment of the certain sum remaining 
unpaid, to accept a full release and be restored to his 
title. If this offer was not accepted, he would assert his 
title, in any event. 



bastard boys of York, Shall be the surety for their traitor 
father." (Act V, Scene I.) 

The following occurs between Aenas and Agamemnon, in Troi- 
lus and Cressida: 

"Aena. May one, that is a herald and a prince. Do a fair 
message to his kingly ears? 

Agam. With surety stronger than Achilles arm, 'Fore all the 
Greekish heads. Which, with one voice, call Agamemnon head 
and general." (Act I, Scene II.) 

On the arrest of Coriolanus, Senators and Patricians, stand 
surety for him as follows: "Sen. & Pat. We'll surety him." 
(Act III. Scene I.) 

lago tells Roderigo, in Othello: 
"logo. I know not if t be true, 

But I, for mere suspicion in that kind, 

Will do, as if for surety." (Act I, Scene III.) 

Referring to his friend's love, in the CXXXIV Sonnet, the 
Poet said: 

"He learned but surety-like to write for me. 
Under that bond that him as fast doth bind." (7, 8.) 

* Love's Labour's Lost, Act II, Scene I. 
•Coke, Litt. 345; 2 Bl. Comm. 195. 
'Ante idem. 



THE LAW IN SHAKESPEARE. 101 

Sec. 70. Common-Severalty. — 

"Mar. Not so, gentle beast; 

My lips are no common, though several they be."^ 

This is a play upon terms familiar to the student of real 
property. The speaker's lips are compared to an estate 
which either may be held in common, or in severalty. 
An estate held in severalty is one held by a tenant in his 
own right alone, without any one else being joined with 
him during the continuance of the estate,- while an estate 
in common is one held by two or more persons at the 
same time, although by several and distinct titles.^ The 
right of easement known as "common appendant," which 
was the right of pasturage annexed to land, on which the 
owner had the privilege of feeding his beasts on the waste 
of the manor,^ is probably the reference made in the use 
of the first term, from the preceding verse. This right, 
by usage could be limited to some certain number of cat- 
tle, or otherwise to the number of cattle owned by the 
owner of the right.^ 

The earl of Salisbury, thus explains tr> king Henry, his reasons 
for supporting the title of York, to the crown, in 2' Henry VI: , 
"Sal. My lord, I have considered with myself, 
The title of this most renowned duke; 
And in my conscience do repute his grace, 
The rightful heir to England's royal seat." 

(Act V, Scene I.) 
York claims title to the crown, in 3' Henry VI, as follows: 
"York. Will you, we show our title to the crown? 
If not, our swords shall plead it in the field." 

(Act I, Scene I.) 
And Henry replies: 
"K. Hen. What title hast thou, traitor, to the crown? 
Thy father was, as thou art, duke of York." idem. 

* Love's Labour's Lost, Act II, Scene I. 
*2 Bl. Comm. 179; Tiedeman, R. P. (3' Ed.) 26, 174. 
'2 Bl. Comm. 191; 1 Preston, Est, 139. 
*6 Coke, 59; 1 Rolle, Abr. 396. 

'2 Dane, Abr, 611; 2 Mood. & R. 205; 4 Coke 36; Tiedeman, 
R. P. (3' Ed.) Sees. 424, 426. 



102 THE LAW IN SHAKESPEARE. 

Sec. 71. Crime of perjury. — 

''Prin. ... I hear your grace hath sworn out house- 
keeping ; 
'Tis daily sin to keep that oath, my lord, and sin to 

break it: 
, . . . You will the sooner that I were away ; 
For you'll prove perjured, if you make me stay."^ 



"Prin. This field shall hold me ; and so hold your vow ; 

Nor God, nor I, delight in perjur'd men 

As the unsullied lilly, I protest; 

A world of torments, though I should endure, 

I would not yield to be your house's guest ; 

So much I hate a breaking cause to be 

Of heavenly oaths, vow'd with integrity 

Biron. Thus pour the stars down plagues for perjury."- 

It is inaccurate to treat the violation of the oath sub- 
scribed to by the King and his associates as "perjury," 
because the same was not made in a judicial proceeding, 
in due course of justice, which is and was, at common law, 
an essential of the crime. Sir Edward Coke thus defined 
this crime at common law, saying that it is committed 
"where a lawful oath is administered in some judicial pro- 
ceeding or due course of justice, to a person who swears 
wilfully, absolutely and falsely, in a matter material to 
the issue or point in question."^ It is doubtful if the viola- 
tion of the oath subscribed to by the King and his asso- 
ciates, in this instance would have constituted a crime at 
common law, at all, or, if so, it would have amounted to 
the making of a false affidavit. But of course the Princess 
and her associates aggravate the offense, for a purpose 
and refuse the invitation to be a guest of the King, so 

* Love's Labour's Lost, Act II, Scene II. 

^ Love's Labour's Lost, Act V, Scene II. 

«3 Coke Inst. 164; 2 Bishop, Criminal Law, 860; Sherwood's 
Cr. Law, 391. This would be an extra-judicial oath, or one taken 
without authority of law. Though binding in foro conscientia, 
such oaths when violated, would not render the person so violat- 
ing, liable for perjury. 



THE LAW IN SHAKESPEARE. 103 

that they may not be the cause of his violating his oath, 
which is treated as of the same solemnity, before heaven, 
as if criminal before the law. And Biron concludes that 
this is a proper punishment for the offense committed, 
before heaven, if its the only punishment to be inflicted. 

Sec. 72. Denial of receipt. — 

"Prin. You do the king, my father, too much wrong, 
And wrong the reputation of your name. 
In so unseeming to confess receipt, 
Of that which hath so faithfully been paid."^ 

A receipt is generally defined to be a written acknowl- 
edgement of the payment of money, or of the delivery and 

In King John, Constance is made to say: "Nay, rather, turn 
this day out of the week; this day of shame, oppression, per- 
jury. . . . Arm, arm, you heavens, against these perjur'd 
kings." (Act III, Scene I.) 

Richard III, after his dream, before the battle with Richmond, 
exclaims: 

"E. Rich. . . Perjury, perjury, in the highest degree; . . . 
All several sins, all us'd in each degree." 

(Act V, Scene III.) 
Caesar tells Euphronius, in Antony and Cleopatra: 
"Coes. But want will perjure the ne'er touch'd vestal." 

(Act III, Scene X.) 
In Romeo and Juliet (Act II, Scene II), Juliet tells Romeo 
that Jove laughs "at lover's perjuries." 

Othello cautions Desdemona before killing her: "Sweet soul, 
take heed; Take heed of perjury, thou'rt on thy death bed." 
(Act V, Scene II.) 
In the CLII' Sonnet, the following occurs: 
"But why of two oaths' breach do I accuse thee. 
When I break twenty: I am perjured most. 

• •••"••••• 

For I have sworn thee fair; more perjured I, 
To swear against the truth so foul a lie." (5, 6, 13, 14.) 
In the Passionate Pilgrim, occurs the following: 
"Did not the heavenly rhetoric of thine eye, 
'Gainst whom the world could not hold argument. 
Persuade my heart to this false perjury?" (Ill, 1, 3.) 

* Love's Labour's Lost, Act II, Scene I. 



104 THE LAW IN SHAKESPEARE. 

acceptance of something in lieu thereof.^ While subject 
to explanation by parol evidence, unlike other written 
instruments,^ receipts are sometimes useful, as evidence of" 
facts collateral to those things set forth in the receipt; 
they establish the payment made and whatever inference 
may be legally drawn from the fact of the payment made 
will be supported by the receipt itself.^ A denial of one's 
receipt is like the denial of any other obligation or ac- 
knowledgment, over one's signature and hence the con- 
clusion of the Princess, that the King wronged the repu- 
tation of his name, in refusing to confess the receipt of a 
sum that had "so faithfully been paid." 

Sec. 73. Specialties — Acquittances. — 

"Prin. We arrest your word: 

Boyet, you can produce acquittances. 

For such a sum, from special officers. 

Of Charles, his father 

Boyet. So please your grace, the packet is not come, 

Where that and other specialties are bound, 

Tomorrow you shall have a sight of them."* 

An acquittance, in the law of contracts, is a written 
agreement to discharge a party from his engagement to 
pay a given sum of money." ^ Like a receipt, it is evidence 
of the payment, but it differs from a release, or specialty, 
in that the latter is always under seal,^ while an acquit- 
tance is not under seal. A specialty is a writing contain- 
ing some agreement, which is sealed and delivered.^ In 
the sense in which the word is used in this verse, it is 
a writing sealed and delivered, which is given as evidence 

^ Bouvier's Law Dictionary. 
-1 Pet. C. C. 182; 2 Johns. N. Y. 378. 
^15 Johns. N. Y. 479. 
'Love's Labour's Lost, Act II, Scene I. 
^Bouvier's Law Dictionary. 

"Pothier, Oblig. n. 781; Coke, Litt. 212a, 273a; 3 Salk, 298; 1 
Rawle (Pa.) 391. 
■'Bouvier's Law Dictionary. 



THE LAW IN SHAKESPEARE. 105 

of the payment of a debt, in which the same is specially 
mentioned.^ Although a seal may not be called for 
therein, if an instrument is executed with a seal, it is 
a specialty, while it is not a specialty if the seal is omit- 
ted.- The Princess does not dignify the receipt for this 
debt, by placing it on the higher plane with sealed instru- 
ments, but Boyet recognizes the distinction existing in the 
law between the two and promises on arrival of the packet, 
the sight of a sealed instrument acknowledging receipt 
of the debt. 

Sec. 74. Apparitors — Duties of. — 

"Biron. . . . Dread prince of plackets, king of cod- 
pieces, 
Sole imperator and great general 
Of trotting paritors."^ 

Cupid is here likened to the general of a body of ap- 
paritors, whose movements and actions he governs, as he 
does those of other mortals. An apparitor was an officer 

* Bacon's Abr. Obligation, A. 
-2 Coke, 5a; Perkins, 129, 

Bassanio acknowledges his obligation to Portia, for the acquit- 
tance given from the Jew, in the following verse: "Most worthy- 
gentleman, I and my friend, Have by your wisdom been this day 
acquitted. Of grievous penalties; in lieu whereof. Three thousand 
ducats due unto the Jew, We freely cope your courteous pains 
withal." (Merchant of Venice, Act IV, Scene I.) 

In Taming of the Shrew (Act II, Scene I), Petruchio is made 
to say: 

"Let specialties be therefore drawn between us, 
That covenants may be kept, on either hand." 

A Lord, in Timon of Athens, speaking of his generosity, said: 
"2 Lord. . . no gift to him, but breeds the giver a return 
exceeding all use of quittance." (Act I, Scene I.) 

And the King tells Laertes, in Hamlet: "Now must your 
conscience my acquittance seal. And you must put me in your 
heart for friend." (Act IV, Scene VII.) 

'Love's Labour's Lost, Act III, Scene I. 



106 THE LAW IN SHAKESPEARE. 

of an ecclesiastical court, whose duty it was to serve cita- 
tions and execute such similar process of the court. ^ In 
these courts citations were most frequently issued for 
offenses against chastity and these officers were thus called 
upon often to serve process in these offenses prompted by 
Cupid. Hence, the reference, to the God of Love, as the 
general of this special class of officers.^ 

Sec. 75. Enfranchising one. — 

"Arm. Sirrah Costard, I will enfranchise thee. 

Cos. 0, marry me to one Frances : I smell some I' envoy, 
some goose, in this. 

AvTYi. By my sweet soul, I mean, setting thee at liberty, 
enfreedoming thy person ; thou wert immured, re- 
strained, captivated, bound. "^ 

As explained by the players in this verse the word "en- 
franchise" in the law, literally means to set free.* En- 
franchisement is giving freedom to a person, hence a 
citizen of London is said to be enfranchised. And. at 
common law, a villain was said to be enfranchised when 
he had ol)tained his freedom from his lord paramount, un- 
der the land tenure law.^ Being the opposite of "im- 
mured, restrained," etc., the Poet expresses the legal mean- 
ing of the term as it is understood in the law. 



^ Bouvier's Law Dictionary. 

- Rolfe's Love's Labour's Lost, p. 176, notes. 

^ Love's Labour's Lost, Act IIL Scene I. 

* Bouvier's Law Dictionary. 

^11 Coke, 91. 

In Antony and Cleopatra, Cleopatra thus addresses Antony: 
"Cleo. . . Or, who knows. 

If the scarce-bearded Csesar have not sent 
His powerful mandate to you. Bo this, or this: 
Take in that kingdom, and enfranchise that; 
Perform' t. or else we damn thee" (Act I, Scene I.) 

In Julius Caesar, before the assassination, Cassius is made to 
say: 



THE LAW IN SHAKESPEARE. 107 

Sec. 76. Treason. — 

"Biron. To fast, — to study, — and to see no woman. 
Flat treason 'gainst the kingly state of youth. "^ 

Treason, in the law, implies a betrayal, or breach of 
allegiance, amounting to treachery,^ hence the conclusion 
that to study and to fast "and to see no woman," is a 
course so inconsistent with the primary obligations of 
youth, as to amount to ''flat treason." The overt act of 
making war against a country to which allegiance is due 
from the person raising arms, is an act of treason,^ and 
this course of conduct is so at war with youth, that it 
could also be considered treason, for this reason, as well. 



''Cas. Pardon, Caesar; Caesar, pardon; 

As low as to thy foot doth Cassius fall, 
To beg enfranchisement for Publius Clmber." 
Having been banished from Rome Publius Cimber lost all his 
rights and privileges as a citizen of Rome and Brutus and 
Cassius begged Caesar not only to admit him to a full pardon, but 
to likewise restore him to the privileges of his citizenship, or 
to enfranchise him. (Julius Cffisar, Act III, Scene I.) 

* Love's Labour's Lost, Act IV, Scene III. 

=" 4 Shars. Bl. Comm. 75. 

«2 Chitty, Cr. Law, 60-102; 3 Story, Const. 39. 

In King Richard II, the Duke of Norfolk, replies to Boling- 
broke: 

''Nor. . . First, the fair reverence of your highness curbs me. 
From giving reins and spurs to my free speech; 
Which else would post, until it had return'd 
These terms of treason doubled down his throat." 

(Act I, Scene I.) 

And King Richard II, speaking of Bolingbroke, said: 
"K. Rich. Tell Bolingbroke (for yond', methinks, he is,) 
That every stride he makes upon my land, 
Is dangerous treason." (Act III, Scene III.) 

The Earl of Worcester, is quoted as saying, in 1' Henry IV: 
''Wor. . . Suspicion shall be all stuck full of eyes: For treason 
is but trusted like the fox." (Act V, Scene II.) 



108 THE LAW IN SHAKESPEARE. 

Speaking of the treason and attempt to kill him, Henry V, 
said: ''A'. Hen. . . Treason and murder, ever kept together, 
as two j'^oke-devils sworn to either's purpose, working so grossly 
in a natural cause, that admiration did not whoop at them: but 
thou, 'gainst all proportion did bring in, wonder, to wait on 
treason, and on murder." (Act II, Scene II.) 

Speaking to the traitors, who conspired to kill him, Henry V, 
said: "K. Hen. But he, that temper'd thee, bade thee stand 
up, gave thee no instance why thou should'st do treason, unless 
to dun thee with the name of traitor." (Act II, Scene II.) 

Somerset asks Richard Plantagenet, in 1' Henry VI: "Som. . . 
Was not thy father, Richard, earl of Cambridge, for treason 
executed in our late king's days?" (Act II, Scene IV.) 

Talbot, before Rouen, in 1' Henry VI, is made to say: "Tal. 
France thou shalt rue this treason with thy tears, if Talbot but 
survive thy treachery." (Act III, Scene II.) 

In 2' Henry VI, the king resents the idea that the duke of 
Gloster was guilty of treason, in the following language: "K. 
Hen. . . Our kinsman, Gloster is as innocent From meaning 
treason to our royal person, As is the sucking lamb, or harmless 
dove." (Act III, Scene I.) 

Suffolk said to Gloster, in 2' Henry VI: "Suff. Nay, Gloster, 
know, that thou art come too soon. Unless thou wert more loyal 
than thou art: I do arrest thee of high treason." (Act III, 
Scene I.) 

In attempting to make Gloster the instigator of his wife's 
treason, Suffolk said, in 2' Henry VI: "Suff. . . Smooth runs 
the water where the brook is deep; And in his simple show, he 
harbors treason. The fox barks not, when he would steal the 
lamb." (Act III, Scene I.) 

Warwick says of Clarence, after he quit his forces, in 3' Henry 
VI: "War. 0, passing traitor, perjur'd and unjust." (Act V, 
Scene I.) 

Speaking of the alleged treason of Buckingham, King Henry 
VIII, is made to say: "K. Hen. He is attach'd; call him to 
present trial; if he may find mercy in the law, 'tis his; if none, 
let him not seek't of us; By day and night, he's traitor to the 
height." (Act I, Scene II.) 

In his attempt to prevent a ratification of the peace treaty 
closed by Coriolanus, with Rome, Aufidius tells the citizens: 
"Auf. Read it not, noble lords; But tell the traitor, in the high- 
est degree, he hath abus'd your powers." (Act V, Scene V.) 



THE LAW IN SHAKESPEARE. 109 

Sec. 77. Quillets of the law. — 

"Long. O, some authority how to proceed, 

Some tricks, some quillets, how to cheat the devil. "^ 

"Quillet," is no doubt derived from quidlibet, meaning 
what you please. A subtle, nice point of law, is referred 
to as a ''quillet" and the term is used as a synonym for 
quibble.- The thought of the player is that the viola- 
tion of the oath was without excuse and unless by some 
trick, or quibble, they could avoid it, the devil would be 
rewarded for their transgression. Of course a "quillet" 
or quibble^ is generally a cavil raised without necessity 
and it may be doubted, from a professional standpoint, if 
any lawyer is justified in causing such questions, in an 
argument. 

The king tells his wife, in Hamlet, in regard to Laertes threats: 
"Let him go, Gertrude; do not fear our person; 
There's such divinity doth hedge a king, 
That treason can but peep to what it would. 
Acts little of his will." (Act IV, Scene V.) 

Referring to the pure Lucrece, and Tarquin's attack upon her 
chastity, the Poet said, in The Rape of Lucrece: 

"The dove sleeps fast that this night-owl will catch: 
Thus treason works, ere traitors be espied." (360, 361.) 

' Love's Labour's Lost, Act IV, Scene III. 

^Webster's Dictionary. 

'Bouvier's Law Dictionary. Mr. Bouvier says: "No justly 
eminent member of the bar will resort to a quibble in his argu- 
ment. It is contrary to his oath, which is to be true to the court, 
as well as to his client; and bad policy, because by resorting 
to it, he will lose his character as a man of probity." 

Warwick, in replying to Somerset's request to judge 'between 
himself and Richard Plantagenet, in 1' Henry VI, said: 
"War. . . I have, perhaps, some shallow spirit of judgment; 

But in these nice, sharp quillets of the law. 

Good faith, I am no wiser than a daw. " (Act II, Scene IV.) 

Suffolk thus urges the death of the good Gloster, in 2' Henry VI: 
"Suff. . . And do not stand on quillets, how to slay him: 

Be it by gins, by snares, by subtlety. 

Sleeping or waking, 'tis no matter how, 

So he be dead, for that is good deceit. " (Act III, Scene I.) 



110 THE LAW IN SHAKESPEARE. 

Sec. 78. Statute-caps. — 

"Rosaline. Well, better wits have worn plain statute-caps. 
But will you hear? the king is my love sworn. "^ 

During the reign of Queen Elizabeth, it was not infre- 
quent that laws were passed ostensibly for the betterment 
of the general class of citizens but really favorable to some 
particular class. In the year 1571 an act of Parliament 
was passed in the interest of the trade of cappers, which 
required all citizens, other than the nobility, and those 
excepted, to wear woolen caps on Sundays and holidays, 
under the pain and penalties of the statute.^ 

As this law only required the citizens or common people 
to wear woolen caps, the meaning is plain, that better 
wits could be found among the plain people than the 
King and his followers. 

Timon of Athens, said, "Tim. Crack the lawyer's voice, 
That he may never more false titles plead, Nor sound his quillets 
shrilly." (Act IV, Scene III.) 

In Hamlet, when the Prince comes upon the grave diggers and 
he talks of the skull of the supposed lawyer, he speaks of "his 
quiddits, his quillets, his cases, his tenures, and his tricks." 
(Act V, Scene I.) 

In the controversy with the Clown, in Othello, the Moor of 
Venice, Cassio is made to say: "Pr'ythee, keep up thy quillets." 
(Act III, Scene I.) 

^Love's Labour's Lost, Act V, Scene II. 

-V Reeve's History English Law, 238; Rolfe's Love's Labour's 
Lost, p. 205, notes. 



CHAPTER IX. 

"THE MERCHANT OF VENICE." 

Sec. 79. Warranty. 

80. Breach of Bond— Penalty for. 

81. Sealing written instrument. 

82. Extorting evidence upon the Rack. 

83. Usurer. 

84. Plea of Forfeiture. 

85. "The course of Law." 

86. Bond. 

87. Standing for Law. 

88. Seal. 

89. Moiety. 

90. Charter. 

91. The Issue before the Court. 

92. Nature of Shylock's suit. 

93. Portia's plea for Mercy. 

94. Antonio's confession of the bond. 

95. Plea for judgment. 

96. Justice of Shylock's plea. 

97. "I crave the Law." 

98. Tender in open Court. 

99. Effect of legal precedent. 

100. Portia's judgment on the bond. 

101. Commutation of punishment. 

102. Conveyance in use. 

103. Deed of gift. 

Sec. 79. Warranty. — 

*'Bass. To you, Antonio, I owe the most, in money and 
in love; 
And from your love I have a warranty, 
To unburthen all my plots and purposes, 
How to get clear of all the debts I owe."'^ 

A "warranty," in real property, was a covenant, where- 
by the grantor of an estate of freehold was bound to war- 

• Merchant of Venice, Act I, Scene II. 

(Ill) 



112 THE LAW IN SHAKESPEARE. 

rant the title and either upon voucher or upon eviction, 
to yield lands of an equal value Avith those from which 
the tenant was evicted.^ In the old practice, the war- 
rantor was called into court, by the party warranted to 
defend the suit for him and the time for the voucher was 
after the demandant had counted.- The thought expressed 
by Bassanio is that the love of Antonio was to stand 
sponsor for all his debts or that by his love his debts 
were to be warranted. 

Sec. 80. Breach of bond — penalty for. — 

"Ant. If thou w^ilt lend this money, lend it not 

As to thy friends (for when did friendship take 

A breed for barren metal of his friend?) 

But lend it rather to thine enemy ; 

Who, if he break, thou may'st with better face 

Exact the penalty."^ 

It was remarked by Lord Bacon, in one of his Essays,* 
that people were wont to say that it was "against nature, 
for money to beget money"; Antonio expresses this same 
thought in his philosophy that friendship would not exact 
a breed "for barren metal." He asked no special favor 
or courtesy, but only that in case he failed to keep his 
bond, that the penalty be exacted. 

A penalty is the undertaking to pay an additional sum 
of money or to submit to punishment of a certain kind, 
if there shall be a failure to fulfill the contract obligation.^ 
The term is mostly applied to pecuniary punishment,^ but 
may as well include the corporal punishment included in 
the obligation of this bond, in case of a breach of its 
condition. 



'Coke, Litt. 365a. 

= Coke, Litt. 101b. 

'Merchant of Venice, Act I, Scene III. 

* Civil & Moral Essay, No. 41. 

^Bouvier's Law Dictionary. 

«8 Comyns Dig. 846. 



THE LAW IN SHAKESPEARE. 113 

Sec. 81. Sealing a written instrument. — 

"Shy. Go with me to a notary; seal me there 
Your single bond; and, in a merry sport, 
If you repay me not on such a day, 
In such a place, such sum, or sums, as are 
Expressed in the condition, let the forfeit, 
Be nominated for an equal pound 
Of your fair flesh, to be cut off and taken 
In what part of your body pleaseth me. 

Ant. Content, in faith: I'll seal to such a bond, 

And say, there is much kindness in the Jew, .... 
Yes, Shylock, I will seal unto this bond."^ 

The distinction between a singular bond and a reg- 
ular bond with principal and surety, in common form, 
is recognized by the Poet in Shylock's request for a 
"single bond," but in demanding the sealing of such 
bond, the English legal requisite to a valid spe- 
cialty contract is likewise recognized. The novelty 
of making written instruments with seals of wax 
and other ceremonies, was introduced into England by 
the Normans." Such instruments were originally brought 
into court ; either the king's court, the court of the county, 
or into some assembly and there the act of making and 
acknowledging the instrument was performed.^ When 
the instruments were not executed in this public manner, 
they were usually attested by men of character and prom- 
inence, or by officers of the king, notaries, or such like, 
or by the mayor, bailiff or some such civil officer.* The 
"condition" of a bond is that part which specifies the agree- 

^ Merchant of Venice, Act I, Scene III. 

^ I Reeve's History English Law, p. 336. 

' In practice, a wafer or seal was attached to the end of the 
writing, and the party who executed it, after his signature put 
his finger on the seal and said: "I deliver this as my act and 
deed," at the same time handing the writing over. Mad Form. 
Biss. 26; 1 Reeves History Eng. Law, p. 337. 

*l Reeve's History Eng. Law, 337. 



114 THE LAW IN SHAKESPEARE. 

ment between the parties and the sum to be paid, on the 
breach of the obligation, is called the forfeit.^ 

Shylock's invitation to go with him to the "notary," 
had reference to this legal ceremony of signing and seal- 
ing the bond, and Antonio's consent to "seal to such a 
bond" expresses, in common legal parlance, the familiarity 
of one used to such a ceremony, and his willingness to 
put the obligation in the legal form of a binding specialty 
contract. 



^ Bouvier's Law Dictionary. 

A "single bond," — simplex obligatio — is one in which the 
obligor binds himself, his heirs, etc., to pay a certain sum of 
money to another at a day named. (Bouvier's Law Dictionary.) 
It is properly to be distinguished from a conditional bond, in 
that the former does not contain the same form in law, as the 
latter, which is conditioned that if the obligor does some act, 
the bond is to be void. It is passing strange that the Poet, if 
unlearned in the deep science and technicalities of the law, should 
have noted, in this verse this legal distinction between these 
different kinds of bonds and made of this bond, the kind the 
transaction made essential, instead of the other kind, that one 
less informed in the law would perhaps have selected, or, more 
likely, would have specialized no particular kind of bond at all. 
The substance and condition of this bond and the incidents of 
the forfeiture are related in the Gesta Romanorum, but there is 
little doubt, as stated by Hudson, but what the details and plot 
of the play were taken from the Italian novel by Giovanni 
Fiorentino, written in 1378, as the main points of this story are 
reproduced in the play, in a slightly transformed form. Bassanio 
corresponds to the hero in this novel, who had executed the bond 
to the Jew, and his intended bride, disguised as a doctor of law 
so construes the bond as to deny the Jew his pound of flesh, in 
substantially the same way in which the bond was construed by 
Portia. (See Introduction to Hudson's Merchant of Venice, pp. 
50, 51.) 

Glendower is quoted as saying, in 1' Henry IV: 
"Glen. Come, come, lord Mortimer; you are as slow. 
As hot lord Percy is on fire to go. 
By this our book's drawn: we'll but seal, and then 
To horse immediately." (Act III, Scene I.) 



THE LAW IN SHAKESPEARE. 115 

Sec. 82. Extorting evidence upon the rack. — 

''Por. Ay, but I fear, you speak upon the rack, 
Where men enforced do speak anything."* 



Alluding to the old custom of sealing instruments with soft 
wax, Falstaff, in 2' Henry IV, refers to his meeting with Justice 
Shallow, as follows: ''Fal. . . . I'll through Glostershire; 
and there will I visit master Robert Shallow, esquire; I have him 
already tempering between my finger and my thumb and shortly 
will I seal with him." (Act IV, Scene III.) 

Pandarus tells Troilus and Cressida, after the details of their 
pre-contract of marriage, are agreed to: "Pan. Go to, a bargain 
made; seal it, seal it; I'll be the witness." (Act III, Scene II.) 

The Senators tell Alcibiades, in urging clemency for the 
people of Athens, in Timon of Athens: 
"2 Sen. . . all thy powers, 

Shall make their harbour in our town, till we 
Have seal'd thy full desire." (Act V, Scene V.> 

Coriolanus tells the Citizens, on his return to the Volscians: 
"Cor. . . . And we here deliver, subscrib'd by the consuls 
and patricians, together with the seal o' the senate, what we have 
compounded on." (Act V, Scene V.) 

Pompey tells Lepidus, in Antony and Cleopatra: 
"Pom. I hope so, Lepidus. — Thus we are agreed: 
I crave our composition may be written. 
And seal'd between us." (Act II, Scene VI.) 

Enobarbus tells Agrippa, in Antony and Cleopatra: 
"Eno. They have despatched with Pompey, he is gone; 

The other three are sealing." (Act III, Scene II.) 

Antony, in his death, is made to refer to the legal formula of 
sealing, in the following lines: 
"Ant. . . . Now, all labour 

Mars what it does; yea, very force entangles 
Itself with strength; Seal then, and all is done." 

(Act IV, Scene XII.) 
Helicanus, in Pericles, Prince of Tyre, speaks of the "Seal'd 
commission, left in trust," with him, on the commencement of 
his journey, by king Pericles. (Act I, Scene III.) 

Simonides joins the hands of Pericles, Prince of Tyre, and his 
daughter Thasia, and tells them that their "hands and lips must 
seal it too." (Act II, Scene V.) 

* Merchant of Venice, Act III, Scene II. 



116 THE LAW IN SHAKESPEARE. 

The rack was an engine with which to torture a sup-> 
posed criminal to extort a confession of his crime from 
him, together with the names of his supposed accom- 
plices.^ It consisted of an oblong frame of wood, with 
four beams, raised from the ground, on which the witness 
was stretched and bound; cords were attached to his ex- 
tremities, and they were gradually stretched by means of 
a lever and pulleys, until the evidence was forthcoming, 
or the limbs of the sufferer were dislocated. The rack 
was used in England in the fifteenth and sixteenth cen- 
turies and according to Lord Coke it was first introduced 
into the Tower by the duke of Exeter, constable of the 
Tower, in 1447, from whence it derived the name, "the 
duke of Exeter's daughter." It is mentioned by Holin- 
shed, in 1467, and in the time of King Henry VIII, 
it became a common appliance for the torture of prisoners 
of the Tower. Punishment by the rack took place during 
the reign of the Tudor sovereigns, by warrant of the coun- 
cil, or under the sign-manual, but in 1628, on the 
murder of the duke of Buckingham, by Felton, when it 
was proposed in the privy council to put the assassin to 
the rack, to compel him to divulge his accomplices, the 
judges resisted the proceeding, because it was contrary 
to the English law. While it has never been used by 
the Americans, it was used by the French in Montreal, 
and is preserved as a relic of the French rule in that 
country.^ 

Qf course, when subjected to such torture, the witness 
was liable to state whatever was desired to be disclosed 
by him, hence Portia's reference to the enforced state- 
ments of Bassanio. 



*Bouvier's Law Dictionary. 
'^ Taylor's Elem. Civil Law. 

The wrists and ankles of the witness were fastened 'by cords 
attached to rollers at the end of the frame work, on which he was 
stretched. These rollers were then drawn in opposite directions, 
until the body of the victim was raised to a level with the 



THE LAW IN SHAKESPEARE. 117 

frame; if he refused to disclose what was asked him, or desired 
to be obtained, in response to the interrogatories submitted, the 
rollers were further moved until at last the bones were drawn 
from the sockets. (Americana.) 

When pressed for an answer, Falstaff is made to say, in 1' 
Henry IV (Act II, Scene IV) : "FaJ. What, upon compulsion? 
No, were I at the strappado, or all the racks in the world, I 
would not tell you, on compulsion." 

Edmund Mortimer, in 1' Henry VI, referring to his imprison- 
ment, said: "Mor. . . Even like a man nev/ haled from the 
rack, So fare my limbs with long imprisonment." (Act II, 
Scene V.) 

With others, the Cardinal Beaufort, upbraided the good Duke 
of Gloster in 2' Henry VI, as follows: "Car. The commons hast 
thou rack'd; the clergy's bags are lank and lean with thy extor- 
tions." (Act I, Scene III.) 

Referring to the fortitude of his tool, John Cade, the duke of 
York, in 2' Henry VI, said: "York. Say, he be taken, rack'd 
and tortured: I know no pain they can inflict upon him, will 
make him say — I mov'd him to those arms." (Act III, Scene I.) 

Cressida and Pandarus, in the colloquy over Troilus, in Troilua 
and Cressida say: "Pan. I can't choose but laugh, to think 
how she tickled his chin; — Indeed, she has a marvelous white 
hand, I must needs confess. 

Cres. Without the rack?" (Act I, Scene II.) 

Paulina refers to torture by the rack, in Winter's Tale, when 
she asks Leontes: "Paul. What studied torments, tyrant, hast 
forme? What wheels? racks? fires? What flaying," etc. (Act III, 
Scene II.) 

Antony tells Eros, in Antony and Cleopatra: "Ant. . . . 
That which is now a horse, even with a thought. The rack 
dislimns." (Act IV, Scene XII.) 

Lear refers to the rack, when he replies to Albany as follows: 
"0 most small fault. How ugly did'st thou, in Cordelia show: 
Which, like an engine wrenched my frame of nature. From the 
fix'd place." (Act I, Scene IV.) 

On the death of Lear, the Earl of Kent is made to say: 
"Kent. Vex not his ghost: — O, let him pass; lie hates him. 
That would upon the rack of this tough world 
Stretch him out longer." (Act V, Scene III.) 

Othello tells lago, after he has thoroughly aroused his jealousy: 
"Avaunt: be gone: thou hast set me on the rack." (Act III, 
Scene III.) 



118 THE LAW IN SHAKESPEARE. 

Sec. 83. Usurer. — 

^'Shy. . . . Let him look, to his bond: he was wont 
to call me usurer; — let him look to his bond: he was 
wont to lend money for a Christian courtesy; — let 
him look to his bond."^ 

Shylock's expressed animosity toward Antonio, because 
he was "wont to call me usurer," is in strict accordance 
with the history of the subject of usury, in England. The 
first usurers, in England, Avere the Jews.- During the 
Crusades, when everything but military glory and re- 
ligious zeal, was neglected by the Britons, the Jews, who 
had come from Normandy, after the Conquest, became 
the chief money lenders in England.^ On account of 
their rapacity, the Jewish money lenders were banished 
from England, near the close of the thirteenth century.* 
The church then attempted the handling of usurers, pun- 
ishing them, "for the good of their souls," by censures 
and excommunications,^ and from the fifteenth until the 
middle of the nineteenth century, in England, the sub- 
ject of usury was a fruitful source of legislation." The 
injunction of Moses, against the exaction of usury,'' which 



In the XXXIII' Sonnet, it is said: 
"Anon permit the basest clouds to ride 
With ugly rack on his celestial face. 
And from the forlorn world his visage hide. 
Stealing unseen to west with this disgrace." (5, 8.) 

The rack is referred to in the CXXVI' Sonnet, in these lines: 
"If Nature, sovereign mistress over wrack, 
As thou goest onwards, still will pluck thee back, 
She keeps thee to this purpose, that her skill 
May time disgrace and wretched minutes kill." (5, 8.) 

* Merchant of Venice, Act III, Scene II. 

*Webb, Usury, Sec. 9. 

'Kelly, on Usury, p. 17. 

*Epist. Paul Bleseus, 156, p. 242. 

"Roll. Abr. Tit. Usurers. 

•Webb, Usury, p. 8. 

'Lev. XXV., 35-37; Deut. XXIII., 19-20. 



THE LAW IN SHAKESPE.\KE. 119 

the Christian would naturally follow, is no doubt intended, 
in the reference, by Shylock, to the loaning of money as 
a ''Cliristian courtesy," but the Jew could claim the benefit 
of the dispensation of the Mosaic law, as it permitted such 
transactions with strangers.^ 



^Ante idem. Plow. 85; Fleta, lib. 2, c. 27. 

The Romans and Athenians attempted at divers times, the 
regulation of usury, without giving satisfaction to the people 
(IV Gibbon, Rome 368); the policy of maintaining some restric- 
tions upon money lenders is still prevalent, but usury is not 
now regarded with the same feeling that all who practice it are 
iniquitous, as they were formerly regarded. Webb, Usury, p. 13. 

Speaking of the prejudice against usurers, in both ancient and 
modern times. Lord Bacon, in his Essay (Civil and Moral, No. 
41) said: "Many have made witty invectives against usury. 
They say it is the pity the Devil should have God's part, which 
is the tithe; that the usurer is the greatest Sabbath breaker, 
because his plow goeth every Sunday; . . that the usurers 
breaketh the first law, that was made for mankind, after the 
fall, which was, in sudore vultus iui comedes partem tuum; 
that it is against nature for money to beget money and the 
like. . . . Few have spoken of usury usefully." 

But comparing money lenders with others whose cupidity for 
getting rich, is not materially different. Judge Lumkin, for the 
Georgia Supreme Court said: "They may be as inexorable as 
Shylock and the more selfish and callous, from the fact that 
they earn their living by dealing indirectly in money, the love 
of which is the root of all evil. But observation has convinced 
me that all who will be rich, whether usurers or land-jobbers, 
or speculators of any other class, . . fall, not only into divers 
temptations and snares, but soon become almost, if not alto- 
gether, regardless of the means by which they seek to attain 
their end." 

Gloster tells the Bishop of Winchester, in V Henry VI: 
"Glo. . . Thou art a most pernicious usurer." (Act III, 
Scene I.) 

Apemantus, the philosopher, in Timon -f Athens, said: "Apem. 
Poor rogues and usurer's men: bawds between gold and want." 
(Act n. Scene II.) 

And the fool said: "Fool. I think, no usurer but has a fool 



120 THE LAW IN SHAKESPEARE. 

Sec. 84. Plea of forfeiture.— 

"Sale. Never did I know a creature, 
That did bear the shape of man, 
So keen and greed}'- to confound a man: 
He plies the duke at morning and at night; 
And doth impeach the freedom of the state, 
If they deny him justice: twenty merchants, 
The duke himself, and the magnificoes, 
Of greatest port, have all persuaded with him; 
But none can drive him from the envious plea 
Of forfeiture, of justice, and his bond."^ 

Forfeitures have always been regarded with odium by 
the courts.- This fact was evidently known and appre- 
ciated by the Poet, for in this verse, he presents the most 
hideous plea for a forfeiture that could well be conceived, 
of a hated Jew, urging a forfeiture against a gentle and 
lovable person, in such manner as to encompass his life. 

to his servant: My mistress is one and I am her fool." (Act II, 
Scene II.) 

Alcibiades tells the Senate, on refusal of his plea for the life 
of his soldier client, in Timon of Athens: '^Alcil). Banish me? 
Banish your dotage; banish usury, that makes the Senate ugly." 
(Act III, Scene V.) 

Timon of Athens, in the forest tells Alcibiades: "Tim. Pity 
not honour'd age, for his white beard. He's an usurer." (Act IV, 
Scene III.) 

A citizen, in Coriolanus, said: "1 Cit. . . Suffer us to 
famish, and their store-houses crammed with grain; make edicts 
for usury, to support usurers." (Act I, Scene I.) 

In the sixth Sonnet, in urging the natural use of beauty, the 
Poet thus refers to usury: 

"That use is not forbidden usury, 
Which happies those that pay the willing loan." 
The incarceration of Southampton, is compared to the exac- 
tion of usury for the debt due by the Poet, in the CXXXIV 
Sonnet: 

"The statute of thy beauty thou wilt take. 
Thou usurer, that put'st forth all to use. 
And sue a friend came debtor for my sake." (9, 11.) 

* Merchant of Venice, Act III, Scene II. 
M Kent's Comm. 81, 82, 424. 



THE LAW IN SHAKESPEARE. 121 

And this, in such greedy and importunate manner as that 
delineated, so that none could drive him from "the en- 
vious plea of forfeiture," which he sought in the name 
of "justice and his bond." The injustice of such a plea 
could not well be presented in an abler manner than is 
done in this verse. 

A forfeiture of a bond is the failure to perform the 
condition upon which the obligee was to be excused from 
the penalty in the bond.^ The word forfeiture includes 
not merely the idea of losing the penalty, but also of 
having the property right transferred to the other party, 
without the consent of the party who has violated his 
obligation. Where the enforcement of a forfeiture was 
unjust, courts of equity always granted relief therefrom,- 
and courts of law finally came to assume a like jurisdic- 
tion.^ 

Sec. 85. "The course of law."— 

"Ant. The duke cannot deny the course of law. 
For the commodity that strangers have 
With us in Venice, if it be denied, 
Will much impeach the justice of the state."* 



^ Bouvier's Law Dictionary. 

-Coke, Litt. 209a; 2 Bl. Comm. 340. 

^ Ante idem. 

The relief furnished by Antonio, against the forfeitures sought 
by the Jew, against other debtors, is mentioned as the basis for 
his dislilte, by Antonio, in these words: 

*'Ant. . . . He seeks my life; his reason well I know; 
I oft delivered from his forfeitures. 
Many that have at times made moan to me; 
Therefore he hates me. 
Salan. I am sure, the duke will never grant this forfeiture 
to hold." (Merchant of Venice, Act III, Scene III.) 

Varro's Servant, on referring to the past due bonds of his 
master, he presented to Timon, in Timon of Athens, said: "Var. 
Serv. 'Twas due on forfeiture, my lord, six weeks." (Act II, 
Scene II.) 

■■ Merchant of Venice, Act III, Scene III. 



122 THE LAW IN SHAKESPEARE. 

This is a beautiful and touching tribute paid by the 
Poet to the majesty of the law, which was recognized as 
beyond and above the power of royalty. That the denial 
of the affirmative rights of any citizen would "much im- 
peach the justice of the state" by denying, from analogy, 
the property rights of the strangers in the city, by the like 
denial of "the course of law," is an observation in keep- 
ing with the whole philosophy of the law and the dan- 
ger of breaking down the precedents or the regular course 
of legal proceedings is plainly set forth in this verse. 

Macbeth exclaims: "This even-handed justice commends the 
ingredients of our poison'd chalice to our own lips." (Macbeth, 
Act I, Scene VII.) 

The lofty idea here expressed is that involved in the appeal to 
the ideal feeling, which defends the law, because it is the law and 
not on account of any personal interest. This is the ideal height 
of the struggle for law, when the motive of personal interest is 
subordinated for that of the moral preservation of the state, by 
co-operation for the realization of the idea of law. Von Ihering's 
Struggle for Law, p. 73. 

The Chief Justice explains to Henry V, why the laws must be 
impartially enforced, in 2' Henry IV, as follows: 
"CTi. Jus. . . Be you contented, wearing now the garland. 

To have a son set your decrees at nought; 

To pluck down justice from your awful bench; 

To trip the course of law, and blunt the sword. 

That guards the peace and safety of our person." 

(Act V, Scene IL) 
After the Justice's explanation of the necessity of enforcing 
the law against all alike, Henry V, said to him, in 2' Henry IV: 
"King. You did commit me; For which, I do commit into your 
hand, the unstained sword that you have used to bear; with this 
remembrance, — that you use the same with the like bold, just 
and impartial spirit, as you have done 'gainst me." (Act V, 
Scene II.) 

In referring to his previous contempt of court, the Chief Jus- 
tice tells the former Prince of Wales, in 2' Henry IV: "Cli. Jus. 
Your highness pleased to forget my place; The majesty and power 
of law and justice. The image of the king, whom I presented, 
And struck me in my very seat of judgment." (Act V, Scene II.) 



THE LAW IN SHAKESPEARE. 123 

Sec. 86. Bond.— 

"Shy. I'll have my bond; I will not hear thee speak: 
I'll have my bond; and therefore speak no more. 
I'll not be made a soft and dull-ey'd fool, 
To shake the head, relent, and sigh and yield 
To Christian intercessions. Follow not; 
I'll have no speaking; I will have my bond."^ 

This repeated declaration of intention, on Shylock's 
part, to have nothing but his "bond," heightens the inter- 
est in the final trial scene, since it is but natural anxiety, 
to wait and see if the judgment in the trial scene will 
enforce or reject this inhuman demand, guaranteed by 
the solemn written contract. The repetition also empha- 
sizes the nature of the right guaranteed him, by his writ- 
ten contract, in the shape of a solemn bond. 

A ''bond" is an obligation in writing and under seal.- 
Formerly, on the forfeiture of a bond, the whole penalty 
was recoverable at law, but in courts of equity — where 
forfeitures were relieved against — on breach of an obliga- 
tion for payment of money only, the court would compel 
an acceptance of the original sum, with interest and deny 
the penalty, and, finally, on this practice becoming gen- 
eral in courts of law, as well, a statute was enacted, in 
England,'' providing that a tender of principal and inter- 
est with accrued costs, would operate as a full satisfaction 
of a bond.* 

Buckingham tells Gloster, in 2' Henry VI: "Buck. Thy cruelty 
in execution upon offenders, hath exceeded law, and left thee 
to the mercy of the law." (Act I, Scene III.) 

Speaking of the death of the good Gloster, Cardinal Beaufort 
said, in 2' Henry VI: "Car. . . But we want a color for his 
death, 'Tis meet he be condemned by course of law." (Act III, 
Scene I.) 

* Merchant of Venice, Act III, Scene III. 
' Bouvier's Law Dictionary. 
»4 & 5 Anne, c. 16. 
*2 Bl. Comm. 340. 

Mr. Davis, in his commentaries on the "Law in Shakespeare" 



124 THE LAW IN SHAKESPEAEE. 

Sec. 87. Standing for law. 

''Shy. Repair thy wit, good youth, or it will fall 
To cureless ruin. — I stand here for law."^ 

In keeping with the whole course of Shylock's conduct, 
before and during the trial of the issue of the legality of 

observes that the Poet might very properly have invoked the 
chancery process of injunction to relieve against the enforce- 
ment of this penalty of the bond, as this procedure was then 
recognized by the English Court of Chancery, but of course if 
this were true — which the history of the Chancery Court estab- 
lishes — an English Court would have had no jurisdiction of an 
action in a Venetian State, so this obst^rvation would not have 
furnished the Poet with a much better remedy than the subter- 
fuge he adopted to let Antonio escape from the obligation of his bond. 

Shylock's plea for his bond, is further set out in this play, as 
follows: "Shy. If every ducat in six thousand ducats, were in 
six parts, and every part a ducat, I would not draw them; I 
would have my bond." (Merchant of Venice, Act IV, Scene I.) 

And again, he said: "Proceed to judgment: by my soul, I 
swear. There is no power in the tongue of man, to alter me: I 
stay here on my bond." (Act IV, Scene I.) 

Dromio said to his master, in Comedy of Errors: "Dro. Mas- 
ter, I am here entered in bond for you." (Act IV, Scene IV.) 

Angelo, tells the Merchant, in Comedy of Errors: "Ang. . . 
Pleaseth you walk with me down to his house, I will discharge 
my bond and thank you, too." (Act IV, Scene I.) 

In King Richard II, the following occurs between the Duke of 
York and the Duchess: 
"Duch. What should you fear? 

'Tis nothing but some bond that he has enter'd into 
For gay apparel, 'gainst the triumph day. 
York. Bound to himself? What doth he with a bond 
That he is bound to? Wife, thou art a fool. — 
Boy, let me see the writing." (Act V, Scene II.)- 

The Senator tells Caphis, in Timon of Athens: "Sen. Take 
the bonds along with you and have the dates in compt.'' (Act 
II, Scene I.) 

And on presentation of the bonds, Timon said: "Tim. How 
goes the world that I am thus encountered with clamorous de- 
mands of date broke bonds." (Act II, Scene II.) 

^ Merchant of Venice, Act IV, Scene I. 



THE LAW IN SHAKESPEARE. 125 

his bond, this declaration of his intention to ''stand for 
law," shows the basic faith in the majesty of law, which 
ought to have had a better reward, according to the stand- 
ard erected by the judge who first recognized his claim, 
then set at naught this recognized legal right. 

Placing his faith in the law alone, he withstood the 
taunts of those who scorned him, without swerving from 
his purpose to enforce his rights, through the medium of 
the law alone. While seeking an unrighteous purpose, 
he was willing to conform his actions and his will to the 
law, relying upon the constant and perpetual will, on the 
part of those administering the law, to render unto every 
man his due.^ In other words, he stood ''for law," and 
regardless of his illusion, as to the justness of his cause, 
his attitude can but commend his action, to those who 
appreciate the majesty of the law. 

Sec. 88. Seal.— 

"Shij. Till thou can'st rail the seal from off my bond, 
Thou but offend'st thy lungs to speak so loud."- 

In these lines Shylock expressed the preference that his 
debt held, under the English law, because of the seal at- 
tached, over debts not so evidenced. A bond or other 



1 This is really justice, nothing more nor less. Justinian, Inst, 
b. 1, tit. 1; Coke, 2' Inst. 56; Touillier, Droit, Civ. Fr. tit. prel. 
n. 5. 

Falstaff makes the following reference to the law, in a colloquy 
with Prince Henry: "Fa?. . . . pr'ythee, sweet wag, shall 
there be gallows standing in England when thou art king? and 
resolution, thus fobbed as it is, with the rusty curb of old father 
antic the law?" (1' Henry IV, Act I, Scene II.) 

In refusing the plea of Alcibiades for his client, in Timon of 
Athens, the Senator tells him: "1 Sen. We are for law, he dies; 
urge it no more, on height of our displeasure: Friend or brother, 
he forfeits his own blood, that spills another." (Act III, 
Scene V.) 

Timon of Athens, tell the thieves who come to him, in the 
forest: "Tim. The laws, your curb and whip, in their rough 
power. Have uncheck'd theft." (Act IV, Scene III.) 

=* Merchant of Venice, Act IV, Scene I. 



126 THE LAW IN SHAKESPEARE. 

writing, under seal, was called a specialty contract, to dis- 
tinguish it from other writings or contracts, not bearing 
a seal.^ A specialty debt, such as a bond under seal, in 
the event of the debtor's death, prior to 1870, when such 
preference was abolished, had the right of prior payment 
over simple contract debts.- The Anglo-Saxons affixed 
the cross, but the Normans introduced the custom of seal- 
ing all specialty contracts with seals of wax and the 
execution of written instruments after the conquest was 
accompanied with various circumstances of solemnity, 
such as sealing, dating, attesting and otherwise evidencing 
the execution of the instrument by the parties thereto.^ 
These seals of wax were of various colors and were gen- 
erally round or oval and were affixed to a label on the 
parchment or to a silk string fastened to a fold at the 
bottom of the writing or to a slip of the parchment, cut 
from the writing and made pendulous to impart greater 
character to the document.* The distinction, while ob- 
taining, in the Poet's time, in law, between sealed and 
unsealed instruments, has been largely, by statute, abol- 
ished in England at the present day,^ as well as in the 
United States.® 



^ Lawson, on Contracts (2nd Ed.). 

■Ante Idem. Bishop, Contracts; Beach, Mod. Law Contracts. 
^ I Reeve's History Eng. Law, p. 337. 

*Mad. Form. Diss. 26; I Reeve's History Eng. Law, 337. 
" Lawson, Contracts, supra. 
" Ante idem. 

In King John, the Arch Duke of Austria 3aid to Arthur: "Upon 
thy cheek I lay this zealous kiss, A seal to this indenture of my 
love." (Act II, Scene I.) 

King John is made to say, replying to Hubert: "Hub. Here 
is your hand and seal for what I did. 
K. John. 0, when the last account 'twixt heaven and earth 
Is to be made, then shall this hand and seal 
Witness against us to damnation." (Act IV, Scene III.) 

In King Richard IT, the Duke of York said to his son: 
"York. What seal is that, that hangs without thy bosom? 
Yea, look'st thou pale? let me see the writing." 

(Act V, Scene II.) 



THE LAW IN SHAKESPEARE. 127 

Sec. 89. Moiety.— 

"Duke. Make room, and let him stand before our face. — 
Shylock, the world thinks, and I think so too. 
That thou but lead'st 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: 
And where thou now exact'st the penalty 
(Which is a pound of this poor merchant's flesh,) 
Thou wilt not only lose the forfeiture, 
But touched with human gentleness and love. 
Forgive a moiety of the principal."^ 

This appeal for mercy, whereby the Duke appeals to 
Shylock to forego the penalty of his bond and accept 
the money, or forego a "moiety of the principal" is in 
keeping with the whole scope of the Poet's treatment of 
this trial. Instead of regarding the contract as void, be- 
cause of its illegality, to obtain the better effect and reach 
the climax of the judgment scene, the Poet treats the 
bond as legal and the penalty as collectible. This better 
shows the true character of the Jew, whose rights are 
trampled under foot for the dramatic effect of the trial 
scene, after being judicially recognized by the Court, by 
the subterfuge on Portia's part. 

And Cade says, in 2' Henry VI: "Cade. . . Is not this a 
lamentable thing, that of the skin of an innocent lamb, should 
be made parchment? that parchment, being scribbled o'er, should 
undo a man? Some say, the bee stings: but I say, 'tis the bees- 
wax, for I did but seal once to a thing and I was never my own 
man since." (Act IV, Scene VII.) 

The wicked Queen Margaret takes her farewell from Suffolk, 
in 2' Henry VI, as follows: 

'*Q. Mar. . . O, could this kiss be printed in thy hand. 
That thou might'st think upon these by the seal." 

(Act III, Scene II.) 

Coriolanus tells the Citizens, from whom he seeks support: 
"Cor. I will not seal your knowledge, with showing them. I 
will make much of your voices and so trouble you no further." 

(Act II, Scene III.) 

' Merchant of Venice, Act IV, Scene I. 



128 THE LAW IN SHAKESPEARE. 

"Moiety," in law, is the half of any thing, as where 
a testator bequeathes one "moiety" of his estate to one 
person and another to another, each will take a half 
thereof.^ The "principal" of this obligation, was, of 
course, the sum originally loaned, less the interest or dam- 
ages, due because of the breach.^ These terms are purely 
legal in their scope and illustrate the familiarity of the 
Poet with the lexicon of the law. 



^Littleton, 125. 

^ Bouvier's Law Dictionary. 

In All's Well That Ends Well (Act III, Scene III), the Countesi 
said to Helena: 

"Count. I pr'ythee, lady, have a better cheer; 
If thou engrossest, all the griefs are thine. 
Thou robb'st me of a moiety." 

Leontes, in Winter's Tale, said: "Given to the fire, a moietir 
of my rest, might come to me again." (Act II, Scene III.) 

And Hermione, the good queen, said: "A fellow of the royal 
bed, which owe, a moiety of the throne, a great king's daughter." 
(Winter's Tale, Act III, Scene II.) 

And, in the same play, Autolycus said to the Shepard: "Well, 
give me the moiety: — are you a party in this business." (Act 
IV, Scene III.) 

Speaking of the unequal division of his part of the country 
to be conquered. Hotspur is made to say, to Glendower and 
Mortimer, in 1' Henry IV: "Hot. Methinks, my moiety, north 
from Burton here, in quantity equals not one of yours." (Act 
IIL Scene I.) 

Henry V, in wooing Katharine of France, said: "E. Hen. . . 
do but now promise Kate, you will endeavor for your French 
part of such a boy; and, for my English moiety, take the word 
of a king and bachelor." (Act V, Scene II.) 

Richard soliloquizes, in King Richard III: "Olo. On me, 
whose all not equals Edward's moiety? On me, that halt, and am 
misshapen thus?" (Act I, Scene II.) 

The Duchess of York, on learning of Clarence's death, said to 
her daughter-in-law. Queen Elizabeth, in Richard III: "Duch. . . 
O, what cause have I (Thine being but a moiety of my grief). 
To over-go thy plaints, and drown thy cries." (Act II, Scene II.) 

Replying to the suit of Queen Katherine, in King Henry VIII, 



THE LAW IN SHAKESPEARE. 129 

Sec. 90. Charter.— 

''Shy. I have possess'd your grace of what I purpose; 
And by our holy Sabbath have I sworn, 
To have the due and forfeit of my bond. 
If you deny it, let the danger light 
Upon your charter and your city's freedom."^ 

Shylock here proclaims to the Duke that if his con- 
tract is not to be enforced, the provision of the organic 
law of Venice which guaranteed the inviolability of con- 
tract obligations, would be violated. The challenge is to 
the effect that the very Charter of the city would be 
threatened by such holding. A charter is a grant made 
by the sovereign, either to the whole people, or to a por- 
tion of them, securing to them the enjoyment of certain 
rights.- A notable illustration of such an instrument, in 
English history, was Magna Charta, the great repository 
of English liberties.^ A charter differs from a constitu- 
tion, in that the former is granted by the sovereign, while 
the latter is established by the people themselves, but both 
are regarded as the fundamental or organic law of the 
section where they apply.* 



before the king became enamored with Anne Boleyn, he said 
to her: "E. Hen. . . you have half our power; the other 
moiety, ere you ask, is given." (Act I, Scene II.) 

Caesar thus refers to Antony's death, in Antony and Cleopatra: 
"Caes. The death of Antony is not a single doom; in the name 
lay a moiety of the world." (Act V, Scene II.) 

In Cymbeline, lachimo said to Posthumus, in making the 
wager: "lach. . . I dare, thereon, pawn the moiety of my 
estate to your ring." (Act I, Scene V.) 

In King Lear, Gloster, is made to say: ". . For equalities 
are so weighed, that curiosity in neither, can make choice of 
either's moiety." (Act I, Scene I.) 

* Merchant of Venice, Act IV, Scene I. 
==1 Bl. Comm. 108; 1 Story, Con. Sec. 161. 
*Two of the original drafts of Magna Charta are preserved in 
the British Museum. 
■* Coke, Litt. 6 ; Dane, Abr. Charter. 



130 THE LAW IN SHAKESPEARE. 

Sec. 91. The issue before the court. — 

"Duke. Are you acquainted with the difference 
That holds this present question in the court? 
Pot. I am informed thoroughly of the cause. "^ 

The Duke here enquired as to the Court's familiarity 
with the issue to be decided and Portia's reply shows that 
the Poet had in mind the necessity of a familiarity with 
the facts in issue, concerning which the judgment of the 
law, upon those facts, was sought. It is a rare thing that 
even an extra judicial opinion as to the construction of a 
written instrument can be offered, without having the 
contract to be construed before the interpreter thereof,- 
but in the whole scope of this trial, it does not appear that 
the Court really scanned the original of this bond, which 



Jaques, in As You Like It, declares to the Duke: "I must 
have liberty, withal, as large a charter as the wind, to blow on 
whom I please." (Act II, Scene I.) 

King Richard II is made to say, in speaking of his willing- 
ness to grant blank charters for money to carry on his wars. 
(Act I, Scene III): 

"£■. Rich We are forc'd to farm our royal realm; 

The revenue whereof shall furnish us 
For our affairs in hand: If that come short, 
Our substitutes at home shall have blank charters."* 
Stirring the citizens against Coriolanus, Brutus said: "JBr«. 
He was your enemy; ever spake against your liberties, and the 
charters that you bear, i'the body of the weal." (Act II, Scene 

m.) 

In the 58' Sonnet, to Southampton, the Poet said: 
"Be where you list, your charter is so strong 
That you yourself may privilege your time 
To what you will." (9, 11.) 
Charter is referred to in the LXXXVII' Sonnet in these lines: 
"The charter of thy worth gives thee releasing; 
My bonds in thee are all determinate." (3, 4.) 

* Merchant of Venice, Act IV, Scene I. 

^ For the rules respecting the interpretation and construction 
of written instruments, see, 1 Bl. Comm. 59; 2 Kent's Comm. 
522; Parsons, Cont. 3. 



THE LAW IN SHAKESPEARE. 131 

Antonio confessed. This is mentioned only to show that 
the conduct of the cause was more according to a special 
code of practice invented by the Poet, than by way of 
strict adherence to the practice in a court of justice. 

Sec. 92. Nature of Shylock's suit. — 

"Por. Of a strange nature is the suit you follow; 
Yet in such rule, that the Venetian law 
Cannot impugn you, as you do proceed."^ 

The observation of the Court that the suit was of a 
"strange nature" is clearly indisputable, but the other con- 
clusion that "the Venetian law cannot impugn you, as you 
do proceed," is at variance with the later conclusion of the 
Court itself, who adjudges that the very object of the suit 
was counter to the law of Venice and of such a criminal 
nature as to make forfeit the life of Shylock and his estate 
confiscate unto the Crown. In view of this later conclu- 
sion, the statement here made that the law cannot im- 
pugn him, in the progress of such an unrighteous cause, 
is at variance with all rules of jurisprudence. All con- 
tracts having for their object the taking of human life 
have always been regarded as void, because contrary to 
good morals.- Nor could it be insisted that this proceed- 
ing would have been legal, according to the Twelve Tables 
of the Romans, for the procedure is at variance with the 
authorized process for the punishment of the debtor, ac- 
cording to the Twelve Tables, as history reproduces them.* 

' Merchant of Venice, Act IV, Scene I. 

^Lawson, Contracts (2nd Ed.) 343, and citations. 

^ By the 3' Table, the debtor had until thirty days after judg- 
ment to pay his debt and if he did not then pay or give security, 
or sell himself, by entering into the nexum, his creditor could 
seize him, load him with chains and treat him as a slave. Then 
after sixty days more, if he failed to pay, he was brought into 
the market place and either put to death or sold as a slave into 
Etruria. It was only where there were several creditors that he 
might, at their election, be divided and his body partitioned be- 
tween them. Gibbon, vol. VII, p. 92; Gravina, De Jura Nat. 



132 THE LAW IN SHAKESPEARE. 

Portia claims to be able to show a special statute or 
decree holding the object of this bond to be a crime and 
if this were true the same statute would, by necessary 
implication, make void the bond, given to evidence such 
criminal act as the contract contemplated.^ 

Sec. 93. Portia's plea for mercy. — 

"For. The quality of mercy is not strain'd; 
It droppeth, as the gentle rain from heaven 
Upon the place beneath: it is twice blessed; 
It blesseth him that gives and him that takes : 
'Tis mightiest in the mightiest; it becomes 
The throned 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 scepter'd sway; 
It is enthroned in the hearts of kings ; 
It is an attribute to God himself; 
And earthly power doth then show likest God's, 
When mercy seasons justice. 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: 
And that same prayer doth teach us all to render 
The deeds of mercy."- 

This plea for mercy is so beautiful that any comment 
thereon seems almost sacrilege. That "earthly power'' 
shows "likest God's, when mercy seasons justice," is an 
apt comparison of the institutions of man with the Chris- 
tian idea for the remission of the sins of the guilty, who 
confess and seek forgiveness. Mercy, in the legal accep- 
tation of the term, is the total or partial remission of the 

Gent, etc., Sec. 72; Niebuhr, Hist. Rome, vol. 2, p. 597. And 
eminent historians contend that this law only related to the 
division of the debtor's property, not his person, at all. Mon- 
tesquieu, Esprit des Lois, b. 29, c. 2; Bynkershoek, Observ. .Jur. 
Rom. lib. 1, c. 1; Heinneccius, Antiq. Rom. lib. Ill, tit. 30, sec. 4. 

* Lawson, Contracts, swpra. 

2 Merchant of Venice, Act IV, Scene I. 



THE LAW IN SHAKESPEARE. 133 

punishment to which a person guilty of some offense is 
subject under the law.^ In seeking mercy, before the 
adjudication of the punishment against Antonio, or before 
the mandate or judgment of the court^ the Poet recognized 
the distinction in law, between mercy or clemency and 
pardon, for a pardon is the remission of punishment, after 
the judgment of the court, while clemency or mercy is 
extended before sentence.^ 

Sec. 94. Antonio's confession of the bond« — 

"Por. Do you confess the bond? 
Ant I do."^ 

This course, on Portia's part, was consistent with the 
practice frequently resorted to, in order to save the time 
and formality of resorting to proof, of admitting certain 
facts, which are not disputed, without calling for the proof 
thereof. The admission was drawn forth, in the orderly 
manner, in the progress of the cause^ for until the inter- 
est of the parties appeared, an admission would not have 
been availing, as the interest must appear in all cases 
at the time of making an admission/ After the interest 
of the parties appeared, however, then the admission here 
elicited had the force and effect of a regular judicial 
admission, which would be conclusive evidence against 
the party making it.^ 

^ Jacob, Law Dictionary. 

= Bouvier's Law Dictionary; Rutherforth, Inst. 224; 3 Story, 
Con., Sec. 148R. 

In passing upon Alcibiades' defense of the felon, in Timon of 
Athens, the Senators hold this conference: "1 8en. Nothing em- 
boldens sin so much as mercy. 

2 Sen. Most true; the law shall bruise him," (Act III, 
Scene V.) 

'Merchant of Venice, Act IV, Scene I. 

*2 Stark. 41. 

= 1 Greenl. Evid. Sec. 205; 2 Campb. 341. 



134 THE LAW IN SHAKESPEARE. 

Sec. 95. Plea for judgment.— 

"Shy. . . . The pound of flesh, which I demand 
him, 
Is dearly bought, is mine, and I M'ill have it : 
If you deny me, fie upon your law. 
There is no force in the decrees of Venice : 
T stand for judgment: answer; shall I have it?"^ 

Shylock's plea for judgment, based upon the admission 
or confession of the execution of his bond, was properly 
urged, from a legal standpoint — if the legality of his bond 
were admitted — since the judgment or conclusion of the 
law, upon the facts found, or admitted, follows naturally, 
in the orderly course of legal proceedings, upon the fact 
of such admission.^ The form of judgment to which a 
legal bond, or other written obligation for the payment of 
money would entitle one to recover, would be what is 
known as a judgment quod recuperet, that is, a judgment 
in*"favor of the plaintiff that he do recover, rendered when- 
ever he has prevailed upon an issue of fact, duly estab- 
lished, or admitted by the opposing party to the cause. ^ 
A judgment on confession is called a judgment cognovit 
actionem, and such judgment is properly rendered when- 
ever 'the defendant, instead of contesting the right of re- 
covery, confesses the plaintiff's action.* But, of course, 
on grounds of public policy, a judgment would not be ren- 
dered in a court of justice, which has for its object, the 
taking of a human life, according to civil contract, for 
the concern of the state for the lives of its citizens would 
prevent the enforcement of such a judgment and the con- 
tract would be held to be illegal because of its being in 
contravention of good morals.^ 

* Merchant of Venice, Act IV, Scene I. 
= Tidd Prac. 930. 

'Stephen, PI. 126. 

* Freeman on Judgments. 

»Chitty, Com. Law. 215, 217, 228, 250. 

Commenting upon Shyloclc's attitude, as piesented in this verse, 
as that of the seeker after justice in all climes and under all 



THE LAW IN SHAKESPEARE. 135 

Sec. 96. Justice of Shylock's plea. — 

"Por. ... I have spoken thus much, 
To mitigate the justice of thy plea; 
Which, if thou follow, this strict court of Venice, 
Must needs give sentence 'gainst the merchant there."^ 

This recognition of the legality of the bond, as the only 
alternative of the court, if the condition of the bond was 
insisted upon, is no doubt followed, because of the dra- 
matic effect produced and the anxiety created as to the 
ultimate issue of the cause, after due recognition of the 
rights of the Jew, by the Court. Of course, as shown by 
Von Ihering," the recognition of the legality of the bond, 
in the first instance, by the Court, was, from a strictly 
legal standpoint, all wrong, as the fact that it had for its 
object the taking of human life, or the serious maiming 
of a human being, made its object so far counter to good 
morals and against public policy, as to have justified the 
Court in holding that it was absolutely void; but as this 
would not have had the dramatic effect of holding the 
interest and creating the same anxiety in the final out- 
come of the trial, as the course pursued by the Poet, it is 
doubtless true that from a poetic standpoint the sacrifice 
of real justice and strictly legal rules, for the more strik- 
ing system of jurisprudence adopted, was justified, in order 
to subserve the object had in view. 



conditions, Dr. Von Ihering, observed: "It is hatred and revenge 
that take Shylock before the court to cut his pound of flesh out 
of Antonio's body; but the words which the Poet puts into his 
mouth are as true in it as in any other. It is the language which 
the wounded feeling of legal right will speak at all times and in 
all places; the power, the firmness of the conviction that law 
must remain law, the lofty feeling and pathos of the man who 
is conscious that, in what he claims, there is question, not 
only of his person, but of the law." Von Ihering's Struggle for 
Law, p. 80. 

* Merchant of Venice, Act IV, Scene I. 
- Von Ihering's Struggle for Law, p. 81. 



136 THE LAW IN SHAKESPEARE. 

Sec. 97. "I crave the law."— 

"Shy. My deed's upon my head; I crave the law, 
The penalty and forfeit of my bond."^ 

Commenting on the tragic expression, as one who deeply 
felt his wounded legal right, Von Ihering remarks of this 
phrase: ''In these four words the Poet has described the 
relation of law, in the subjective, to law in the objective 
sense of the term and the meaning of the struggle for 
law in a manner better than any philosopher of the law 
could have done it. These four words change Shylock's 
claim into a question of the law of Venice. To what 
mighty, giant dimensions, does not the weak man grow, 
when he speaks these words: It is no longer the Jew de- 
manding his pound of flesh : it is the law of Venice itself 
knocking at the door of Justice; for his rights and the 
law of Venice are one and the same; they both stand or 
fall together."^ 



^&^ 



Sees. 98. Tender in open court. — 

"For. Is he not able to discharge the money? 

Bass. Yes, here I tender it for him, in the court; 
Yea, twice the sum: if that will not suffice, 
I will be bound to .pay it ten times o'er, 
On forfeit of my hands, my head, my heart: 
If this will not suffice, it must appear 
That malice bears down truth. "-"^ 

Bassanio's act, accompanied with the money and these 
words: "Here I tender it for him in the court," would 
have the force and effect of a legal judicial tender of the 
money due to Shylock, for since the debt incurred by 
Antonio was really on account of Bassanio, he would have 
sufficient authority from the debtor to appear for him 
and make the tender.* The money is generally required 

»Mer(!hant of Venice, Act IV, Scene I. 
'Von Ihering's Struggle for Law (5th Ed.), 81. 
^ Merchant of Venice, Act IV, Scene I. 
*Coke, Litt. 206; 2 Maule & S. 86. 



THE LAW IN SHAKESPEARE. 137 

to be present and actually offered, but of course the refusal 
of Shylock to receive the money amounted in law to a 
legal waiver of the actual production of the money. ^ 

The Court's decision as to the effect of this tender, how- 
ever, in the course of the decision, as d'^priving Shylock 
of his principal, was not according to the law of England, 
as the only result attached to a rejected tender was to put 
a stop to accruing damages and interest on the debt ten- 
dered and refused. - 

Sec. 99. Effect of legal precedent. — 

"Bass Wrest once the law to your authority: 

To do a great right, do a little wrong; 
And curb this cruel devil of his will. 

Por. It must not be; there is no power in Venice 
Can alter a decree established: 
'Twill be recorded for a precedent; 
And many an error, by the same example, 
Will rush into the state: it cannot be."^ 



^2 Maule & S. 86; 2 Parsons, Contr. 154. 
=»3 Q. B. 915; 11 M. & W. Exch. 356. 

Ophelia and her Father, Polonius, are made to discuss the legal 
subject of a tender, in Hamlet, as follows: 
"Oph. He hath, my lord, of late, made many tenders 

Of his affection to me. 
Pol. Affection? puh: you speak like a green girl, 
Unsifted in such perilous circumstance. 
Do you believe his tenders, as you call them? 
Oph. I do not know, my lord, what I should think. 
Pol. Marry, I'll teach you: think yourself a baby; 
That you have ta'en these tenders for true pay 
Which are not sterling. Tender yourself more dearly; 
Or (not to crack the wind of the poor phrase. 
Wronging it thus,) you'll tender me a fool." 

(Act I, Scene III.) 
Tender is referred to in the LXXXIII' Sonnet, as follows: 
"I found, or thought I found, you did exceed 
The barren tender of a poet's debt." (3, 4.) 

Merchant of Venice, Act IV, Scene I. 



138 THE LAW IN SHAKESPEARE. 

The Poet here refers to the doctrine of stare decisis, and 
the sacredness of established precedents in the law, which 
have been truly said to be the real "bulwarks" of the law. 
From the time of Edward III to that of Elizabeth, the 
inviolability of established precedents was inculcated by 
the courts and lawyers with more zeal, perhaps, than at 
any other period in English history.^ Speaking of the 
necessity of adherence to precedents, in the administra- 
tion of the law, Chancellor Kent said : "A solemn decision 
upon a point of law, arising in any given case, becomes an 
authority in a like ease, because it is the highest evidence 
which we can have of the law applicable to the subject, 
and the judges are bound to follow that decision so long 
as it stands unreversed, unless it can be shown that the 
law was misunderstood or misapplied in that particular 
case. If a decision has been made, upon solemn argument 
and mature deliberation, the presumption is in favor of 
its correctness ; and the community have a right to regard 
it as a just declaration or exposition of the law, and to 
regulate their actions and conduct by it. . . . If judi- 
cial decisions were to be lightly disregarded we should dis- 
turb and unsettle the great landmarks of property. "- 
Hence, the legal conclusion of the court, on the sugges- 
tion that the settled rules of law be set aside for this par- 
ticular case, that it could not be ; " 'Twill be recorded for 
a precedent; and many an error by the same example will 
rush into the state," since "there is no power in Venice 
can alter a decree established," evidences the fact that the 
Poet made the same adherence to precedent, which had 
always obtained in England, prevalent in Venice, too. 

'Kent said: "Throughout the whole period of the Year Books, 
from the time of Edward III, to that of Henry VII, the judges 
were incessantly urging the sacredness of precedents and that 
a Counsellor was not to be heard who spoke against them, and 
that they ought to judge as the ancient sages taught." 1 Kent's 
Comm. (12th Ed.) 476; 33 Hen. VI, 41. 

■'1 Kent's Com. (12 Ed.), 476. 



THE LAW IN SHAKESPEARE. 



139 



Sec. 100. Portia's judgment on the bond. — 

"Por. Why, this bond is forfeit; 

And lawfully by this the Jew may claim 

A pound of flesh, to be by him cut off 

Nearest the merchant's heart : . . . . 

For the intent and purpose of the law 

Hath full relation to the penalty. 

Which here appeareth due upon the bond. . . . 

Therefore, lay bare your bosom 

Are there balance here, to weight the flesh? . . . 

Have by some surgeon, Shylock, on your charge, 

To stop his wounds, lest he do bleed to death. . . . 

It is not so expres'd; but what of that? 

'Twere good you do so much for charity. 

A pound of that same merchant's flesh is thine ; 

The court awards it and the law doth give it. . . . 

And you must cut this flesh from off his breast; 

The law allows it and the court awards it 

Tarry a little; there is something else. — 

This bond doth give thee here no jot of blood; 

The words expressly are, a pound of flesh : 

Take then thy bond ; take thou thy pound of flesh ; 

But, in the cutting it, if thou dost shed 

One drop of Christian blood, thy lands and goods 

Are, by the laws of Venice, confiscate 

Unto the state of Venice. 
Shy. Is that the law? 
Por. Thyself shalt see the act: 

For, as thou urgest justice, be assur'd. 

Thou shalt have justice, more than thou desir'st. . . . 
Shy. I take this offer then; — pay the bond thrice and 

let the Christian go. 
Bass. Here is the money. 
Por. Soft; 

The Jew shall have all justice; — soft: no haste; — 

He shall have nothing but the penalty 

Therefore, prepare thee to cut off the flesh. 

Shed thou no blood ; nor cut thou less, nor more, 

But just a pound of flesh: if thou tak'st more, 

Or less, than a just pound — be it but so much 

As makes it light or heavy, in the substance. 

Or the division of the twentieth part 

Of one poor scruple ; nay, if the scale do turn 

But in the estimation of a hair, — 



140 THE LAW IN SHAKESPEAKE. 

Thou diest and all thy goods are confiscate 

Why doth the Jew pause? Take thy forfeiture. 
Shy. Give me my principal and let me go. 
Bass. I have it ready for thee; here it is. 
Por. He hath refused it in the open court; 

He shall have merely justice and his bond 

Shy. Shall I not have barely my principal? 
Por. Thou shalt have nothing but the forfeiture, 

To be so taken at thy peril, Jew. 
Shy. Why then, the devil give him good of it, 

I'll stay no longer question. 
Por. Tarry, Jew, 

The law hath yet another hold on you. 

It is enacted in the laws of Venice, 

If it be proved against an alien. 

That by direct or indirect attempts, 

He seek the life of any citizen. 

The party, 'gainst the which iie doth contrive, 

Shall seize one-half his goods ; the other half 

Comes to the privy coffer of the state; 

And the offender's life lies in the mercy 

Of the duke only, 'gainst all other voice. 

In which predicament, I say thou stand'st: 

For it appears, by manifest proceeding. 

That indirectly and directly too, 

Thou has contrived against the very life 

Of the defendant ; and thou ha'st incurred 

The danger formerly by me rehearsed. 

Down, therefore, and beg mercy of the duke."^ 

Subjected to critical legal analysis, it would seem that 
injustice was done to Shylock, by this judgment. The 
validity of the bond, in the first instance, ought not to 
have been recognized, but after its recognition, by the 
Court, it ought not, subsequently to have been invalidated 
by such cunning as was indulged in by Portia. The de- 
cision is presented as the only possible one, before the 
law, as no one in Venice doubted the validity of the bond. 
Antonio, his friends, the court and all were agreed that the 
bond gave him a legal right and after the decision of the 
Court to this effect, and the entire assembly regarded his 

* Merchant of Venice, Act IV, Scene I. 



THE LAW IN SHAKESPEARE. 141 

case as won, then the Court struck down the previously 
recognized right, by the strategem that the bond gave 
him no blood, but only the pound of flesh. Of course, 
since there could be no flesh without blood, in recogniz- 
ing the right to take the flesh, the Jew legally would have 
had all incidental powers necessary to the full enjoyment 
of the affirmative legal right and could draw the blood, 
as a necessary incident of his right to take the flesh, for 
without it, his right could not be exercised. It was axiom- 
atic, at common law, that where one had a legal right, 
he had all the remedies necessary to a full enjoyment of 
that right, for otherwise the right itself would be without 
avail. 

Viewing the humbled Jew, after the rendition of this 
decision, with all the pathos that the picture of the Poet 
presents, as the disappointed seeker after justice, who had 
such entire faith in law and the justice of his cause, would 
naturally suggest to the scientific jurist. Dr. Von Ihering, 
in his Struggle for Law, observed of this trial scene: 
''When he finally succumbs under the weight of the 
judge's decision, who wipes out his rights by a shocking 
piece of pleasantry; when we see him pursued by bitter 
scorn, bowed, broken, tottering on his way, who can help 
feeling that in him the law of Venice is humbled ; that it 
is not the Jew, Shylock, who moves painfully away, but 
the typical figure of the Jew in the middle ages, that 
pariah of society, who cried in vain for justice? His fate 
is eminently tragic, not because his rights are denied him, 
but because he, a Jew, of the middle ages has faith in the 
law — we might say just as if he were a Christian — a faith 
in the law firm as a rock, which nothing can shake and 
which the judge himself feeds, until the catastrophe breaks 
upon him like a thunder clap ; dispels the illusion and 
teaches him that he is only the despised medieval Jew to 
whom justice is done by defrauding him."' 



^Von Ihering's Struggle for Law, pp. 81, S2 (5th Ed.). Speak- 
ing further of this decision, in a footnote, the learned Von Ihering 



142 THE LAW IN SHAKESPEARE. 

also observed: "The eminently tragic interest which we feel in 
Shylock I find to have its basis precisely in the fact that justice 
is not done him; for this is the conclusion to which the lawyer 
must come. The Poet is, of course free to build up his own sys- 
tem of jurisprudence, and we feel no reason to regret that Shake- 
speare has done so here; or rather that he has changed the old 
fable in nothing. But when the jurist submits the question to 
a critical examination, he can only say that the 'bond was, in 
itself, null and void because its provisions were contrary to good 
morals. The Judge should, therefore have refused to enforce its 
terms on this ground from the first. But as he did not do 
so, . . . but admitted its validity, it was a wretched subter^ 
fuge, a miserable piece of pettifoggery, to deny the man whose 
right he had already admitted, to cut a pound of flesh from the 
living body, the right to the shedding of the blood, which neces- 
sarily accompanied it. Just as well might the judge deny to the 
person whose right to an easement he acknowledged, the right to 
leave footmarks on the land, because this was not expressly 
stipulated for in the grant." Von Ihering's Struggle for Law, 
(5th Ed.) pp. 82, 83. 

Notwithstanding the total absence of justice, when judged by 
strict legal rules and formulas, in this judgment, such writers as 
Doctor Hudson, in commenting on this trial scene, speaking of 
the judgment, said: "In her judge-like gravity and dignity of 
deportment; in the extent and accuracy of her legal knowledge; 
in the depth and appropriateness of her moral reflections; in the 
luminous order, the logical coherence, and the beautiful trans- 
parency of her thoughts, she almost rivals our Chief Justice 
Marshall." 

In the gravity and deportment and the beautiful and dramatic 
presentation of the climax, this may be true, but surely not in 
the "extent and accuracy of her legal knowledge." Chief Jus- 
tice Marshall's judgments were according to established legal 
precedents and rules of law; by his opinions property rights were 
sustained and not stricken down by pleasantries or subterfuges. 
Of what avail is it, to a litigant, whose rights have been denied 
him, by improper legal standards, that the jurist who pronounced 
the judgment was becomingly garbed, or pronounced the opinion, 
striking down his rights, with eloquence and sophistry? The 
only thing a litigant cares about is securing a righteous judgment 
in his cause. If he loses his cause, it is immaterial that the 
executioner of his rights was of noble mien, in the denial of the 
law, as applied to his cause. The becoming picture of Portia, 
presented by the Poet, viewed by the lawyer, fails to attract, as 



THE LAW IN SHAKESPEARE. 143 

Sec. 101. Comnnitation 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 into a fine."^ 

A pardon is an act of grace, from the power intrusted 
with the execution of the laws, which exempts the one 
upon w^hom 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 recog- 
nizes 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 punish- 
ment 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 sup- 
posed legal rights for improper reasons. Such a judgment is not 
regarded with rapt admiration by those who appreciate the ma- 
jesty of the law, nor is the jurist pronouncing such an opinion 
surrounded by a legal halo, but as the recipient of an erroneouf 
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. 

* Merchant of Venice. Act IV, Scene I. 
M Bl. Com. 400; 1 Park, Cr. Gas. 47. 
•10 Johns. (N. Y.) 232. 

* Bouvier's Law Dictionary. 



144 THE LAW IN SHAKESPEARE. 

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 accord- 
ing 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 mak- 
ing devises of land.^ By this statute the use was trans- 
ferred 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 vest- 
ing the legal estate and giving full effect to the transfer 
or disposition.^ 

This means of conveying the half of his estate, there- 
fore, 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- 

^ 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. 



THE LAW IN SHAKESPEARE. 145 

tion, by means of the gift of land liberum maritagium,^ 
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. 

For. Art thou contented, Jew; what dos't thou say? 

Shy. I am content. 

For. 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."- 

The exaction of the deed of gift, as the price of Shy- 
lock'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, contain- 
ing a contract, sealed and delivered by the parties thereto.^ 
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 Eng- 
lish 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 hj 
the grantor. 

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

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

- Merchant of "Venice, Act IV, Scene I. 

=" Tiedeman, R. P. (3d Ed.) Sec. 854; 2 Washburn, R. P. 553. 

* Ante idem. 

^29 Chas. IL Ch. 3. 

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



146 THE LAW IN SHAKESPEARE. 

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.^ 

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





CHAPTER X. 




"AS YOU LIKE IT." 


Sec. 104. 


Primogeniture. 


105. 


Bequest. 


106. 


Heir. 


107. 


Testament. 


108 


"Be It Known By These Presents." 


109. 


Bankrupt. 


110. 


Forfeiture of land. 


111. 


Writ Extendi facias. 


112. 


Vacations of Court. 


113. 


Jointure. 


114 


Acts by Attorneys. 


115. 


Examining Justice. 



Sec. 104. Primogeniture. — 

"Orl. The courtesy of nations allows you my better, in 
that you are the first-born; but the same tradifion 
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."^ 

The law cf 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 chil- 
dren. ^ 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. 

*As You Like It, Act I, Scene I. 

'This unjust distinction has been very generally abolished in 
the United States. Bouvier's Law Dictiona,ry. 

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

(147) 



148 THE LAW IN SHAKESPEARE. 

Sec. 105. Bequest. 

''Orl. As I remember, Adam, it was upon this fashion 
bequeathed me ; By will, but a poor thousand crowns, 
and, as thou say'st, charged my brother, on his bless- 
ing, to breed me well; and there begins my sadness."^ 

A bequest, is a gift of personal property, by will, in con- 
tradistinction to a devise of real estate.^ A sum of money 
could not be devised, but such sum would be "bequeathed" 
instead. 



*As You Like It, Act I, Scene I, 
= Wigram, Wills, 11. 

In King John, the Mother of the King, said to Phillip: 
"Eli. I like thee well; Wilt thou forsake thy fortune. 
Bequeath thy land to him, and follow me? 
I am a soldier and now bound to France." (Act I, Scene I.) 
On regaining his armour, Pericles, Prince of Tyre, identifies it 
in the hands of the fishermen as the armour that "my dead 
father did bequeath to me," as a "part of mine heritage." 
fAct II, Scene I.) 

After determining to die, when Collatine shall know the cause 
of her untimely death, Lucrece concludes: 

"My stained blood to Tarquin I'll bequeath. 
Which for him tainted shall for him be spent, 
As is his due, writ in my testament." (1181, 1183.) 

In language entirely legal, in form, Lucrece asks of her hus- 
band, in her complaint: 

"Dear Lord of that dear jewel I have lost. 
What legacy shall I bequeath to thee?" (1191, 1192.) 
Further on she is made to say — 
"This brief abridgment of my will I make; 
My soul and body to the skies and ground." 
And she appoints her husband executor of her will, in this 
language : 

"Thou, Collatine, shalt oversee this will." (1198, 1199, 1205.) 
In the fourth Sonnet, the Poet asks of Loveliness, which is 
personified: 

"Unthrifty loveliness, why dost thou spend 
Upon thyself thy beauty's legacy? 
Nature's bequest gives nothing, but doth lend. 
And being frank, she lends to those are free." 



THE LAW IN SHAKESPEARE. 149 

Sec. 106. Heir. 

"Cel. You know, my father has no child but I, nor none 
is like to have; and, truly, when he dies, thou shalt 
be his heir: for what he hath taken away from thy 
father, perforce, I will render thee again, in affection ; 
by mine honor, I will."^ 

The use of the word ''heir" here is in the sense of an 
"heir apparent," or as one who had the indefeasible right 
to the inheritance, provided she outlive the ancestor, her 
father. In postponing the realization of her promise to 
convey the property realized from her own father^ to 
Rosalind, the Poet did not overlook the contingency upon 
which the heirship depended, in law, i. e.j the death of the 
speaker's father, for it is a legal axiom that no one can 
be the heir of a living person,^ hence the promise to make 
Rosalind the "heir" of her own father to the extent of 
the property taken from her parent, "when he dies." 

"Then how, when nature calls thee to he gone. 
What acceptable audit can'st thou leave? 
Thy unused beauty must be tomb'd with thee. 
Which, used, lives th' executor to be." 

*As You Like It, Act I, Scene I. 
=^2 Bl. Comm. 208. 

Antigonus, in Winter's Tale, referring to his three daughters, 
said: "They are co-heirs; and I had rather glib myself, than they 
should not produce fair issue." (Act 11, Scene IT.) 

And, in the same play, Florizel, son of Polixenes, said to his 
father: "Flo. . . . From my succession, wipe me, father, I 
am heir to my affection." (Act IV, Scene III,) 

In King Richard II, the Queen said of Bolingbroke: 
"Queen. So, Green, thou art the midwife to my wo. 
And Bolingbroke my sorrow's dismal heir." 

(Act II, Scene II,) 
In King Richard II, the Duke of York thus addressed BoUingbroke: 
"York. Great duke of Lancaster, I come to thee. 

From plume pluck'd Richard; who, with willing soul. 

Adopts thee heir and his high scepter yields 

To the possession of thy royal hand." (Act IV, Scene L) 



150 THE LAW IN SHAKESPEARE. 



Sec. 107. Testament. — 



Orl. My father charged you in his will to give me good 
education: you have trained me like a peasant, ob- 
scuring and hiding from me all gentleman-like qual- 
ities : the spirit of my father grows strong in me, and 
I will no longer endure it: therefore allow me such 
exercises as may become a gentleman, or give me 
the poor allottery my father left me by testament."^ 



The Bishop of Ely, urged the King to make war upon France, 
as follows, in Henry V: "Ely. Awake remembrance of these 
valiant dead, and with your puissant arm, renew their feats; you 
are their heir, you sit upon their throne." (Act I, Scene II.) 

Describing the attempt to overthrow Henry V, Mortimer tells 
Richard Plantagenet, in 1' Henry VI: "Mor. . . But mark; 
as, in this haughty great attempt, They laboured to plant the 
rightful heir, I lost my liberty and they their lives." (Act II, 
Scene V.) 

Mortimer tells Richard Plantagenet of his heirship, in 1' Henry 
VI, as follows: "The first begotten, and the lawful heir of 
Edward king, the third of that descent." (Act II, Scene V.) 

Speaking of the treason of Horner, Suffolk said, in 2' Henry 
VI: "Suff. His words were these;— that Richard, duke of York, 
■was rightful heir unto the English crown; and that your majesty 
was an usurper." (Act I, Scene III.) 

Henry VI, in 3' Henry VI, thus deplores his condition: "E. Hen. 
I know not what to say; my title's weak. Tell me, may not a 
king adopt an heir? 
York. What then? 

K. Hen. An if he may, then am I lawful king: 
For Richard, in the view of many lords, 
Resign'd the crown to Henry the Fourth; 
Whose heir my father was, and I am his." (Act I, Scene I.) 
Edward tells Queen Margaret, in 3' Henry VI: "Edw. I am 
his king and he should bow his knee; I was adopted heir by his 
consent." (Act II, Scene II.) 

On learning that Richmond was on the seas, bent on landing 
an army in England, King Richard III, said: "K. Rich. What 
heir of York is there alive, but we? And who is England's king, 
but great York's heir? Then, tell me, what makes he upon the 
seas?" (Act IV, Scene IV.) 

' As You Like It, Act I, Scene L 



THE LAW IN SHAKESPEARE. 151 

The Roman word testament, is here used, in preference 
to the English word "will," a synonym for the instrument 
whereby a jDerson aUenated his estate after his death. A 
testament is the final declaration of a person, with refer- 
ence to the disposition of his property.^ The older son, 
having been selected as the testamentary guardian, of the 
speaker, would naturally be charged with his education 
by the will and the charge of failure to discharge this 
trust of the testator, was a reason why the personal estate 
of the ward should be delivered over, even before the 
ward arrived at his maturity, as he could then demand his 
legal rights, under the father's will. 

^ Swinburne, Wills, Sec. 2. 

In King John, in the quarrel between Elinor and Constance, 
the following occurs: "Eli. Thou unadvised scold, I can pro- 
duce a will that bars the title of thy son. 
Const. Ay, who doubts that? a will: a wicked will; 
A woman's will; a canker'd grandam's will." 

(Act II, Scene I.) 
Reference to a testament is also made, in As You Like It 
(Act II, Scene I), as follows: 
"1 Lord. O, yes, into a thousand similies. 

First, for his weeping in the needless stream; 
Poor deer, quoth he, thou mak'st a testament, 
As worldlings do, giving thy sum of more. 
To that which had too much." 
Speaking of the death of the duke of York, at the battle of 
Agincourt, the duke of Exeter, said: "Exe. . . He threw his 
woundsd arm and kiss'd his lips; and so, espoused to death, with 
blood he seal'd a testament of noble-ending love." (Henry V, Act 
IV. Scene VI.) 

Joan of Arc, in 1' Henry VI, said to Talbot: "Puc. . . . 
Help Salisbury to make his testament: This day is ours, as many 
more shall be." (Act I, Scene V.) 

The Painter tells the Poet, in Timon of Athens: "Pain. . . 
performance is a kind of will and testament, which argues a great 
sickness in his judgment that makes it." (Act V, Scene I.) 

On visiting Antioch, Pericles, Prince of Tyre, thus refers to his 
intention of making his will: 



152 THE LAW IN SHAKESPEARE. 

Sec. 108. Be it known by these presents. — 

"Le Beau. Three proper young men, of excellent growth 

and presence; — 
"Ros. With bills on their necks, — Be it known unto all 

men by these presents."^ 

This play upon the use of the word "presence," by the 
substitution of the legal terms employed, shows the per- 
fect familiarity of the Poet, with all forms of legal expres- 
sion. The words, ''Be It Known Unto iVll Men By These 
Presents," is a form of legal terms used at the commence- 
ment of legal documents and papers, such as deeds and 
writs, by way of warning or to make the instrument im- 
pressive. 

Sec. 109. Bankrupt. — 

"1 Lord. Anon, a careless herd, full of the pasture. 
Jumps along by him and never stays to greet him ; 
Ay, quoth Jaques, sweep on, you fat and greasy citi- 
zens; 
'Tis just the fashion: Wherefore do you look 
Upon that poor and broken bankrupt there."^ 

A "bankrupt" is a broken up, or ruined trader." When 
one becomes a bankrupt, as his credit is so far impaired 
as to render it impossible for him to do business in his 

"Per. I'll make my will then, and, as sick men do, 
Who know the world, see heaven, but feeling wo, 
Gripe not at earthly joys, as erst they did." 

(Act I, Scene I.) 
^ As You Like It, Act I, Scene 11. 

John Cade assumes the legal form in addressing Lord Say, in 
2' Henry VI, when he says: "Cade. . . . Be it known unto 
thee by these presence, even the presence of lord Mortimer, that 
I am the besom that must sweep the court clean of such filth as 
thou art." (Act IV, Scene VII.) 

Lucius assumes the legal formula, in Titus Andronicus, when 
he says: "Then, noble auditory, Be It Known to you," etc. (Act 

* As You Like It, Act II, Scene L 
=• 3 Stor. C. C. 453; 2 Bl. Comm. 471. 



THE LAW IN SHAKESPEARE. 153 

own name, where credit is essential, the commercial world 
generally "sweeps on" past such bankrupt, without the 
former business courtesies. The Poet's reference to such 
commercialism, as the fashion of such "fat and greasy 
citizens," to so "look" upon the "poor and broken bank- 
rupt" illustrates the deep sympathy, akin to the "divine 
gift of pity," which he felt for the afflicted of his kind. 

In Comedy of Errors (Act IV, Scene II) Dromio is made to 
say: "Dro. Time is a very bankrupt, and owes more than he's 
worth to season." 

Speaking of the policies of King Richard II, Lord Ross said to 
Lord Willoughby: 

"Ross. The earl of Wiltshire hath the realm in farm, 
Willo. The king's gone bankrupt, like a broken man." 

(Act IL Scene L) 

York observed, on the death of Gaunt, in Richard II: 
"YorTc. Be York the next that must be bankrupt so: 
Though death be poor, it ends a mortal wo." 

(Act II, Scene I.) 

In abdicating the throne. King Richard II, said: 
"K. Rich. . . . An if my word be sterling yet in England, . 
Let it command a mirror hither straight. 
That it may show me what a face I have. 
Since it is bankrupt of his majesty." (Act IV, Scene I.) 

In Romeo and Juliet (Act III, Scene II), Juliet is made to 
say: "0, break, my heart: poor bankrupt, break at once." 

In Venus and Adonis, it is said: "A smile recures the wound- 
ing of a frown; But blessed bankrupt, that by love so thriveth."' 

(465, 466.) 

In The Rape of Lucrece, covetousness is thus referred to: 
". . . gaining more, the profit of excess 
Is but to surfeit, and such griefs sustain. 
That they prove bankrupt in this poor-rich gain." (138, 140.) 
After the perpetration of his crime Tarquin is described: 
"With heavy eye, knit brow, and strengthless pace. 
Feeble Desire, all recreant, poor and meek. 
Like to a bankrupt beggar wails his case." (709, 711.) 

The following occurs in the LXVII' Sonnet: 
"Why should he live, now Nature bankrupt is, 
Beggar'd of blood to blush through lively veins?" (9, 10.) 



154 THE LAW IN SHAKESPEARE. 

Sec. 110. Forfeiture of land. — 

"Duke Fr But look to it; 

Find out thy brother, wheresoe'er he is. 

Seek him with candle; bring him dead or living 

Within this twelvemonth, or turn thou no more 

To seek a living in thy territory. 

Thy lands and all things that thou dost call thine 

Worth seizure, do we seize into our hands."^ 

This is tantamount to a declaration on the part of the 
Duke, to forfeit the title of Oliver, to his lands and tene- 
ments, unless he can deliver his brother, Orlando, to the 
Duke within a year, and to confiscate, by seizure and at- 
tainture all the lands of which he is seized. 

It was the principle of the common law — still recog- 
nized in the law of real property^ — that the paramount 
title or right to the property of the citizen rested in the 
sovereign, or Government, and that for just cause this 
title could be forfeited, or confiscated. 

Sec. 111. Writ extendi facias. — 

"Duke Fr. . . Well, push him out of doors, 
And let my officers of such a nature 
Make an extent upon his house and lands."^ 

After declaring that he will confiscate and forfeit all 
the lands of Oliver, if he does not deliver Orlando to him 
within a year, the Duke, in this verse, advises Oliver to 
turn the real estate, "his house and lands," over to the 
proper officer of the Duke, under a writ extendi facias. 
This is the writ, that, at common law, issued, after for- 
feiture or judgment, against the lands and tenements of 
the person named in the writ.* Writs fieri facias, issued 
against the personal estate of the debtor, while extendi 
facias, issued against his real estate and, in this connec- 

*As You Like It, Act III, Scene I. 
= Tiedeman, R. P. (3d Ed.), Sec. 1. 
sAs You Like It, Act III, Scene I. 
* Bouvier's Law Dictionary. 



THE LAW IN SHAKESPEARE. 155 

tion, it is noteworthy that the Poet uses the terms prop- 
erly, for the writ is spoken of as one properly reaching 
the real estate of the absent Orlando.^ 

Sec. 112. Vacation of court. — 

''Ros I'll tell you who time ambles withal, who 

time trots withal, who time gallops withal, and who 
he stands still withal. 

Orl Who stays it still withal? 

Ros. With lawyers in the vacation : for they sleep be- 
tween term and term and then they perceive not how 
times moves. "- 

In practice, the space of time for which a court holds 
its session, is called a "term"" and the period of time 
between the end of one term of court and the beginning 
of another term, is called the "vacation."* In vacation, 
as only the most urgent orders and rules are made by 
the Judge, in Chambers, this is the dull season for lawyers, 
when they could properly "sleep" so that they would "per- 
ceive not how time moves." 

Sec. 113. Jointure. — 

''Ros. Nay, an you be so tardy, come no more in my 
sight; I had as lief be woo'd of a snail? 

Orl. Of a snail? 

Ros. Ay, of a snail ; for though he comes slowly, he car- 
ries his house on his head ; a better jointure, I think, 
than you can make a woman. "^ 



^Furness shows that the terms are not properly used in this 
connection, as the writ extendi facias, only issued after judg- 
ment or a forfeiture, but as the declaration of the Duke is tanta- 
mount to a forfeiture of the goods, lands and property of Orlando, 
and a declaration of an intent to also work a forfeiture of Oliver's 
lands, the use of the terms is not so inappropriate, after all. 

- As You Like It, Act III, Scene II. 

' Bouvier's Law Dictionary. 

* Ante idem. 

*As You Like It, Act IV, Scene I. 



156 THE LAW IN SHAKESPEARE. 

A ''jointure," in the broader sense, is a joint estate lim- 
ited to both husband and wife.^ At common law a 
jointure was said to require a competent livelihood of free- 
hold, for the wife, in lands or tenements, to take effect, 
in profits, or possession, after the death of the husband.^ 
It was essertial that the estate be limited to the wife her- 
self ; that it be in satisfaction of the wife's dower and that 
it should be made before marriage.^ If so created, the 
jointure would bar a claim for dower, in the lands of the 
husband, if this estate was claimed, but otherwise not.* 

A bridegroom, presenting a house, by way of jointure, 
to his wife, before marriage, would create such an estate 
in her by way of "jointure," if the gift was so conditioned, 
hence the application of the term is proper, in the way 
it is used. 

Sec. 114. Acts by Attorneys. — 

'^Orl. Then, in mine own person, I die. 
Ros. No faith, die by attorney. The poor world is_ al- 
most six thousand years old and in all this time 

^2 Bl. Comm. 137; Tiedeman, R. P. (3d Ed.) 117. 

= Cruise Dig. tit. 7; 2 Bl. Comm. 137. 

"2 Bl. Comm. 137. 

^Tiedeman, R. P. (3d Ed.) 117. 

In bidding for the hand of Bianca, in Taming of the Shrew, 
Tranio is made to say: ^ 

"Tra. I'll leave her houses, three or four as good, 
Within rich Pisa's walls, as any one. 
Old signior Gremio has in Padua; 
Besides, two thousand ducats by the year. 
Of fruitful land, all which shall be her jointure." 

(Act II, Scene I.) 

Lewis, of France, thus replies to Warwick, in 3' Henry VI: 

"K. Lew. And now, forthwith, shall articles be drawn, Touching 

the jointure that your king shall make." (Act III, Scene III.) 

On the reconciliation, in Romeo and Juliet, Capulet is made to 

say, to Montague: 

"Cap. O, brother Montague, give me thy hand: 
This is my daughter's jointure, for no more 
Can I demand." (Act V, Scene III.) 



THE LAW IN SHx\KESPEARE. 157 

there was not one man died in his own person, 
videlicet, in a love cause. "^ 

The use of the term "Attorney" here is in the sense of 
one appointed by another to perform some act for him, 
as distinguished from an attorney at law, who, as an offi- 
cer of a court of justice, is retained to perform some 
service in connection with a pending cause before the 
court. 

An attorney in fact is one who acts under a special 
appointment for the commission of some certain act, or 
the performance of general acts in some particular busi- 
ness.^ The play upon the word is in the legal sense only, 
for instead of dying in his "own person," the request is 
that he die by "attorney." Acts by attorney, are very 
properly distinguishable from those in one's own person 
and while the effect in law, is the same and the principal 
is liable for the acts of his attorney, duly authorized, the 
same as if personally performed, this, of course, could not 
be true of such an act as that mentioned for to die, by an 
attorney, would be not to die in person. 

Sec. 115. Examining Justice. — 

"Ros. Well, time is the old justice that examines all such 
offenders and let time try."' 

The comparison of an examining magistrate to Time, 
that tries all offenders, is, in accordance with the uni- 

»As You Like It, Act IV, Scene I. 

^ Bacon, Abr. Attorney; Story, Agency Sec. 25. 

Speaking of his offices in wooing Margaret for his sovereign, 
Suffolk said, in 1* Henry VI: "Suff. . . And yet, methinks, I 
could be well content, To be mine own attorney in this case." 
(Act V, Scene III.) 

Suffolk urges the King, in favor of Margaret, in 1' Henry VI: 
"Suft- Marriage is a matter of more worth, Than to be dealt 
with by attorneyship." (Act V, Scene V.) 

"As You Like It, Act IV. Scene I. 



158 THE LAW IN SHAKESPEARE. 

versa! law of compensation, which rewards or punishes all 
offenders of the law, an apt comparison. Time, in the 
law, often furnishes legal presumptions, for or against 
a criminal, according to the facts and circumstances sur- 
rounding the crime, which makes the similitude the more 
complete.^ 

^ Bouvier's Law Dictionary, Time. 



CHAPTER XI. 

"ALL'S 'V\'T:LL that ends WELL: 



Sec. 116. 


Wards — Heirs of fortune under King as. 


117. 


Giving testimony against one — Impeachment, 


118. 


Premises. 


119. 


Theft. 


120. 


Descent. 


121. 


Lawful Act. 


122. 


Unlawful Intents. 


123. 


Entail — Remainders. 


124. 


Evidence. 


125. 


Divorce. 



Sec. 116. Wards — Heirs of fortune under King as. — 

"Bertram. And I in going, madam, weep o'er my father's 
death anew; but I must attend his majesty's com- 
mand, to wliom I am now in ward, evermore in sub- 
jection."^ 

A ward, in law, is one who is under the guardianship 
and subject to the care and control of his guardian, until 
he is emancipated by the law, or becomes of age.- In 
England, the heirs of large fortunes were held to be the 
King's wards. This was an incident of the old feudal 
system, by virtue of which the lord of the manor had 
the care of his tenants' person during his minority, for, 
in legal contemplation, all citizens owning real estate are 
but tenants of the crown. ^ 



^ All's Well That Ends Well, Act I, Scene I. 
- Bouvier's Law Dictionary. 
^Tiedeman, R. P. Chap. 1 (3d ed.). 

This custom of wardship did not obtain in France, but Shake- 
speare gives the manners and customs and laws of England to all 
other countries, then he follows the original story, in holding that 
the King had the right to select a wife for Bertram. Rolfe's 
"All's Well That Ends Well," p. 151, notes. 

(159) 



160 THE LAW IN SHAKESPEARE. 

Sec. 117. Giving testimony against one — Impeachment. — 

"Countess. Go not about; my love hath in't a bond 

Whereof the world takes note. Come, come, disclose 
The state of your affection, for your passions 
Have to the full appeach'd."^ 

One is said to be impeached, or "appeached," when 
one's guilt is disclosed by facts or testimony, at variance 
with the evidence of the party testifying in a court of 
justice.- One w^ho "turns state's evidence" against his 
co-criminal, is hence said to '' 'peach" upon his confed- 
erate in crime, and when evidence is introduced to break 
down the character or testimony of a witness, he is said 
to be impeached or his evidence broken down.^ 

The Countess compares the passions or love of Helena 
to a witness who has impeached the affection of her 
heart, hence urges that no further dissembling will avail 
her. 

Sec. 118. Premises. — 

''King. Here is my hand ; the premises observ'd. 

Thy will, by my performance shall be serv'd."* 

"Premises" is here used in the sense of that which has 
already been put, or according to statements previously 
made,^ rather than with the meaning given to such term, 
in conveyances. 

In other words, the King, proposes, on the compliance 
with the conditions prescribed, that he vdll perform such 
acts as the one addressed shall will. 

* All's Well That Ends Well, Act I, Scene III. 
-Greenleaf, Evid, (14 ed.). 

^ Halliwell-Phillips quotes Palsgrave: "I apeche, I accuse, 
f accuse; kursed be the preest of God, that dyd apeche me wrong- 
fully and without deservyng." Rolfe's All's Well That Ends 
Well, 169, notes. 

* All's Well That Ends Well, Act II, Scene II. 

"This term is no doubt taken from the Latin prae. before and 
mittere, to put. Bouvier's Law Dictionary. 



THE LAW IN SHAKESPEARE. 161 

Sec. 119. Theft.— 

"Hel. I am not worthy of the wealth I owe; 
Nor dare I say, 'tis mine ; and yet it is ; 
But, like a timorous thief, most fain would steal, 
What law does vouch mine own."^ 

As theft is the secret and wrongful abstraction of the 
property of another, without his consent,^ it is of course 
of the first essence of the crime that the property taken 
was that of another than the rightful owner, since no man 
can steal his own property. A thief too timorous to steal 
from another, would of course not be a thief in taking his 
own, but the expression illustrates "the timidity of Helena, 
in claiming her lawful rights, as she dare not say " 'tis 
mine; and yet it is." 

> All's Well That Ends Well, Act II, Scene V. 
^Allison, Cr. Law, 250. 

In Macbeth, Malcolm said to Donalbain: "There's warrant in 
that theft which steals itself, when there's no mercy left." 
(Macbeth, Act II, Scene III.) 

King Richard II, said of Bolingbroke: 
"iT. Rich. For well we know, no hand of blood and bone 
Can gripe the sacred handle of our sceptre, 
Unless he do profane, steal, or usurp." (Act III, Scene III.) 
In 1' Henry IV (Act I, Scene II) Falstaff said to Prince Henry: 
"Fal. Marry, then sweet wag, when thou art king, let not us, 
that are squires of the night's body, be called thieves of the day's 
beauty." 

King Henry tells Prince of Wales, in 2' Henry IV: "K. Hen. 
. . . Thou hast stol'n that, which, after some few hours, were 
thine without offense." (Act IV, Scene IV.) 

The duke of Exeter, in Henry V, answering the argument of 
Westmoreland as to danger from invasions by the Scots, said: 
"We have locks to safeguard necessaries, and pretty traps to 
catch the petty thieves." (Act I, Scene II.) 

Troilus thus argues for the retention of Helen, in Troilus and Cressida: 
''Trol. . . O theft most base; 

When we have stolen what we do fear to keep? 

But, thieves, unworthy of a thing so stolen, 

That in their country did them that disgrace. 

We fear to warrant in our native place." (Act II, Scene II.) 



162 THE LAW IN SHAKESPEARE. 

Sec. 120. Descent. — 

"Hel. ... A ring the county wears, that downward 
hath succeeded in his house, from son to son, some 
four or five descents, since the first father wore it."^ 

"Descents" is here used in the sense of generations, not 
as a word showing title to the ring referred to. A title 
by descent is the title by which one person, on the death 
of another, acquired the real estate of the latter, as his 
heir at law.^ The rules of descent are applicable only 
to real estate of inheritance and not to personalty. 

That the ring has passed from son to son, successively, 
is in keeping with the English law of primogeniture, which 
gave the heirlooms, such as that referred to, to the first 
born, rather than to the younger children. 

In justifying thievery, Timon of Athens, is made to say, to 

the two Thieves who come upon him: 

"Tim. I'll example you with thievery: 

The sun's a thief, and with his great attraction, 
Robs the vast sea; the moon's an arrant thief. 
And her pale fire she snatches from the sun; 
The sea's a thief, whose liquid surge resolves 
The jsoon into salt tears: the earth's a thief, 
Tkat feeds and breeds by a composture stolen 
From general excrement: each things a thief." 

(Act IV, Scene III.) 

* All's Well That Ends Well, Act III, Scene VII. 
= 2 Bl. Comm. 201. 

In his charges against Mowbray, in King Richard II, Boling- 
broke said: 

"Boling. ... By the glorious worth of my descent, 
This arm shall do it, or this life be spent." 

(Act I, Scene I.) 

In re-investing Richard Plantagemet with his inheritance, 
Henry VI, is made to say: 

"K. Hen. . . If Richard will be true, not that alone. 
But all the whole inheritance I give. 
That doth belong unto the house of York, 
From whence you spring, by lineal descent." 

(Act III, Scene I.) 



THE LAW IN SHAKESPEARE. 163 

Sec. 121. Lawful act. — 

"Hel. . . Let us assay our plot ; which_, if it speed, 
Is wicked meaning in a lawful deed, 
And lawful meaning in a lawful act; 
Where both not sin and yet a sinful fact."^ 

This verse recognizes the essential of every crime, the 
wrongful intent, coupled with the wrongful act, in the 
commission of the crime.^ A deed not otherwise forbid- 
den by law, may be prompted by a bad intent or wicked 
object, but yet, as the act itself is lawful no crime is com- 
mitted, but where both the act and the intent are lawful 
it never is held to constitute a crime. The sinful intent on 
the part of Bertram, not being participated in by Helena 
and she being really his wife, with whom cohabitation was 
not sinful, there was thus the "wicked meaning in a law- 
ful deed, and lawful meaning in a lawful act," within the 
contemplation of Helena. 

Sec. 122. Unlawful intents. — 

"1 Lord. Is it not meant damnable in us, to be trumpeters 
of our unlawful intents?"^ 

To render an act, forbidden by law, criminal, there must 
always be a criminal or "unlawful intent" in the commis- 
sion of the act* and this is one of the essential elements of 

Margaret of Anjou said to the weak king, Henry VI, in 2 Henry VI.: 
•'©. Mar. And Humphrey is no little man in England. 

First note, that he is near you in descent." (Act III. Scene I.) 

The Messenger advises King Henry, in 2' Henry VI: "Mess. 
Jack Cade proclaims himself lord Mortimer, descended from the 
duke of Clarence's house: And calls your grace usurper, openly." 

(Act IV, Scene IV.) 

Lord Hastings, in Richard III, replies to the suggestion of 
Catesby, that he join the forces of Richard III: "Hast. But, 
that I'll give my voice to Richard's side, To bar my master's 
heirs, in true descent, God knows, I will not do it, to the death:" 

(Act III, Scene IL) 

» All's Well That Ends Well, Act III, Scene VII. 

= 1 Russell, Crimes, (Greaves Ed.) 48. 

3 All's Well That Ends Well, Act IV, Scene III. 

*1 Bishop, Criminal Law, Sec. 221. 



164 THE LAW IN SHAKESPEARE. 

the crime, which the prosecution must always establish. 
Sometimes it is difficult to prove that the commission of 
an act was prompted by a criminal or "unlawful" intent, 
hence the conclusion that it would be unpardonable in the 
si^eaker to himself act as the trumi^eter of his "unlawful 
intents." 

Sec. 123. Entail — Remainders. 

"Par. Sir, for a quart d'ecu he will sell the fee-simple of 
his salvation, the inheritance of it ; and cut the entail 
from all remainders, and a perpetual succession for it 
perpetually."^ 

A fee-simple is a freehold estate of inheritance, free 
from conditions. It is the highest estate known to the 
law and is absolute, so far as it is possible to possess an 
absolute right of property in land." Freehold estates are 
either of inheritance or those not of inheritance," hence 
the "inheritance" of his salvation, is used as a synonym 
for the fee-simple absolute estate therein. 

An estate tail or an "entail" was an estate of inheritance, 
that was conditioned to descend to the heirs of the donee's 
body, instead of to his heirs generally, in a direct line, so 
long as his direct posterity continued and the estate deter- 
mined upon the death of the owner without issue.* A 
remainder is the future estate in lands which is supported 
and preceded by a particular estate in possession, which 
must determine before the remainder takes effect.^ 

As a fee-simple estate is one free from all "entails" and 
"remainders," and "perpetual succession" is likewise an 
incident of such an absolute estate in lands, as distin- 
guished from the more limited estates, with which it is 
contrasted, in this verse, it is apparent that the terms used 
are employed in their proper legal sense. 

* All's Well That Ends Well, Act IV, Scene III. 

^Teideman, R. P. Sec. 29 (3d ed.). 

^Tiedeman, R. P. Sec. 26 (3d ed.). 

*Tiedeman, R. P. Sec. 38 (3d ed.). 

sTiedeman, R. P. Sec. 296 (3d ed.). 



THE LAW IN SHAKESPEARE. 165 

Sec. 124. Evidence. 

"King. . . . But thou art too fine in thy evidence; 
therefore stand aside."^ 

Evidence, in law, includes all the means by which any 
alleged fact is established or disproved.^ In the connee- 
tion in which the word is used in this verse, it means oral 
evidence, or the testimony of a witness, given viva voce, 
as distinguished from written evidence? As the object of 
all evidence is to ascertain the truth regarding the fact 
alleged or disaffirmed, testimony of witnesses is therefore 
confined to the point in issue and where the witness draws 
unnecessary distinction, or vacillates from the truth, the 
witness is sometimes said to be drawing too fine distinc- 
tions. The meaning of this is, that instead of meeting 
the issue, the witness dodges the issue by distinctions and 
points too fine to be appreciated by those seeking the truth. 
After a witness has testified it is a common thing for the 
Counsel or Court to ask the witness .to "stand aside," hence 
the King, on rejecting the testimony offered because the 
evidence was "to fine," asked the witness to "stand aside." 

In Titus Andronicus, Marcus speaks of "the poor remainder of 
Andronici." (Act V, Scene III.) 

Posthumus bids Cymbeline adieu, in the following words: 
"Post. The gods protect you: and bless the good remainders of 
the court." (Act I, Scene II.) 

Polonius tells the Queen, in Hamlet: "Pol. For this effect, de- 
fective, comes by cause; Thus it remains and the remainder, 
thus." (Act II, Scene II.) 

» All's Well That Ends Well, Act V, Scene III. 
»1 Greenl. Evid. Sec. 1, Chap. 1. 
' 1 Phillipps Evid. 166. 

Clarence asks of the murderers, before his murder, in King 
Richard III, Act I, Scene IV: "Clar. . . . Where is the evi- 
dence that doth accuse me? What lawful quest have given their 
verdict up unto the frowning judge?" 

Clarence tells Brakenbury, in King Richard III: "Clar. O, 
Brakenbury, I have done these things, That now give evidence 
against my soul." (Act I, Scene IV.) 



166 THE LAW IN SHAKESPEARE. 

Sec. 125. Divorce. 

"Hel. If it appear not plain, and prove untrue, 
Deadly divorce step between me and you."^ 

Marriage being a legal relation and not a mere contract, 
between husband and wife, it takes some legal authority 
to dissolve the relation and the dissolution or suspension, 
by law, of such relation, is called divorce." Formerly, in 
England, ecclesiastic courts alone had jurisdiction over 
divorce suits and the temporal courts had no authority to 
dissolve the relation of husband and wife. The divorce 
absolute was called a divorce from the bonds of matrimony, 
or a vinculo matTvmonii, while a mere suspension of the 
relation was called a mensa et thoro, or a denial of the bed 
and board of the husband or wife.^ 



• AU's Well That Ends Well, Act V, Scene III. 
^ Bishop, Marriage and Divorce, Sec. 292. 
' Bishop, Marriage and Divorce, Sec. 3. 

Polixenes, in Winter's Tale, is made to say, to his son: "Pol, 
Mark your divorce, young sir, whom son I dare not call." (Act 
IV, Scene III.) 

In King Richard II, Bolingbroke thus addressed Bushy and 
Green: 

''Boling. . . . You have, In manner, with your sinful hours, 
Made a divorce betwixt his queen and him; 
Broke the possession of a royal bed, 
And stained the beauty of a fair queen's cheeks. 
With tears drawn from her eyes, by your foul wrongs." 

(Act III, Scene I.) 
King Richard II is made to say, to Northumberland: 
"K. Rich. Doubly divorc'd? Bad men, ye violate 
A twofold marriage; 'twixt my crown and me; 
And then 'twfxt me and my married wife." (Act IV, Scene I.) 
Gloster thus divorces his wife, on her arrest for treason, in 2' 
Henry VI: 

"Glo. ... I banish her, my bed and company; 
And give her, as a prey to law and shame. 
That hath dishonor'd Gloster's honest name." 

(Act II, Scene I.) 



THE LAW IN SHAKESPEARE. 167 

In speaking of the dissolution of the relation of hus- 
band and wife as "deadly," the Poet clearly entertained 
the present view of the evil effects of divorces, as a blight 
upon the home life and a remedy to be avoided. 

Queen Margaret tells the king, in 3' Henry VI : "Q. Mar. . . 
thou prefer'st thy life, before thine honour; And seeing thou 
dost, I here divorce myself, Both from thy table, Henry and thy 
bed. Until tuat act of Parliament be repealed, Whereby my son 
is disinherited." (Act I, Scene I.) 

Replying to Cardinal Wolsey's advice to trust her cause to the 
King, permitting him a divorce from her. Queen Katherine said: 
"Q. Kath. Nothing but death shall e'er divorce my dignities." 

(Act III, Scene I.) 

On finding gold in the forest, Timon of Athens, said: "Tim. 
O thou sweet king-killer, and dear divorce, 'twixt natural son and 
sire: thou bright defiler of Hymen's purest bed." (Act IV, 
Scene III.) 
Desdemona thus pleads with the beast Tago, in Othello: 
"That I do not yet, and ever did. 
And ever will, — though he do shake me off 
To beggarly divorcement, — love him dearly. 
Comfort forswear me." (Act IV, Scene II.) 

Venus thus addresses death, in Venus and Adonis: 
" 'Hard-favor'd tyrant, ugly, meager, lean, 
Hateful divorce of love, — thus chides she death." (931, 932.) 



CHAPTER XII. 

"THE TAMING OF THE SHREW." 

Sec. 126. Third-borow. 

127. Court-leet, or Manor Court. 

128. Adversaries at Law. 

129. Compounding crime. 

130. Servant assaulting master. 

131. Punishment by the Pillory. 

132. Settlement by way of Assurance. 

133. Chattels. 

134. "Packing" a witness. 

Sec. 126. Third-borow.— 

"Host. I know my remedy, I must go fetch the third 

borough. 
Sly. Third, or fourth, or fifth borough, I'll answer him 

by law ; 
I'll not budge an inch, boy; let him come, and 

kindly."^ 

A Thirdborough, or third-borow,- as sometimes called, 
was an under constable and in old English law was spoken 
of as an officer holding about the same power and sub- 
ject to the same limitations as a constable.^ As a peace 
officer and one invested with the authority to preserve the 
peace, he would have had jurisdiction over the person 
of the offender, in this instance, for disturbance of the 
peace and destroying the property of the Hostess. 

Sec. 127. Court-leet, or manor court. — 

"1 Serv. O, yes, my lord, but very idle words; 

For though you lay here in this goodly chamber. 
Yet would you say ye were beaten out of door, 

* Taming of the Shrew, Induction, Scene I. 
^ Bouvier's Law Dictionary. 
^Lambard, Duty of Const., 6. 

In Love's Labour's Lost, the Constable, Dull, is made to say: 
"Dull. I myself reprehend his own person, for I am his grace's 
tharborough," meaning that he is a peace officer. (Act I, Scene I.) 

(168) 



THE LAW IN SHAKESPEARE. 169 

And rail upon the hostess of the house, 
And say you would present her at the leet, 
Because she brought stone jugs and no seal'd quarts."^ 

A court-leet was the most ancient court for the trial 
of criminal cases known to the common law. It was a 
court of record, with the same jurisdiction in some par- 
ticular precinct as the sheriff's tourn in the county.^ This 
court assumed jurisdiction of those petty offenders, ac- 
cused of using false weights and measures, hence the 
conclusion by the servant that the hostess would be pre- 
sented and charged, at the court-leet, because she used 
stone-jars, instead of the legal sized, quart-pots, duly sealed 
and approved.^ 

Sec. 128. Adversaries at law. — 

"Tra. Please ye we may contrive this afternoon, 
And quaff carouses to our mistress' health ; 
And do as adversaries do in law, — 
Strive mightily, but eat and drink as friends."* 

Manifestly, in Shakespeare's time, as at the present day, 
the legal profession was noticeable for the absence of pro- 
fessional jealousies, such as characterize the other learned 
professions in a more marked degree. In the medical pro- 
fession and in the ministry — where humility and toler- 
ance, it would seem, would prompt the members of such 
profession to be charitable to their rivals — this jealousy 
is particularly marked, while in the law, more than in any 
other of the learned callings, opponents to-day, as in the 
time of Shakespeare, "Strive mightily, but eat and drink 
as friends." 



^ Taming of the Shrew, Induction, Scene II. 
= 4 Bl. Comm. 273. 

^Rolfe's Taming of the Shrew, p. 158, notes. 
* Taming of the Shrew, Act I, Scene I. 

This verse is evidence of the fact that the Poet not only knew 
the law but lawyers, as well. Perhaps this is why he knew the 
law, because of his association with lawyers. This verse is not 



170 THE LAW IN SHAKESPEARE. 

Sec. 129. Compounding crime. — 

"Hor. . . . Rise, Grumio, rise; we will compound 
this quarrel."^ 

Compounding a felony or misdemeanor rendered the 
party so compounding such an offense, an accessory, at 
common law.^ Any act whereby the prosecutor or ag- 
grieved person, for a reward, agreed not to prosecute the 
offense was a compounding of the crime.^ But the term 
is used here as a synonym for compromise, rather than 
in the technical sense. 

Sec. 130. Servant assaulting- master. — 

"Gru. Nay, 'tis no matter what he "leges in Latin — if 
this be not a lawful cause for me to leave his service — 
Look you, sir, — he bid me knock him, and rap him 
soundly, sir; Well, was it fit for a servant to use his 
master so?"* 

The rights and duties of domestics, or those menial em- 
ployees who were lodged and fed in the house of the mas- 
ter, were well established by the common law of England.^ 
The legal duty was imposed on the servant to defend 
the person of his master and an assault in the defense of 
the person of the master, was held justifiable, at common 
law, as this was deemed a part of his duty, for which he 
received his wages.® Instead of defending his master from 
an assault, as Grumio construed his directions in this in- 
stance, he was asked to himself assault his master, an act 



like a lawyer would write, for the common courtesy of the pro- 
fession is so much a part of the make-up of a lawyer and seems 
such a matter of fact that a lawyer would not be apt to remark 
it, or give such emphasis to the fact, as Shakespeare has. 

' Taming of the Shrew, Act I, Scene II. 

= Hawkins, PI. Cr. 125. 

' 1 Chitty, Crim. Law, 4. 

* Taming of the Shrew, Act I, Scene II. 

n Bl. Comm. 324. 

«1 Bl. Comm. 429. 



THE LAW IN SHAKESPEARE. 171 

directly at variance with his legal duty, as a competent 
servant. This would have been inconsistent with the 
legal duty owing by him, under the English law, toward 
his master, hence, whatever the rule quoted in Latin, it was 
Grumio's contention that a direction to assault his master 
was a sufficient ground to leave his service, since such an 
assault would have caused him to violate the law. 

Sec. 131. Punishment by pillory. — 

"Hot. . . And, with that word, she struck me on the 
head, 
And through the instrument my pate made way; 
And there I stood amazed for a while, 
As on a pillory, looking through the lute."^ 

Katherine had so thrown the instrument over his head 
as to leave his head protruding through it, as one im- 
paled in the pillory. 

The pillory was an ancient instrument of torture and 
for the punishment of criminals, much used in England 
prior to 1837, when its use was discontinued. It consisted 
of a stout plank, fixed, like a sign board, on a pole, which 
was, in turn, supported by a wooden platform, from the 
ground. Another plank, parallel with the first was sim- 
ilarly arranged, on a hinge, with a large hole, for the 
neck of the culprit and two smaller holes for the hands, 
and the boards were so arranged that when the neck and 
hands of the criminal were inserted against the first board, 
the other was fastened against it, thus leaving the culprit 
imprisoned by his neck and wrists, where he was kept 
and subjected to various indignities, according to the 
gravity of his offense. By the statute of the pillory- (51 
Hen. Ill, c. 6) the offenders liable to be subjected to such 
punishments were ''forestallers, users of deceitful weights, 
perjurers, forgers," etc., and later libelers and publishers 
of books not submitted to the censorship of the king were 



' Taming of the Shrew, Act II, Scene I. 

'II Reeve's History Eng. Law, p. 302, et seq. 



172 THE LAW IN SHAKESPEARE J 

subjected to this punishment, among whom was a list of 
distinguished men, in England. 

Sec. 132. Settlement by way of assurance. — 

"Bapt. I must confess your offer is the best, 
And, let your father make her the assurance. 
She is your own."^ 

An assurance is a settlement, by written contract, in 
legal form, of property or business differences between the 
parties to the agreement, by the terms of which the one 
is assured of a complete right or title, as against the other. ^ 
Deeds of assurance were used to grant marriage portions 
and this is the way the term is applied in this connection. 

Sec. 133. Chattels.— 

"Pet. ... I \y\\\ be master of w^hat is mine own : 
She is my goods, my chattels; she is my house. 
My household stuff, my field, my barn. 
My horse, my ox, my ass, my any-thing."^ 

A chattel, according to the English law, is any kind of 
property which, with reference either to the nature of the 
subject or the character of the interest possessed in it, was 
not a freehold. That class of property known as chattels, 
included not only movable property, but also all classes of 
property, which, though immovable, was not held under 
the feudal tenure.* 

Any interest in land not amounting to a freehold, was 
held to be a chattel interest therein. But as between prop- 
erty thus savoring of the realty and mere personal mov- 
ables, such as money, plate, cattle, or such like property, 
there was a natural distinction, so chattels were divided 
into chattels real and chattels personal. All character of 
chattels, at the old common law, were regarded as inferior 



1 Taming of the Shrew, Act II, Scene I. 
='Bouvier's Law Dictionary. 
^Taming of the Shrew, Act III, Scene II. 
*Tiedeman, R. P. (3d ed.) Ch. 1. 



THE LAW IN SHAKESPEARE. 173 

to the kind of property known as real estate/ hence 
Petruchio calls Katharina his "chattel," to show his 
prowess, w^ith reference to his ability to move her at his 
will, since by the law, the situs of personal property was 
held to accompany the person of the owner. 

Sec. 134. Packing a witness. — 

"Gre. Here's packing, with a witness to deceive us all."^ 

Packing is here used in the sense of a deception by false 
appearances; a counterfeit, or a delusion and the term is 
applied in law to the act of falsely organizing a jury to 
render a certain verdict.^ In other words, a jury is said 
to be "packed" when men are qualified who falsely swear 
that they have no interest in the controversy or issue to 
be tried, after pledging themselves to return a verdict for 
one side or the other. The witness was falsely personating 
another, in the sense the term is used here and had agreed 
to give false testimony, or perjury, as the speaker intended. 

"2 Bl. Comm. 384. 

In Henry V (Act II, Scene II) Pistol said to Hostess Quickly: 
"Pist. Come, lets away. — My love, give me thy lips; Look to my 
chattels and my movables." This shows the Poet's familiarity 
with the proper use of the term, for by the second noun, he not 
only used a synonym, but apparently did it to define the first one 
used. 

On discovery of the duplicity of Cardinal Wolsey, King Henry 
issued a writ against him to forfeit all his "goods, lands, tene- 
ments, chattels and whatsoever," etc. (King Henry VIII, Act 
III, Scene II.) 

= Taming of the Shrew, Act V, Scene II. 
^ Bacon, Abr., Juries (M.). 

The Moor, Aaron, in Titus Andronicus, speaks of packing with 
Muliteus, for the exchange of children, as follows: 
"Aar. . . Go pack with him, and give the mother gold. 
And tell them both the circumstance of all." 

(Act IV, Scene II.) 

In Cymbeline, Cloten asks: "Who is here? What, are you 
packing, sirrah?" (Act III, Scene V.) 



CHAPTER XIII. 

"THE WINTER'S TALE." 

Sec. 135. Time overthrows Law and Custom. 

136. Trespass. 

137. Negligence distinguished from wilfulness. 

138. Prisoner's fees. 

139. Not guilty. 

140. King's prerogative. 

141. Child born in prison. 

142. Commitment to jail. 

143. Arraignment of Hermione. 

144. Surmises, not proof of guilt. 

145. Indictment. 

146. Torture by "boiling in oil". 

147. Lawyer's points. 

148. Arrested in the act, or, "Taken with the Manner." 

149. Witchcraft and practice of magical arts. 

Sec. 135. Time overthrows law and customs. — 

"Time, as Chorus. Since it is in my power, 

To o'erthrow law, and in one self-born hour 
To plant and o'erwhelm custom."^ 

The coupling of law and custom, in this verse, shows 
the knowledge of the Poet of the origin of law, for the 
English common law was but the crystallization of those 
customs which had continued until they came to be recog- 
nized as law, by the courts." Custom differs from pre- 
scription, in that the latter is personal and annexed to 
the owner of a particular estate, while a custom extends 
to all within the district where it obtains.^ In order to 
establish a custom, such as would confer a right at law, 



* Winter's Tale, Act I, Scene I. 

=^ Bacon, Abr., 1; 1 Bl. Comm. 76; 2 idem. 31. 

3 2 Bl. Comm. 263. 

Queen Margaret observes, in 3' Henry VI: "Q. Mar. Yet 
heavens are just and time suppresseth wrongs." (Act III, Scenes 
III.) 

(174) 



THE LAW IN SHAKESPEARE. 175 

it is necessary to show that it had existed for a time such 
that the "memory of man runneth not to the contrary 
thereof," and if the usage, in connection with the right 
claimed, had ceased for any length of time, the interrup- 
tion of the custom would necessitate a new beginning, be- 
cause it occurred within the "memory of man." Hence, 
it is that Time plays a very important part in the estab- 
lishment of customs and laws, and it is consequently in 
the power of Time "To o'erthrow law and in one self-born 
hour, to plant and o'erwhelm custom." 

Sec. 136. Trespass.— 

"Cam. Be plainer Avith me; let me know my trespass 
By its own visage: if I then deny it, 'tis none of 



mme."^ 



A trespass is any wrongful act or omission resulting in 
injury to the person or property of another.- The action 
of trespass lies as well for injuries to the person, as by 
an assault and battery,^ as for an injury to the real estate 
of the injured person.* If the real estate was entered by 
force and arms, it was called, at the common law, trespass 
VI et armis, while a mere entry, without force, was called 
trespass by breaking the close.^ However, the distinctions 
between the different kinds of trespass are not important 
here. 

The speaker asks for the facts in connection with the 
charge of a wrongful act, on his part, not the mere conclu- 
sion as to such offense and he promises, if the facts stated 
are true, to admit them, or else he did not do the wrong 
charged against him. 



* Winter's Tale, Act I, Scene II. 
'3 Bl. Comm. 208. 
^2 Aiken, (Vt.) 465. 
*3 Bl. Comm. 209. 
n Chitty, PI. 439. 

Mowbray, duke of Norfolk, thus refers to the father of his foe, 
in King Richard II (Act I, Scene I): 



176 THE LAW IN SHAKESPEARE. 

"Nor. . . . Once did I lay an ambush for your life, 
A trespass that doth vex my grieved soul." 
The Duchess of York thus addresses her husband: 
"Duch. Why, York, what wilt thou do? 

Wilt thou not hide the trespass of thine own?" 

(King Richard II, Act V, Scene II.) 

The Earl of Worcester, is quoted, in 1' Henry IV, as follows: 
"Wor. . . . My nephew's trespass may be well forgot. 
It hath the excuse of youth, and heat of blood." 

(Act V, Scene II.) 

The Duke of Exeter replied to the Dauphin of France: "Exe. 
. . caves and womby vaultages of France shall chide your 
trespass, and return your mock, in second accent of his ord- 
nance." (Act II, Scene III.) 

Clarence tells Warwick, in 3' Henry VI: "Clar. I am sorry for 
my trespass made." (Act V, Scene I.) 

Speaking of the friendship between Caesar and Antony, Menaa 
said to Pompey, in Antony and Cleopatra: 
''Men. I cannot hope, 

Caesar and Antony shall well greet together: 
His wife, that's dead, did trespasses to Csesar." 

(Act II, Scene I.) 

On the first meeting between Romeo and Juliet, she tells him, 
on being kissed: "Then have my lips the sin that they have 
took." And he replies: "Sin from my lips? O trespass sweetly 
urg'd: Give me my sin again." (Act I, Scene V.) 

Before accomplishing her ruin, Tarquin is thus made to address 
Lucrece: 

"And thou, the author of their obloquy 
Shalt have thy trespass cited up in rhymes 
And sung by children in succeeding times." (523, 525.) 

And to this she is made to reply: 
"Think but how vile a spectacle it were, 
To view thy present trespass in another." (631, 632.) 

Lucrece complained that: 
"The illiterate, that know not how 
To cipher what is writ in learned books. 
Will quote my loathsome trespass in my looks." (810, 812.) 

And the innocent Lucrece concluded that "few words would fit 
the trespass best." (1612.) 



IHE LAW IN SHAKESPEARE. 177 

Sec. 137. Negligence distinguished from wilfuUness. — 

"Cam. . . I may be negligent, foolish and fearful; 
In every one of these no man is free, 
But that his negligence, his folly, fear, 
Amongst the infinite doings of the world. 
Sometime puts forth: In your affairs, my lord, 
If ever I were wilful — negligent. 
It was my folly; if industriously 
I played the fool, it was my negligence, 
Not weighing well the end."^ 

The distinction noted here, between a mere negligent 
act and an act wilfully done, will be best appreciated by 
members of the legal profession. Simple negligence is a 
failure to use such care and caution as a reasonably pru- 
dent man would exercise under the circumstances, as a 
result of which another sustains an injury in his person 
or his property." WilfuUness is a wrongful act, inten- 
tionally done, to the injury of another in his person or 
his property.^ Because of the distinction between the 
two, and the absence of a wrongful act, intentionally done, 
in the former, there is a wide difference between the effect 
of the two, upon the liability of one charged with the 
effect of the wrongful act. 

The Poet makes the speaker attempt to take away the 
element of willfulness from his intentional wrongful acts, 
by the plea that such acts resulted from mere weakness or 
levity, rather than from a wilfull intent to wrong, while 
his merely negligent acts were done, "not weighing well 
the end," which is a universal characteristic of simple neg- 
ligence. 

» Winter's Tale, Act I, Scene II. 

=*! Thompson's, on Negligence, Sees. 1, 15; 1 White, Per. Inj. on 
R. R. Chapter 1. 

'1 Thompson, on Negligence, Sees. 20-22; 1 White, Per. Inj. on 
R. R. Chapter 1. 

Speaking of the lack of precaution before the battle of Bour- 
deaux, Talbot, in 1' Henry VI, said: "Tal. O, negligent and 
heedless discipline." (Act IV, Scene II.) 



178 THE LAW IN SHAKESPEARE. 

Commenting on his neglect in losing his inventory, which 
occasioned his undoing, Cardinal Wolsey, said, in King Henry 
VIII: "Wol. O negligence fit for a fool to fall by." (Act III, 
Scene II.) 

Caesar tells Octavia, in Antony and Cleopatra: 
''Caes. Your letters did withold our breaking forth; 
Till we perceived, both how you were wrong led. 
And we in negligent danger." 
And Cleopatra uses this bit of philosophy, in talking to Antony: 
*'Cleo. Celerity is never more admir'd, 

Than by the negligent." (Act III, Scenes VI, VII.) 

In Cymbeline, a gentleman is made to say: "1 Gent. How- 
soe'er 'tis strange, or that the negligence may well be laugh'd yet 
is it true, sir." (Act I, Scene I.) 

Goneril tells the Steward, in King Lear: "Put on what weary 
negligence you please," etc. (Act I, Scene I.) 

In Antony and Cleopatra, Augustus speaks of danger aug- 
mented by negligence, as follows: 

"Your letters did withold our breaking forth 
Till we perceiv'd both how you were wrong led 
And we in negligent danger." (Act III, Scene VI.) 

In Hamlet, Laertes, thus speaks of the death of his father, 
Polonius: 

"To this point I stand, — That both the worlds I give to negli- 
gence, 
Let come what comes; only I'll be reveng'd Most thoroughly 
for my father." (Act IV, Scene V.) 

Before arousing Brabantio, lago and Roderigo, in Othello, say: 
"Rod. Here is her father's house; I'll call aloud. 
lago. Do; with like timorous accent and dire yell. 
As when, by night and negligence, the fire 
Is spied in populous cities." (Act I, Scene I.) 

Speaking of how she acquired Desdemona's handkerchief, 
Emilia tells lago, in Othello: "She let it drop by negligence; 
And, to the advantage, I, being here, took't up." (Act III, 
Scene III.) 

In the CXVII' Sonnet, the Poet speaks thus of wilfullness and 
error: 

"Book both my wilfullness and errors down. 
And on just proof surmise accumulate." (9, 10.) 



THE LAW IN SHAKESPEARE. 179 

Sec. 138. Prisoner's fees. — 

"Her. . . . Force me to keep you as a prisoner, 
Not like a guest ; so you shall pay jour fees, 
When you depart, and save your thanks."^ 

These lines unquestionably refer to the practice, not 
generally countenanced by the courts, on the part of 
jailers and such officers, of exacting fees from discharged 
prisoners, when they were discharged, regardless of their 
guilt or innocence. Of this procedure, in England, Lord 
Campbell says: "It may have been enforced until very 
recently, but could hardly be known to any except law- 
yers, or those who had been in prison, on criminal 
charges."^ 

Thus, the Poet makes Hermione refer to a piece of 
English procedure, not generally known to the laiety, and 
to enforce a longer visit from PoTixenes, she threatens 
him, not only with imprisonment^ but with the fees^ on 
his discharge, that are usually exacted, on the liberafion 
of prisoners. 

Sec. 139. Not guilty.— 

"Pol. . . . Had we pursued that life, 

And our weak spirits ne'er been higher reared. 

With stronger blood, we would have answered heaven, 

Boldly, Not guilty."^ 

"Not guilty," is the plea made by a defendant, in a 
criminal case whenever he desires to place himself upon 



1 Winter's Tale, Act I, Scene II. 

^'Lord Campbell; Rolfe's Winter's Tale, p. 167, notes. 

Discussing this practice, Mr. Reeves, in his History of English 
Law (vol. II, p. 416) observed: "It had been the practice for 
the common fines to be assessed promiscuously by the sheriffs, 
and, as the statute says, by barrators; and upon those who were 
innocent, as well as upon the guilty; all which was transacted 
after the justices were gone. These fines were paid to the 
sheriffs and barrators." (Reeve's History Eng. Law, vol. II, p, 
416.) 

'Winter's Tale, Act I, Scene II. 



180 THE LAW IN SHAKESPEARE. 

trial. Such a plea places upon the prosecution the burden 
of establishing, by competent proof, every fact esseniial 
to constitute the offense charged in the indictment or in- 
formation.^ As this plea raises the general issue, the de- 
fendant can put in evidence, under it, any fact which 
negatives the allegation of the indictment or information, 
as well as all matter of justification or excuse.^ 

Sec. 140. King's prerogative. — 

"Leon. . . . Our prerogative calls not your counsels ; 
But our natural goodness imparts this."^ 

In Civil Law, a prerogative is the privilege or advan- 
tage which one person has over another, as where a per- 
son is invested with some office, he is held to be entitled 
to. all the privileges or prerogatives belonging to that 
office.^ 

The royal prerogative, in English law, was the arbitrary 
power, vested in the King, to do good and not evil.^ Un- 
der the law, the King in such matters as that here consid- 



^ 1 Bishop's Cr. Proc. Sec. 794. 

=^1 Bishop's Cr. Proc. 1Q49; 2 idem. 669. 

Aside from recognizing the correctness by which the issue of 
guilt or innocence is raised, In a legal way, this verse also notes 
that when innocence is based upon a free conscience, the plea 
is entered boldly, without fear of successful overthrow. 

In pleading not guilty to the charge of treason and adultery, 
preferred against her, the good queen, Hermione, said: "Her. 
Since what I am to say, must be but that which contradicts 
my accusation; and the testimony on my part, no other but what 
comes from myself; it shall scarce boot me to say. Not guilty." 
(Winter's Tale, Act III, Scene II.) 

Speaking of Buckingham's trial for treason, in King Henry 
VIII, two gentlemen hold the following conversation: "2 Gent. 
la he found guilty? I Gent. Yes, truly is he and condemn'd upon 
it." (Act II, Scene I.) 

'Winter's Tale, Act II, Scene II. 

" Bouvier's Law Dictfonary. 

= Bacon, Abr.; Chitty. Prerog.; Coke, Litt. 9§. 



THE LAW IN SHAKESPEARE. 181 

ered, did not have to take the counsel of his courtiers, but 
was permitted to follow such promptings as his own con- 
science suggested, hence the truth of the verse, from a 
strictly legal standpoint: "Our prerogative calls not your 
counsels; But our natural goodness imparts this." 

Sec. 141. Child born in prison. — 

"Paul. You need not fear it sir; 

The child was prisoner to the womb; and is, 
By law and process of great nature, thence, 
Freed and enfranchis'd: not a party to 
The anger of the king; nor guilty of, 
If any be, the trespass of the queen."* 

This verse correctly states the common law of England 
as to the protection of an infant, from the punishment its 
mother is compelled to undergo. Lawful prisoners were 
those only who were charged with some crime and as 
an infant of tender years could not commit a crime, it 
could not lawfully be held a prisoner, because of a crime 
committed by the mother.^ 

Speaking of his prerogative, Charles, Dauphin of France, said, 
in 1' Henry VI: 

"Char. . . Shall I, for lucre for the rest unvanquish'd, 
Detract so much from that prerogative. 
As to be call'd but viceroy of the whole?" 

(Act V, Scene IV.) 

In planning for Coriolanus' punishment, Sicinius tells Aedile: 
"iSic. , . if I say fine, cry /ine; if death, cry death; Insisting 
on the old prerogative. And power i'the truth o' the cause." (Act 
III, Scene HI.) 

In King Lear, when accused of her intrigue and crimes with 
Edmund, Goneril does not deny it, but replies: "Say, if I do; the 
laws are mine, not thine; Who shall arraign me for it?" (Act 
V, Scene III.) And as the King or Queen, could, in law, do no 
harm, the question, from a strictly legal standpoint, was proper, 
since no one could accuse the queen, or arraign her for such an 
offense. 

* Winter's Tale, Act II, Scene II. 
»6 Toullier, 82, 83. 



182 THE LAW IN SHAKESPEARE. 

It was the practice, established by the ancient cases in 
the Year Books, on the sentencing of a woman, to always 
ask if she had anything to allege why the execution of the 
sentence ought to be stayed. If she replied that she was 
"quick with child" a jury of matrons Avere summoned to 
try this issue and if they found in the affirmative, the 
sentence was stayed until the birth of the infant.^ But 
a sentence was not stayed for pregnancy, except in cap- 
ital cases and at common law, then only when the woman 
was with ''quick child," as the common law did not regard 
it a crime to destroy a child that had not quickened.- 

Paulina was therefore right and the infant Princess was 
thence, "By law and process of great nature" free'd and 
enfranchis'd," "Nor guilty of, if any be, the trespass of 
the queen." 

'1 Chitty, Cr. Law, 760; 1 Bishop's Cr. Proc. Sec. 1323. 
-3 Inst. 17; 4 Bl. Comm. 395; 1 Hale, P. C. 369. 

And not only was the death of an unborn child that had not 
quickened regarded as no offense at common law, but a second 
pregnancy was held to be no bar to an execution of a pregnant 
woman. 2. Hawk P. C. c. 51, Sec. 10. But by statute, in most of 
the States in the United States, killing an unborn child, before 
it quickens, is held to be a crime and of course this absurd rule 
which denied a second child the benefit of its life because of the 
crime of its mother, would not obtain at the present day. 4 Bl. 
Comm. 395; Chitty, Cr. Law, 760; 1 Bishop, Cr. Proc. Sec. 1323. 

In an early South Carolina case, a plea of pregnancy was urged 
and after a trial of this issue, by a jury of matrons, the execu- 
tion of the prisoner was stayed. State vs. Arden, 1 Bay, 487, 490. 

As reported by the old cases, although according to strict law, 
the pregnancy with child that had not quickened, was no legal 
excuse to the execution of a female prisoner, the fact of a quick 
child was generally found to exist, by the jury of matrons, "be- 
cause the gentleness of their sex generally inclined them" to find 
the affirmative, to prevent the death of the child, in any event. 
2 Hale, P. C. 413. 

It seems strange that it took the medical profession until the 
last century to conclude that unless the (3hild was dead, before 
it quickened, it was alive, but regarded the foetus as dead until 
the motion was felt by the mother. And that until the past few 



THE LAW IN SHAKESPEARE. 183 

Sec. 142. Commitment to jail. — 

^'Paulina. Unless he take the course that you have done, 
Commit me for committing honour, trust it, 
He shall not rule me."^ 

A commitment, in law, is a writ, issued under or by 
virtue of an order or rule of a court or justice, for the 
imprisonment of the prisoner named in the writ" Com- 
mitments are either before conviction, or after trial and 
conviction is had of the offender named in the writ, by 
some court having jurisdiction of his crime.^ 

Paulina, in these lines, plainly gives the King to under- 
stand that she will not be lawfully committed, unless it 
is lawful to do so, as he had done with Hermione, commit 
her to jail for acting honorably. And in this she was 
right, for until lawful trial and conviction, she could not 
be committed.* 

Sec. 143. Arraignment of Hermione. — 

''Offi. Hermione, queen of the worthy Leontes, king of 
Sicilia, thou art here accused and arraigned of high 
treason, in committing adultery with Polixenes, king 
of Bohemia; and conspiring with Camillo, to take 
away the life of our sovereign lord the king, thy 
royal husband; the pretence whereof, being by cir- 
cumstances partly laid open, thou, Hermione con- 
trary to the faith and allegiance of a true subject, 
did'st counsel and aid them, for their better safety, 
to fly away by night. "^ 

While sufficient for the purposes of the Poet, to impress 
the laity with the solemnity of a criminal charge against 

years the legal profession held to this absurd idea and permitted 
the death of unquick children, without punishing the party re- 
sponsible for such murder. Bishop, Stat. Crimes, Sees. 744-746; 
1 Hale, 433; Sherwood's Cr. Law, 13. 

* Winter's Tale, Act IL Scene III. 

* Bouvier's Law Dictionary. 
' Sherwood's Criminal Law. 

* II Reeve's History Eng. Law, p. 418. 
= Winter's Tale, Act III, Scene II. 



184 THE LAW IN SHAKESPEARE. 

the poor queen, this charge, of course, lacks all the essen- 
tials of a valid legal charge or indictment against Iler- 
mione. Indeed, the words, "arraigned," "adultery" and 
"treason," with the conclusion of the charge, "contrary," 
etc., are the only legal forms adopted in this entire 
charge. 

It is always essential, in a criminal charge, to frame the 
offense charged with sufficient definiteness and descrip- 
tion of the crime, with a statement of the facts by which 
it was committed, as to thoroughly identify the accusa- 
tion, and the time and place of the commission of the 
crime, and after setting forth these essentials, there are 
certain terms of art used, which are adopted in most in- 
dictments.^ The commencement and conclusion of this 
charge, however, is similar to that followed in formal 
criminal charges, and the use of the legal term "arraign," 
is likewise proper, for in all criminal cases, the accused is 
called before the bar of the court, in his or her proper 
name; the charge is read and the plea of guilty or "not 
o-uilty," is taken and this, in law, is called the "arraign- 
ment."2 

Sec. 144. Surmises, not proof of guilt. — 

"Rer. . . . No, life, I prize it not a straw: 
But for mine honour, (which I would free) 
If I shall be condemned, upon surmises, 
All proofs sleeping else, but what your jealousies 

awake, 
I tell you, 'tis rigour and not law."^ 

Legal evidence consists of those facts within the knowl- 
edge of the witnesses called, legally submitted, upon the 
issues in dispute, as distinguished from all comments, 

■'Bacon, Abr., Indictment, (Gl) ; 1 Chitty, Cr. Law, 217, 224; 
297. 

"Archbold, Cr. PI. (14th ed.) 129; 1 Leach, Cr. Cas, (4th ed/ 
102; Carrington, Cr. Law, 57; 6 Cox, Cr. Cas. 386. 

== Winter's Tale, Act III, Scene II. 



THE LAW IN SHAKESPEARE. 185 

arguments or "surmises" as to facts not within the knowl- 
edge of the witnesses who testifj^ in the given cause. ^ 
Hearsay, or "surmises," not of what the witness knows 
himself, but what he has heard from others, is never ad- 
mitted in controversies in a legally constituted court, 
where any attention is paid to the rules of evidence.^ 

Hence, Hermione w^as entitled to demand direct and 
primary evidence of her guilt, instead of such incom- 
petent evidence and she but proclaimed the law when 
she said: "If I shall be condemned, upon surmises, all 
proofs sleeping else," ... "I tell you, 'tis rigour 
and not law." 

Sec. 145. Indictment. — 

"Leon. Read the indictment."^ 

An indictment is a written accusation against one or 
more persons, of a crime or misdemeanor, presented to and 
preferred upon the oath or affirmation of a grand jury, 
legally convoked.* The terms is used here as a synonym 
for information, which is a charge of crime, preferred 
by a public prosecutor, as distinguished from such a 
charge, preferred by a grand jury, regularly impanelled 
and sworn.^ 

An accusation made by the crown and found to be 
true by a grand jury, furnished the basis for a regular 
indictment,® but all the essentials of the offense, with 
such certainty as to inform the accused of the nature 
and cause of the accusation, were required to be set forth 
in such a formal charge.'^ 

The reading of the indictment, in practice, to the de- 



*1 Greenl. Evidence, ch. 1; 1 Starkie, Evid., part 1, sec. 1. 
= 1 Starkie, Evid., pt. 1, p. 44; 1 Pliillipps, Evld. 185. 
'Winter's Tale, Act III, Scene II. 
* Bacon, Abr., 4 Bl. Comm. 299; Coke, Litt. 126. 
M Bl. Comm. 308. 

"1 Chitty, Cr. Law, 168; Comyns, Dig.; Bacon, Abr., Indictment. 
''Bacon, Abr., Indictment, (G2); Hawkins, PI. Cr. b. 2, c. 25, 
sec. 71. 



186 THE LAW IN SHAKESPEARE. 

fendant, is a part of the formal arraignment of the pris- 
oner, hence it is customary, as the Poet had the king 
order, in this trial, to "read the indictment."^ 

Sec. 146. Torture by boiling in oil. — 

"Paul. What studied torments, tyrant, hast for me? 
What wheels ? racks ? fires ? What flaying ? boiling. 
In leads, or oils? what old, or newer torture 
Must I receive; whose every word deserves 
To taste of thy most worst?"- 

This reference is clearly to a unique and barbarous 
statute of the time of Henry VIII,^ inspired by the 
crime of one Richard Roose, of whose crime and the 
statute that it caused to be enacted, Reeves observes: 
"Having put some poison into a vessel of yeast, in the 
Bishop of Rochester's kitchen, by means of which seven- 
teen persons in the bishop's family and several others 
were poisoned, this very heinous offence raised a kind of 
indignation in the legislature ; and it was declared by that 
act, that the said poisoning should be adjudged high 
treason, and that Richard Roose should be attainted ac- 
cordingly, by authority of parliament and should be 
boiled to death; and, as if none would commit this of- 
fence but such as were of the same employment with the 
present offender, it was enacted, not only that henceforth 
every willful murder by poisoning should be high treason, 
but that such offenders should all be boiled to death."* 



U Bl. Comm. 33; Archbold, Cr. PI. 128. 

FalstafE is made to say to Hostess Quickley, in 2' Henry IV 
(Act II, Scene IV) : "Fal. Marry, there is another indictment 
upon thee, for suffering flesh to be eathen in thy house, con- 
trary to the law; for the which, I think, thou wilt howl." 

In King Richard III, the Scrivener is made to say: "Scriv. 
Here is the indictment of the good lord Hastings." (Act III, 
Scene V.) 

"Winter's Tale, Act III, Scene II. 

3 22 Henry VIII, c. 9. 

*IV Reeve's History Bng. Law, p. 427. 



THE LAW IN SHAKESPEARE. 187 

Sec. 147. Lawyer's points. — 

"Serv. He hath ribands of all the colours i'the rainbow; 
points, more than all the lawyers in Bohemia can 
learnedly handle, though they come to him by the 
gross. "^ 

The ''points," in a lawsuit are the legal propositions or 
questions, arising in the trial of a case.^ It is very gen- 
erally held to be the duty of the Judge to give an opinion 
on all the "points" of law brought to his attention, by 
counsel, in th^e trial of a lawsuit, although the opinion 
on some may be reserved, for investigation, until after the 
trial of the cause. ^ In the printing and submission of 
briefs, and written arg-uments, it is customary to submit 
first, "the points," then the authorities to sustain the dif- 
ferent propositions urged and diligent counsel are apt to 
urge all the "points" that either directly or collaterally 
pertain to the rights of their clients. 

Sec. 148. Arrested in the act, or, "taken with the man- 
ner. ' ' — 

"Clown. Your worship had like to have given us one, if 
you had not taken yourself with the manner."^ 

The Clown here refers to the old legal expression of be- 
ing arrested in the act, caught with the stolen article in 
the thief's possession, or "taken with the manner." 
Speaking of crimes in which the criminal was "taken with 
the manner," Bracton and Britton said that in such cases 
the crime was factum manifestum,^ and Lord Coke com- 
menting upon this observation said that the criminal was 
not be admitted to bail.^ 



'Winter's Tale, Act IV, Scene III. 
^ Bouvier's Law Dictionary. 
'Bouvier's Law Dictionary. 
* Winter's Tale, Act IV, Scene IV. 
■•Bracton, lib. iii, fol. 12; Britton, fol. 22. 
" Coke, 2 Inst. 189. And see also II Reeve's History Eng. Law, 
p. 418. 



188 THE LAW IN SHAKESPEARE. 

Sec. 149. Witchcraft and practice of magical arts. — 

"Paul. It is requir'd 

You do awake your faith. Then all stand still; 
Or those who think it is unlawful business 
I am about, let them depart."^ 

As observed by Doctor Rolfe,^ this reference is clearly to 
the statutes against witchcraft and the practice of magical 
arts, passed during the reign of Elizabeth and at other 
times in England. 

It was enacted by 5' Elizabeth, c. 16, that anyone guilty 
of practicing witchcraft, or enchantments, or using or 
practicing any invocation or conjuration of tevil and 
wicked spirits, charm or sorcery, whereby anyone shall 
happen to be killed or destroyed, or wasted, consumed, 
or lamed, in body or member, it shall be felony without 
clergy, and such offender shall be imprisoned for a year 
and stand in the pillory once a quarter, for that time, 
for six hours.^ 



* Winter's Tale, Act V, Scene III. 
='Rolfe's Winter's Tale, p. 264, notes. 
'V Reeve's History Eng. Law, p. 349. 

The belief in witchcraft, which crystallized into different 
statutes, during the lifetime of the Poet, was so general that 
Shakespeare has many references to it. In Pericles, Prince of 
Tyre, Simonides is made to say to the Prince: "Thou hast be- 
witch'd my daughter and thou art a villain." (Act II, Scene V.) 

During the reign of William and Mary, in 1692, one Bridgett 
Bishop was executed for witchcraft, and following is copy of the 
warrant and of the return by the Sheriff of Salem, Massachusetts: 

"To George Corwin Gent'n, High Sheriffe of the County of Essex 
Greeting 

WHEREAS Bridgett Bishop al's Olhver, the wife of Edward 
Bishop of Salem in the County of Essex Lawyer at a speciall 
Court of Oyer and Terminer held at Salem the second Day of 
this instant month of June for the Countyes of Essex Middlesex 
and Suffolk before William Stoughton Esqe. and his associates 
of the said Court was Indicted and arraigned upon five several 
Indictments for using practising and exerclseing on the * * * 



THE LAW IN SHAKESPEARE. 189 

last past and divers other dayes and times the felonies of "Witch- 
craft in and upon the bodyes of Abigail Williams, Ann Putt- 
nam * * * Mercy Lewis, Mary Walcott and Elizabeth Hub- 
bard of Salem Village * * * single women; whereby their 
bodyes were hurt, aflaicted, pined consumed and tormented con- 
trary to the forme of the statute in that case made and pro- 
vided. To which Indictm'ts the said Bridgett Bishop pleaded 
not guilty and for Tryall thereof put herselfe upon God and her 
Country whereupon she was found guilty of the Felonyes and 
Witchcrafts whereof she stood indicted and sentence of Death 
accordingly passed ag't her as the Law directs. Execution 
whereof yet remaines to be done. These are therefore in the 
names of their maj'ties William and Mary now King and Queen 
over England &c. to will and comand you That upon Fryday 
next being the Tenth Day of this instant month of June between 
the hours of eight and twelve in the afornoon of the same day 
you safely conduct the s'd Bridgett Bishop al's Olliver from 
their maj'ties Gaol in Salem afores'd to the place of execution 
and there cause her to be hanged by the neck until she be 
dead and of your doings herein make returne to the clerk of the 
s'd Court and of this pr'cept. And hereof you are not to faile 
at your peril. And this shall be your sufficient warrant Given 
under my hand & seal at Boston the eighth of June in the 
fourth year of the reigne of our Sovereign Lords William and 
Mary now King and Queen over England &c., Annoq'e Dom. 1692. 

Wm. Stoughton." 
"June 10th, 1692. 

According to the within written precept I have taken the body 
of the within named Brigett Bishop out of their majesties goal 
in Salem and safely conveighd her to the place provided for her 
execution and caused y sd Brigett to be hanged by the neck untill 
she was dead all which was according to the time within 
required and so I make returne by me. 

Geokge Coewin, 

Sheriff." 

(See "Comment," a Legal Publication, by West Pub. Co., for 
May, 1910, p. 229, for fac-simile of original warrant and return.) 



CHAPTER XIV. 

"COMEDY OP ERRORS." 

Sec. 150. Earnest to bind bargain. 

151. Attachment. 

152. Arrest. 

153. Breach of Promise. 

154. Arrest upon mesne process — Debtor's dungeon. 

155. Action "on the case." 

156. Subornation. 

157. Prisoner. 

Sec. 150. Earnest to bind bargain. — 

"Dromio of S. Hold, sir, for God's sake: now your jest 
is earnest. 
Upon what bargain do you give it me?"^ 

Earnest, or Aries, as it is called, in Scotland, from the 
civil law word arrhae, is a small sum of money which is 
given in proof of the existence of the mutual consent, 
necessary to constitute a binding contract." It is not 
the earnest which makes the contract degal, but the 
mutual consent, evidenced by the earnest, which is the 
basis of the bargain. The earnest is only some evidence 
of the legality of the contract and it may be preserved 
by an instrument of writing, or other evidence, in case 
the earnest is dispensed with. The original view of 
earnest, by the common law of England, was that it was 
a small portion of the price, in token of the conclusion 
of the contract,^ and this view seems to prevail to the pres- 
ent day, so that the earnest paid is entitled to be credited 
on the contract price, as a part payment, however small 
it may have been.* 



* Comedy of Errors, Act II, Scene II. 
^Lawson, Contracts (3d ed.) 

'Coke, Inst., b. iii, tit. iil, s. 5; Story, on Sales, p. 216. 

* Ante idem. 

(190) 



THE LAW IN SHAKESPEARE. 191 

Sec. 151. Attachment. — 

"il/er. You know, since Pentacost, the sum is due, 
And since I have not much importun'd you; 
Nor now I had not, but that I am bound 
To Persia, and want guilders for my voyage; 
Therefore, make present satisfaction. 
Or I'll attach you by this officer."^ 

To attach is to take into the custody of the law the 
person or property of one already before the court, or of 
one it is sought to bring before the court. The writ is 
in the nature of a criminal process and issues from a 
court of record to a Sheriff or other officer commanding 
him to bring the person named in the Avrit before the 
court.^ 

Of course at the time of Shakespeare, in England, the 
law permitted the creditor to obtain a writ for the im- 
prisonment of his insolvent debtor^ and this law con- 
tinued in effect in the United States, until the different 
states abolished same by special statutes and organic law.* 

In Two Gentlemen of Verona, the following occurs: 
"Speed. No believing you, indeed sir. But did you perceive her 

earnest? 
Valentine. She gave me none, except an angry word." 

(Act II, Scene I.) 
Lear is made to say, to Kent, in King Lear: 
"Now, my friendly knave, I thank thee. 
There's earnest of thy service." (Act I, Scene IV.) 

Boult is made to say, in Pericles, Prince of Tyre: "Master, I 
have gone through, for this piece, you see. If you like her, so; 
if not, I have lost my earnest." (Act IV, Scene II.) 

* Comedy of Errors, Act IV, Scene I. 

=^3 Bl. Comm. 280; 4 idem. 283; Strange, 441. 

' It has been claimed that prior to the statute of Hen. Ill, the 
debtor could not be arrested at common law, for failure to dis- 
charge his debt (Sir Wm. Herbert's case, 3 Co. 11; Palgrave's 
Rise and Prog, of Eng. Com., book 1, p. 181), but this is denied 
by Bracton and Reeves. Bracton, 440, 441; II Reeve's Hist. Eng. 
Law, pp. 439. 440. 

* Imprisonment for debt, was abolished by statute in N. Y. 
Apr. 26th, 1831; in Massachusetts, in 1834; in Pennsylvania, 
19"^^: in Mississippi, in 1839, and in Tennessee, in 1840. 



192 THE LAW IN SHAKESPEARE. 

Hence, at the time this play was written, it was within 
the power of a merchant to arrest his debtor, for a failure 
to satisfy a debt, admitted to be due and the attachment 
by an officer was the legal process adopted for the pur- 
pose.^ 

Sec. 152. Arrest. — 

"Ang. Here is thy fee; arrest him officer; 

I would not spare my brother in this case, 

If he should scorn me so apparently. 
Off. I do arrest you, sir; you hear the suit."^ 

To make an arrest is to deprive a person of his liberty, 
by legal authority; to seize him and detain him in the 
custody of the law.^ At the time this play was written 

*2 Kent's Comm. (12th ed.) 397. 

In Comedy of Errors (Act IV, Scene I) Angelo said to 
Antipholus: "A7ig. This touches me in reputation: Either con- 
sent to pay this sum for me, or I attach you by this officer." 

And Antipholus said to the Officer: "Ant. That I should be 
attached in Ephesus: I tell you, 'twill sound harshly in her 
ears." (Comedy of Errors, Act IV, Scene IV.) 

In King Richard II, York said to Bolingbroke: 
"York. . . But, if I could, by him that gave me life, 
I would attach you all and make you stoop 
Unto the sovereign mercy of the king." (Act II, Scene II.) 

Sefore arresting Buckingham, in King Henry VIII, Brandon 
said: "-Bran. Here is a warrant from the king to attach Lord 
Montacute." (Act I, Scene I.) 

Sicinius attempts to arrest Coriolanus, with this language: 
"Sic. Go, call the people; (Exit Brutus.) in whose name, 
myself, attach thee, as a traitrous innovator, a foe to the public 
weal." (Act III, Scene I.) 

Paris tells Romeo, on attempting his arrest for despoiling the 
grave of the Capulets: 

"I do defy thy conjurations. 
And do attach thee as a felon here." (Act V, Scene III.) 
The Watch, in Romeo and Juliet, gives direction: "Go, some 
of you, Whoe'er you find, attach." (Act V, Scene III.) 

^ Comedy of Errors, Act IV, Scene I. 
^ Bouvier's Law Dictionary. 



THE LAW IN SHAKESPEARE. 193 

it was one of the remedies furnished the creditor, against 
his debtor, whereby his person was taken and held as 
security for the payment of the debt duc.^ 

Arrest and attachment are used interchangeably, but in 
strictness an arrest is the act resulting from the service of 
an attachment, and while an attachment applies as well to 
the taking of property, an arrest is used only in speaking 
of the seizure of persons.^ 

Sec. 153. Breach of promise. — 

"Ant. E. Good lord, you use this dalliance to excuse, 
Your breach of promise to the Porcupine."^ 

'Reeve's History. Eng. Law, pp. 439, 440; Bracton, 440. 
^ Bouvier's Law Dictionary. 

The Merchant directs the officer to arrest Angelo, in Comedy 
of Errors, as follows: "Mer. Well, officer, arrest him, at my 
suit. Off. I do; and charge you, in the Duke's name, to obey 
me." (Act IV, Scene I.) 

Westmoreland arrests Archbishop of York, Hastings and Mow- 
bray, in 2' Henry IV, (Act IV, Scene II) with this speech: "West. 
Good tidings, my lord Hastings; for the which, I do arrest thee, 
traitor, of high treason: And you, lord archbishop — and you, 
lord Mowbray, of capital treason I attach you both." 

The following occurs in the arrest of Falstaff, at the suit 
of the hostess, in 2' Henry IV (Act II, Scene I): "Fang. Snare, 
we must arrest sir John Falstaff. 

Host. Yes, good master Snare; I have entered him and 
all." 

"Fang. Sir John, I arrest you at the suit of mistress 
Quickly." 

After denunciation of the traitors, in King Henry V, they were 
all ordered arrested and v.ere taken into custody as follows: 
"K. Hen. . . Arrest them to the answer of the law and God 
acquit them of their practices. Exe. I arrest thee of high trea- 
son, by the name of Richard, earl of Cambridge. 

I arrest thee of high treason, by the name of Henry, lord 
Scroop of Masham. 

I arrest thee of high treason, by the name of Thomas Grey, 
knight of Northumberland." (Act II, Scene II.) 

^ Comedy of Errors, Act IV, Scene I. 



194 THE LAW IN SHAKESPEARE. 

A breach of promise is the violation or failure to per- 
form some obligation, engagement or duty, assumed by 
the party so failing.^ The words are not used in this 
verse in their technical legal sense, but rather in the sense 
that a mere engagement upon which no legal action could 
be maintained, was broken. 

Sec. 154. Arrest upon mesne process — Debtor's dun- 
geon. — 

"Dromio of S. No, he's in Tartar limbo, worse than hell. 

A devil in an everlasting garment hath him; 

One whose hard heart is button'd up with steel; 

A fiend, a fairy, pitiless and rough; 

A wolf, nay, worse, a fellow all in buff; 

A back-friend, a shoulder-clapper, one that counter- 
mands 

The passages of alleys, creeks, and narrow lands; 

A hound that runs counter and yet draws dry foot 
well ; 

One that before the judgment carries poor souls to 
hell."^^ 

Dromio means to convey the idea that the arrest has 
been made by an officer, upon mesne process,^ before final 
judgment or trial, and he will be placed in a debtor's 
dungeon, which was meant by the cant term, "hell."* 
By the terms '^back-friend" and "shoulder-clapper," he 
means an officer who approaches from the rear of the 
person arrested,^ and places him under arrest by clapping 
his hand upon his shoulder and. so advising him. This 
is the usual manner of making an arrest and the person is 
just as much deprived of his liberty, when so address't, as 

^Comyns Did., C. 45-49. 

' Comedy of Errors, Act IV, Scene II. 

' Bouvier's Law Dictionary. 

* There was a place under the Exchequer Chamber, where the 
King's debtors were confined, called "hell" and also a place in 
Wood's street, given this name, as established by certain old 
publications, cited by Doctor Rolfe, in Comedy of Errors, p. 161, 
notes. 

'^Rolfe's Comedy of Errors, p. 161, notes. 



THE LAW IN SHAKESPEARE. 195 

if he had been locked up in prison, for he is denied his 
right of locomotion.^ 

Sec. 155. Action "on the case." — 

"Adriana. Why, man, what is the matter? 
Dromio of S. I do not know the matter; he is 'rested on 
the case."^ 

An action on the case is a cause of action for an injury- 
done by some tort, or wrongful act of the party causing 
the injury, although the injury was not the direct result 
of the wrong intended, as where one negligently leaves an 
obstruction in a street or pass-way and the obstruction 
causes an injury, the injured one could sue in an action 
on the case."^ Of course Dromio gets the legal terms 
mixed, in this instance, for as Antipholus was arrested in 
an action of debt, or on a contract, it was not an "action 
on the case" at all, but for the breach of an obligation 
assumed by a contract or upon an implied assumpsit to 
pay the reasonable value for the chain, which would be 
an entirely different kind of an action, in law.^ 

Sec. 156. Subornation. — 

"Ant. E. Thou hast suborn'd the goldsmith to arrest me."^ 
Suborn is to procure privately or secretly, as where one 
is incited to perform a criminal or bad action, by bribe 
or persuasion.® 

^ Newell on Mai. Pros, and False Arrest. 
= Comedy of Errors, Act IV, Scene II. 
' Cooley's Torts. 
*Lawson's Contracts (3d ed.). 

Speaking of the action of trespass upon the case, during the 
reigns of Henry VI and Edward IV, Reeves observes, in his 
History of English Law: "The action most favored was that of 
trespass upon the case, which, during these two reigns, expended 
itself in a manner that made it applicable to numberless cases 
for which the common law had not before provided any rem- 
edy." Ill Reeve's History Eng. Law, p. 559. 

''Comedy of Errors, Avt IV, Scene IV. 

*Bouvier's Law Dictionary. 



196 THE LAW IN SHAKESPEARE. 

In law, when one is procured to take a false oath, he is 
said to have been "suborned" to commit perjury and the 
one who so procures him to falsely testify is said to be 
guilty of subornation of perjury.^ 

^2 Chitty, Cr. Law, 317. 

In Macbeth, Macduff is made to say: "They were suborn'd; 
Malcolm and Donalbain, the king's two sons, 
Are stolen away and fled; which puts upon them 
Suspicion of the deed." (Macbeth, Act II, Scene IV.) 

In 1' Henry IV, Hotspur is made to say, to Northumberland: 
"Hot. But shall it be that you, — that set the crown upon the 
head of this forgetful man; and, for his sake, wear the detested 
blot of murd'rous subornation." (Act I, Scene III.) 

In 2' Henry IV (Act IV, Scene I) Westmoreland thus addresses 
the archbishop of York: 

"West. When ever was your appeal denied? 
Wherein have you been gall'd by the king? 
What peer hath been suborn'd to grate on you?" 
The Poet makes Joan of Arc say to the Shepard, in 1' Henry VI : 
"Puc. Peasant avaunt; you have suborn'd this man. 

Of purpose to obscure my noble birth." (Act V, Scene IV.) 
Suffolk thus pleads against the good Gloster, in 2' Henry VI: 
"Suff. . . Hath he not twit our sovereign lady here, With 
ignominious words, though clerkly couched. As if she had 
suborned some to swear, false accusations to o'erthrow his state." 
(Act III, Scene I.) 

Gloster tells King Henry VI: "Glo. . . Foul subornation 
is predominant and equity exil'd your highness' land." (2' Henry 
VI, Act III, Scene I.) 

Attempting to make Gloster responsible for the treason of his 
wife, Suffolk, in 2' Henry VI, said: "Suff. . . The duchess, 
by his subornation, upon my life, began her devilish practices." 
(Act III, Scene I.) 

Tyrell, in King Richard III, refers to Dlghton and Forrest, 
"Whom I did suborn to do this piece of ruthless butchery." 
(Act IV, Scene III.) 

In speaking of her husband, Othello, to Emilia, Desdemona is 
made to say: 
"Des. Beshrew me much, Emilia, 

I was, (unhandsome warrior as I am,) 
Arraigning his unkindness with my soul; 
But now, I find, I had suborn'd the witness. 
And he's indited falsely." (Act III, Scene IV.) 



THE LAW IN SHAKESPEARE. 197 

Sec. 157. Prisoner. — 

'^0§. He is my prisoner; if I let him go, 

The debt he owes will be required of me."^ 

A prisoner is one held in confinement against his will.^ 
Lawful prisoners are those charged with crime, or a civil 
liability.^ The prisoner in this instance was of the latter 
kind and being arrested on original process he was entitled 
to his liberty, only on proper bail being provided for the 
payment of the debt and if the officer granted him his 
freedom, it would be upon this condition, with himself 
as suretv for the debt.* 



The wronged Lucrece complains at Opportunity: 
"Guilty thou art of murder and of theft. 
Guilty of perjury and subornation. 
Guilty of treason, forgery and shift. 
Guilty of incest, that abomination; 
An accessory by thine inclination 
To all sins past and all that are to come. 
From the creation to the general doom." (918, 924.) 
Defying Time and Jealousy, the Poet tells his friend, in the 
CXXV Sonnet: 

"Hence, thou suborn'd informer: a true soul 
When most impeach'd stands least in thy control." (13, 14.) 

* Comedy of Errors, Act IV, Scene IV. 

*Bouvier's Law Dictionary. 

•6 Toullier, 82. 

*1 Salk. 402; II Reeve's History Eng. Law, 439, 440. 

After his arrest, on the attempt to over-power him, Antipholus 
said to the Officer: "Ant. What, will you murder me? Thou 
gaoler, thou, I am thy prisoner; wilt thou suffer them to make a 
rescue? Off. Masters, let him go; He is my prisoner and you 
shall not have him." (Comedy of Errors, Act IV, Scene IV.) 

In 1' Henry IV, King Henry thus addressed Hotspur: "E. 
Hen. . . Send me your prisoners, with the speediest means, 
or you shall hear in such a kind from me, as will displease you." 
(Act I, Scene III.) 



CHAPTER XV. 

"MACBETH." 

Sec. 158. Estate. 

159. Execution. 

160. Instigation of Macbeth's crime. 

161. Agent. 

162. Trust, from fiduciary relation. 

163. Murder. 

164. Malice. 

165. Copyhold. 

166. Single ownership. 

Sec. 158. Estate. — 

"Dun. And you whose places are the nearest, know, 
We will establish our estate upon 
Our eldest Malcolm, whom we name hereafter, 
The prince of Cumberland."^ 

Estate is the condition and relation which an owner 
bears toward his property of any description.- It particu- 
larly includes inheritances and such properties that can 
"be devised and hence, the king, here, uses the term, as 
embracing his earthly acquisitions, which he devolves 
upon the eldest son, where the law of England placed his 
property rights.^ 

' Macbeth, Act I, Scene IV. 
- Coke, Litt., sees. 345, 650. 
^Bouvier's Law Dictionary, Primogeniture. 

In the more extensive use of the word, it signifies everything 
of which riches may consist — and this is the sense in which it 
is used here — and in the technical sense, it indicates the degree 
or nature of one's ownership in land. 

In As You Like It (Act I, Scene I) Rosalind said: 

"Ros. Well, I will forget the condition of my estate, to rejoice 
in yours." 

Lord Abergavenny, in King Henry VII, speaking of the pageant 

(198) 



THE LAW IN SHAKESPEARE. 199 

Sec. 159. Execution. 

"Dun. Is execution done on Cawdor? Are not those 
in commission yet returned?"^ 

Execution, in law, is putting the sentence of the law 
into force.- A commission was a body of persons author- 
ized to act in some certain manner.^ In the broader sense, 
execution is the accomplishment of a thing; or the com- 
pletion of an undertaking or an instrument. And in 
criminal law, it is the putting of a convict to death, 
agreeable to law, in pursuance of his sentence.* 

that ratified the French treaty, said: "A'ber. I do know kins- 
men of mine, three at least, that have by this so socken'd their 
estates, that never they shall abound as formerly." (Act I, 
Scene I.) 

A stranger says of Timon of Athens, in referring to his finan- 
cial embarrassments: "1 Strang. Now lord Timon's happy 
hours are done and past and his estate shrinks from him." (Act 
III, Scene I.) 

Menenius said to Virgilia, in Coriolanus: "Men. A letter for 
me? It gives me an estate of seven years' health; in which time 
I will make a lip at the physician." (Act II, Scene I.) 

Cleopatra tells Caesar, in Antony and Cleopatra: 
"Cleo. See, Caesar, O, behold. 

How pomp is follow'd; mine will now be yours; 
And, should we shift estates, yours would be mine." 

(Act V, Scene II.) 

In Cymbeline, lachimo said to Posthumus, on making the 
wager: "7ac7i. Would I had put my estate, and my neighbour's, 
on the approbation of what I have spoke." (Act I, Scene V.) 

The King tells Rosencrantz and Guildenstern, in Hamlet, on 
speaking of the dangerous nature of Hamlet's affection: 
"King. . . . The terms of our estate may not endure Hazard 
so near us, as doth hourly grow Out of his lunes." (Act III, 
Scene III.) 

^Macbeth, Act I, Scene IV. 
*3 Bl. Comm. 412. 
'5 Barnew. & C. 850. 
M Bl. Comm. 403. 



200 THE LAW IN SHAKESPEARE. 

Sec. 160. Instigation of Macbeth 's crime. — 

"Mach. My dearest love, Duncan comes here to-night. 

Lady M. And when goes hence? 

Macb. To-morrow — as he purposes. 

Lady M. O, never shall sun, that morrow see: 
Your face, my thane, is as a book, where men 
May read strange matters: — To beguile the time. 
Look like the time ; bear welcome in your eye, 
Your hand, your tongue: look like the innocent 

flower, 
But be the serpent under it. He that's coming 
Must be provided for: and you shall put 
This night's great business into my despatch; 
Which shall to all our nights and days to come 
Give solely sovereign sway and masterdom."^ 

In commenting upon this element in the crime, result- 
ing from the interference and influence of Lady Macbeth, 
upon the doubt and indecision of Macbeth, as evidenced 
by the above verse, August Goll, the Danish criminologist, 
observes: "When two wills have thus been made to flow 
in unison, a phenomenon arises to which the Italian 
criminologists first directed attention : there is thus pro- 
duced not only the sum by addition, not merely the 
quantitatively increased force which the unity gives, but 
also, as a chemical process, an entirely new product, 
qualitatively different from the factors which made it, 
possessing powers and qualities which neither of those 

factors separately possessed Thus, two 

children, neither of whom, to save his life, would dare to 
walk through a long dark passage alone, w^ill venture to 
pass it hand in hand, each encouraging the other by the 
aid of his fear of showing lack of courage. In like man- 
ner two criminals will combine to carry out crimes so 
atrocious that neither of them can quite realize afterwards 
how he came to commit them. Nor, indeed, is it one of 
them singly who commits them, but the co-operative 



^ Macbeth, Act I, Scene V. 



THE LAW IN SHAKESPEARE. 201 

psychic unity in which each of them has merged him- 
self."i 

Sec. 161. Agent. — 

^'Mach. I am settled and bend up each corporal agent 
to this terrible feat."^ 



^ Goll's Criminal Types in Shakespeare, (Mrs. Weeks tr.) pp. 
97-99. 

Discussing Macbeth's acquiescence in the criminal intent of his 
wife, August Goll, in his Criminal Types in Shakespeare, fur- 
ther adverts to the words, spoken in reply to his wife's sugges- 
tion, wherein he said, 

"We will speak further," 
as follows: "Macbeth's freedom of action is vanishing: the 
words are, this time, perfectly in tune with Lady Macbeth's 
guilty speech; it is only his own duplicity which, though badly 
enough, still makes the reservation possible: this must be fur- 
ther discussed; but the reservation is now quite subjective, it 
exists only in Macbeth's own mind; it is there he reserves the 
right to weigh the case once more, .y'rom Lady Macbeth's point 
of view the speech must be understood as a veiled promise. 
The crime is coming into existence." (Goll's Criminal Types in 
Shakespeare, p. 109.) 

And commenting further on this skillful portrayal of the 
instigation of the murder, Goll observes: "Less eminent psychol- 
ogists than Shakespeare would probably have made Lady Mac- 
beth try to refute Macbeth's counter reasons in a logical duel, 
following the complete explanation of them to her. . . Lady 
Macbeth does not need to hear Macbeth's reasons against; she 
knows them all beforehand, because she knows him and is able 
to follow his thoughts, which are all merely deductions from 
his own fundamentally-honest and socially-minded self. That 
is the reason she does not enter into them. She goes behind 
them all, directs her attack straight against this self, tries to 
touch the chord which lies deepest in Macbeth's heart, to make 
it beat in time with her own purpose." (Pages 112, 113.) 

Lady Macbeth's pride and admiration for her husband and her 
desire to see him the ruler of the kingdom, is treated by Magis- 
trate Goll as the all powerful motive which prompts her course 
in the commission of the murder of Duncan. (Goll's Criminal 
Types in Shakespeare, pp. 138-140.) 

^Macbeth, Act I, Scene VII. 



202 THE LAW IN SHAKESPEARE. 

An agent is one who undertakes to perform some given 
act or acts for his principal, under the authority of the 
latter. 1 The term is only used here in a quad legal sense, 
for in limiting the term to corporal agencies, it means 
the hands and other organs of the speaker's body, as dis- 
tinguished from persons in his service. 

Sec. 162. Trust, from fiduciary relation.— 

"Macb. He's here in double trust: 

First, as I am his kinsman and his subject, 
Strong both against the deed; then, as his host, 
Who should against his murderer shut the door, 
Not bear the knife myself."- 

A trust, in law, is an obligation, imposed upon a person, 
arising out of a confidence reposed in him to perform 
some act faithfully and according to such confidence.'' 
The expression here, is strictly in the legal use of the term, 
for Macbeth recognizes the obligation imposed upon him, 
by virtue of the confidence reposed in him by his king. 
In other words, there is a double trust arising, because 
of the fiduciary relation existing, of kinsman and subject, 
and then the entire control and security of his person is 

^ 1 Livermore, Agents, 67. 

Hotspur is made to say, to Northumberland, in 1' Henry IV 
(Act I, Scene IH) : 

"Hot Being the agents or base second means, 

The cords, the ladder, or the hangman, rather." 

After being curs'd by Troilus for Cressida's perfidy, Pandarus, 
says, in Troilus and Cressida: "■Pan. . . O world, world: 
world: thus is the poor agent despis'd: traitors and bawds, how 
earnestly are you set at work, and how ill requited." (Act 
V, Scene XI.) 

In Venus and Adonis, the organs of the body are referred to 
as agents of the will, in the following lines: "But, when his 
glutton eye, so full hath fed. His other agents aim at like 
delight." (399, 400.) 

* Macbeth, Act I, Scene VII. 
M Kent's Comm. 295. 



THE LAW IN SHAKESPEARE. 203 

also entrusted to him, as a host, which would raise the 
obligation, likewise, of seeing to his personal security, 
while the relation of host and guest continued.^ 

Sec. 163. Murder.— 

"Macb. . . . Now witchcraft celebrates 

Pale Hecates sufferings; and wither'd murder, 
Alarm'd by his sentinel, the wolf, 
Whose howl's his watch, thus with his stealthy pace, 
With Tarquin's ravishing strides, towards his design. 
Moves like a ghost. "- 

Murder is the willful killing of a human being, with 
malice aforethought.^ The strongest evidence of malice is 
a lying in wait, or such stealth as that referred to in this 
verse. The idea of the wolf acting as sentinel for the 
murderer, who with stealthy stride glides to his victim, 
like a ghost, presents a realistic picture of the murderer, 
with all the legal essentials of the crime. 

^A "Hospitator," at law, who was a host, or entertainer, was 
bound to look after the security of his guest, so the Poet but 
expresses, in this "double trust," the law as it then existed. 

- Macbeth, Act II, Scene I. 

'1 Russell, Crimes, 421; Coke, 3' Inst., 47. 

In this same play, the Poet has Macbeth also soliloquize: 
"Methought I heard a voice cry, sleep no more: Macbeth does 
murder sleep, the innocent sleep," etc. (Macbeth, Act II, 
Scene II.) 

And again, he said: "Most sacrilegious murder hath broke 
ope the Lord's annointed temple, and stole hence the life o' the 
building." (Macbeth, Act II, Scene III.) 

And while at the banquet, Macbeth suddenly exclaims: 
"Blood hath been shed ere now, i'the olden time. 
Ere human statute purg'd the gentle weal; 
Aye, and since too, murders have been perform'd 
Too terrible for the ear: the times have been 
That, when the brains were out, the man would die. 
And there an end; but now, they rise again. 
With twenty mortal murders on their crowns. 
And push us from our stools: This is more strange 
Than such a murder is." (Macbeth, Act III, Scene IV.) 



204 THE LAW IN SHAKESPEARE. 

Macbeth and Lady Macbeth, are discussed by August GoU, as 
belonging to a type of political criminals, different in ambitions 
and motives from that of Brutus, but interesting and true types 
in themselves. With other criminal types presented in the 
plays, this scientist takes Shakespeare's criminals as true repre- 
sentatives of the different classes considered. Of course Mac- 
beth's murderous purpose is first suggested by the witches, but 
after this it needs no encouragement, though the poison of his 
meditated guilt, at times causes him some misgivings and falter- 
ings; his ambition and thirst for power launches him upon the 
career of crime and these, with the affection for his wife, which 
also appeals to him in this line, overcame all conscientious 
scruples and moral reflections. Each murder, however, so works 
upon his conscience that his remorse is finally most piteous and 
the character is truly portrayed, throughout, of the political 
criminal, with such skill that in modern times the character is 
selected for the student of "criminal types," as furnishing a 
much better study and one truer to life than the criminals met 
with in confinement, or their mendacious reports of their crimes 
and criminal instincts, or those of other writers or students of 
the subject. (Goll's Criminal Types in Shakespeare, p. 78.) 

In King Richard II, the Duchess of Gloster said to Gaunt (Act 
I, Scene II) : 

"Duch. ... In suffering thus thy brother to be slaughter'd, 
Thou show'st a naked pathway to thy life, 
Teaching stern murder how to butcher thee." 
Douglas replied to Hotspur, in 1' Henry IV: "Doug. Now, 
by my sword, I will kill all his coats; I'll murder all his ward- 
robe, piece by piece, until I meet the king." (Act V, Scene III.) 
Warwick thus speaks to Gloster and the bishop of Winchester, 
in 1' Henry VI: "War. You see what mischief and what mur- 
der too, hath been enacted through your enmity." (Act III, 
Scene I.) 

Replying to his accusers, Gloster, in 2' Henry VI, is made to say: 
"Olo. . . Unless it were a bloody murderer, 

Or foul felonious thief that fleec'd poor passengers, 
I never gave them condign punishment: 
Murder, indeed, that bloody sin, I tortur'd 
Above the felon, or what trespass else." (Act III, Scene I.) 
King Henry abjures the duke of Suffolk after Gloster's death, 
in 2' Henry VI: 

"K. Hen. . . Upon thy eyeballs, murderous tyranny. 
Sits in grim majesty, to fright the world." 

(Act III, Scene II.) 



THE LAW IN SHAKESPEARE. 205 

Sec. 164 Malice. — 

"Ban. . . . Fears and scruples shake us: 

In the great hand of God I stand; and, thence, 
Against the undivulg'd pretence I fight 
Of treasonous maUce."^ 

Malice is the doing of a wrongful or illegal act, inten- 
tionally, without just cause or excuse." Malice is not, 
necessarily, confined, to the specific intention of doing 
an injury to a particular person but it extends to an evil 
design and wicked notion against someone at the time 
of committing the crime.^ Hence, Banquo fights against 
the "undivulg'd pretence of treasonous malice," meaning 
that the design is to get rid of all who stand in the way 
of the ambitions of Macbeth, and against this evil inten- 
tion, he, as but one of the objectionable objects of his 
malice, must fight. 

Suffolk resents the charge of murdering Gloster, in 2' Henry 

VI, as follows: 

"^tiff. . Why, Warwick, who should do the duke to death. 
Myself, and Beaufort, had him in protection; 
And we, I hope sir, are no murderers." (Act III, Scene II.) 
Warwick thus upbraids Suffolk, in 2' Henry VI: 

"War. But that the guilt of murder bucklers thee, 
And I should rob the deathsman of his fee. 
Quitting thee thereby of ten thousand shames. 
And that my sovereign's presence makes me mild, 
I would, false murderous coward, on thy knee. 
Make thee beg pardon for thy passed speech. 
And say, it was thy mother that thou meant'st,/ 
That thou thyself wast born in bastardy: 
And, after all this fearful homage done, 
Give thee thy hire and send thy soul to hell." 

(Act III, Scene II.) 
Queen Margaret, on the death of her son, in 3' Henry VI, said: 

"Q. Mar. What's worse than murder, that I may name it?" 

(Act V, Scene V.) 

'Macbeth, Act II, Scene III. 
= 1 Chitty, Criminal Law, 242. 
' Bacon, Max. Reg. 15. 



206 THE LAW IN shap:espeare. 

In King Richard II, the following occurs between King Rich- 
ard and the Duke of Lancaster: 

"iL. Rich. Tell me, moreover, hast thou sounded him. 
If he appeal the duke on ancient malice; 
Or worthily, as good a subject should. 
On some known ground of treachery in him? 
Gaunt. As near as I could sift him on that argument, 
On some apparent danger seen in him, 
Aim'd at your highness; no inveterate malice." (Act I, Scene I.) 

In 2' Henry IV, Falstaff replies to the Chief Justice: "Fal. . . 
all the other gifts appertinent to man, as the malice of this age 
shapes them, are not worth a gooseberry." (Act I, Scene II.) 

Warwick, in 1' Henry VI, said of the Bishop of Winchester: 
"War. An uproar, I dare warrant, begun through malice of the 
bishop's men." (Act III, Scene I.) 

King Henry VI, thus upbraids the Bishop of Winchester, for 
refusing the olive branch of peace offered by Gloster: "K. Hen. 
Fie, uncle Beaufort, I have heard you preach that malice was 
a great and grievous sin." (Act III, Scene I.) 

Gloster tells the Bishop of Winchester, in 1' Henry VI: 
"Glo. . . Besides, I fear me, if thy thoughts were sifted. 
The king, thy soverign, is not quite exempt. 
From envious malice of thy swelling heart." 

(Act III, Scene I.) 

Speaking of the Cardinal, in 2' Henry VI, Gloster said: "Glo. 
. . Churchman so hot? good uncle hide such malice; with 
such holiness can you do it." (Act II, Scene I.) 

Gloster, after his arrest, tells the king, in 2' Henry VI: 
"Glo. . . Beaufort's red sparkling eyes blab his heart's malice. 
And Suffolk's cloudy brow, his stormy hate." (Act III, Scene I.) 

The wicked Margaret is made to say, in 2' Henry VI, referring 
to the trial of Gloster, whom she had conspired to have mur- 
dered: "Q, Ma7'. God forbid any malice should prevail, that fault- 
less should condemn a nobleman." (Act IV, Scene III.) 

Edward tells Warwick, in 3' Henry VI: "K. Edw. Though 
fortune's malice overthrows my state. My mind exceeds the com- 
pass of her wheel." (Act IV, Scene III.) 

Replying to the request of the Dukes of Norfolk and Suffolk 
to deliver himself to their custody, Cardinal Wolsey said, in 
Henry VIII: "WoZ. Till I find more than a will, or words, to do it, 
(I mean, your malice,) I know, officious lords, I dare and must 
deny it. Now I feel of what coarse metal ye are molded, — envy. 

Followyour envious courses, men of malice." (Act III, Scene IL) 



THE LAW IN SHAKESPEARE. 207 

Sec. 165. Copyhold. — 

"Macb. 0, full of scorpions is my mind, dear wife : 

Thou know'st that Banquo and his Fleance lives. 
Lady 31. But in them nature's copy's not eterne."^ 

This has reference to the common law copyhold estate 
or tenure. That is, the copy, or lease by which they 
hold their lives, by nature, has its certain time of termina- 
tion and is not to be eternal. 

A copyhold estate was originally an estate at the will 
of the lord of the manor, agreeable to custom, evidenced 
by entries on the roll of the courts baron.- The tenure of 
the tenant of such an estate was by copy of court roll, 
hence the term, copyholder.^ 

Sec. 166. Single ownership. — 

"Macd. What concern they? 

The general cause? or is it a fee-grief, 
Due to some single breast."* 

Fee, is used in the sense of ownership, and is meant 
to convey the idea of a several or single right or owner- 
ship rather than such ownership in common. A grief due 
to the commission of some public calamity would be one 
w^hich affected the public or general weal, as distinguished 
from that of an individual's welfare, hence the distinction 
noted, in Macduff's question. 

Cranmer, in King Henry VIII, tells his peers: "Cran. . . 
Men, that make Envy, and crooked malice, nourishment, dare 
bite the best." (Act V, Scene II.) 

* Macbeth, Act III, Scene II. 
^2 Bl. Comm. 95. 

'2 Bl. Comm. 95; Tiedeman, R. P. (3'ed.) 19. 23. 

* Macbeth, Act IV, Scene III. 

By reference to Holinshed's and Buchanan's history of Scot- 
land, it will be seen that the Poet, in Macbeth, has adhered 
strictly, in plot and scope of the play to the traditions of history. 
In giving the interview between Malcolm and Macduff, at the 
English Court, the text of the play, in part uses the same 
language as that of history and the conversation is presented in 
the same order. 



CHAPTER XVI. 

"KING JOHN." 

Sec. 167. Controversy— Judgment on. 

168. Descent to eldest son. 

169. Bastard's right to inheritance. 

170. Child begot when father not infra Quatuor maria. 

171. Legitimacy of child born during lawful wedlock. 

172. Testamentary disposition, disinheriting bastard. 

173. Landed 'Squire. 

174. Seduction. 

175. Arbitration. 

176. Usurpation — Denial of rights. 

177. Equity. 

178. Canon of the Law. 

179. Abstract and Brief. 

180. Indenture. 

181. Rape. 

182. Interrogatories. 

183. Tithes— Toll. 

184. Laws' redress of wrongs. 

185. Keeping the Peace. 

186. Source of Sovereign power. 

Sec. 167. Controversy — Judgment on. — 

"Essex. My liege, here is the strangest controversy, 
Come from the country to be judged by you, 
That ere I heard: Shall I produce the men?"^ 

A controversy is any dispute arising between two or 
more persons and the word is frequently used to apply 
to an issue over questions of law, to be submitted to one 
of authority for a decision. The word is not so broad 
as the word case, which applies to suits of a criminal as 
well as a civil nature, so the term is used here in regard 
to an issue over property rights.^ 

^ King John, Act I, Scene I. 
^ Bouvier's Law Dictionary. 

(208) 



THE LAW IN SHAKESPEARE. 209 

Sec. 168. Descent to eldest son. — 

"A'. John. What art thou? 

Rob. The son and heir to that same Faulconbridge. 
K. John. Is that the elder, and art thou the heir? 
You came not of one mother, then, it seems."^ 

The seeming surprise of the king, that the younger son 
should be the heir of the father, if they came from one 
mother, is because of the rule of the English law, which 
devolved the estate of the parent upon the eldest son.- 
This was the rule of primogeniture, which gave the first 
born the estate of the parent.^ 

Sec. 169. Bastard's right of inheritance. — 

''Bast. Most certain of one mother, mighty king, 
That is well known; and, as I think, one father; 
But, for the certain knowledge of that truth, 
I put you o'er to heaven and to my mother ; 
Of that I doubt, as all men's children may. 

Eli. Out on thee, rude man: thou dost shame thy 
mother, 
And wound her honour with this diffidence. 

Bast. I, madam? no, I have no reason for it; 
That is my brother's plea and none of mine; 
The which, if he can prove, 'a pops me out 
At least from fair five hundred pounds a year; 
Heaven guard my mother's honour and my land. 

K. John. A good blunt fellow: — Why, being younger 
born. 
Doth he lay claim to thine inheritance? 

Bast. I know not why, except to get the land. 
But once he slander'd me with bastardy: 
But whe'r I be as true begot, or no. 
That still I lay upon my mother's head; 
But that I am as well begot, my liege, 
(Fair fall the bones that took the pains for me:) 
Compare our faces and be judge yourself. 



* King John, Act I, Scene I. 
'2 Bl. Comm. 214, 215. 



Tiedeman, R. P. (3' ed.) Sec. 474. 



210 THE LAW IN SHAKESPEARE. 

K. John. Sirrah, speak, what doth move you to claim 
your brother's land? 

Bast. Because he hath a half-face, like my father; 
With that half-face, would he have all my land : 
A half-faced groat five hundred pounds a year."^ 

Phillip's reference to the claim of his brother to his 
land, because of his own bastardy, is a recognition of the 
legal basis for his suit. At common law a bastard had 
no inheritable blood.^ He was, in the eye of the law^ 
nullius filius, and was incapable of inheriting, as an heir, 
either to his putative father, or his mother, or to any one 
else, nor could he have heirs, save of his own body.^ 
This rule was supposed to be founded in policy, to dis- 
courage illicit intercourse, but if the rule of law, instead 
of visiting the crime of the parent upon the issue of 
the illicit act, had prevented the mother from inheriting 
from the bastard, it would have better achieved this pur- 
pose, than it did, in permitting her to take of the bastard, 
but denying him, the innocent party, this right, as to her 
land or other property.* 

While a man was held to be a bastard, although born 
during coverture, under circumstances where it was im- 
possible for the husband of his mother to have been his 
father,^ the proof of such a fact had to be of a very strong 
and cogent nature to overcome the presumption of legiti- 
macy, of a child born after lawful wedlock,® hence the 
reference of this issue, by Phillip, to his mother, as the 
most competent witness on this issue, his father being 
dead.' 



^King John, Act I, Scene I. 

"2 Kent's Comm. 210; Coke, Litt, 123b. 

*1 Bl. Comm. 459. 

* Gilbert, Tenures, 20; 4 Kent's Comm. 417. 

"1 Bl. Comm. 458. 

•Gardner, Peerage Case, Le M. Rep; 1 Bl. Comm. 458. 

" The evidence of the mother is not admissable to prove access 
or non-access, it is held, in the United States. 2 Kent's Comm. 
212; 29 Pa. 420; 15 Ga. 160. 



THE LAW IN SHAKESPEARE. 211 

Sec. 170. Child begot when father not infra quatuor 
maria. — 

"Rob. My gracious liege, when that my father liv'd, 
Your brother did employ my father much ; — 

And once, dispatch'd .him in an embassy 

To Germany, there, with the emperor, 

To treat of high affairs, touching that time; 

The advantage of his absence took the king. 

And in the meantime sojourn'd at my father's; 

Where now he did prevail, I shame to speak; 

But truth is truth; large length of seas and shores, 

Between my father and my mother lay 

(As I have heard my father speak himself) 

When this same lusty gentleman was got. 

Upon his death bed he by will bequeath'd 

His lands to me; and took it on his death. 

That this, my mother's son, was none of his; 

And, if he were, he came into the world, 

Full fourteen weeks before the course of time. 

Then, good my liege, let me have what is mine, 

My father's land, as was my father's will."^ 

This verse presents the substance of Robert's claim to 
his brother's land, because of the bastardy of Phillip. 

Edmond is made to say, in King Lear, regarding his inability 
to inherit, as a bastard, from his father: "Let me, if not by birth, 
have lands by wit: All with me's meet, that I can fashion fit." 
(Act I, Scene I.) 

In King Lear, Gloster speaks of his legitimate son, as his heir, 
or son, "by order of law," in the following lines: 

"Glo. But I have, sir, a son by order of law, some year elder 
than this, who yet is no dearer in my account." (Act I, Scene I.) 

Gloster tells Edmund, in King Lear: "Loyal and natural boy, 
I'll work the means to make thee capable," meaning that he will 
remove the legal impediment, because of his bastardy, so he can 
inherit land. (Act II, Scene I.) 

Tarquin taunts the honest Lucrece that after his crime her 
children or issue shall be "blurr'd with nameless bastardy." (521.) 

A bastard did not know his father and hence, could have no 
name, and was known at law as without an inheritance, or 
nullius filius. 

^ King John, Act I, Scene I. 



212 THE LAW IN SHAKESPEARE. 

The embassy of his father is mentioned to bring his case 
within the rule of law, that to establish bastardy ap;ainst 
one born of lawful wedlock, it must be shown that the 
husband of the mother was where he could have had no 
access to her during the period of gestation. From the 
time of the Year Books, until the early part of the last 
century, the issue of a married woman was made legiti- 
mate, except on proof of the impotency of the husband 
or that he was "beyond the four seas," during the period 
of gestation.^ In other words, if the claim had been 
presented by other than hearsay evidence, on Robert's 
part, in establishing that his father was not infra quatuor 
Tnaria, when Phillip was begot, he established a prima 
facia case, at common law, to the land of his father, which 
the bastardy of his brother would have prevented him 
from inheriting.^ 

^Coke, Litt, 244; 1 Bl. Coram. 456, 457. 
-1 Bl. Comm. 455. 

Ever since the case of Pendrell vs. Pendrell, Str. 925, the doc- 
trine of issue born of lawful wedlock, is illegitimate if the hus- 
band was infra quatuor maria, has been exploded, and the fact 
of access or non-access is to be determined like any other fact 
in the case, by competent evidence. See Nicholas, Treatise on 
Law of Adulterine Bastardy, 1836. 

In urging the false accusation of King Edward's bastardy, 
against his own mother, to accomplish the overthrow of the 
children of his dead brother, King Richard III said to Buck- 
ingham: "Glo. . . Tell them, when that my mother went with 
child. 

Of that insatiate Edward, noble York, 
My princely father, then had wars in Prance; 
And, by just computation of the time, 
Found, that the issue was not his begot.,' 

(Act III, Scene V.) 
Richard asks Buckingham, touching his false circulation of 
the bastardy of his dead brother, Edward: "Glo. Touch'd you 
the bastardy of Edward's children?" And Buckingham replies: 
"Buck. . . his own bastardy. As being got, your father then 
in France; And his resemblance, being not like the duke." 
(King Richard III, Act III, Scene VII.) 



THE LAW IN SHAKESPEARE. 213 

Sec. 171. Legitimacy of child born during lawful wed- 
lock. — 

"K. John. Sirraih, your brother is legitimate; 

Your father's wife did, after wedlock, bear him : 
And, if she did play false, the fault was hers; 
Which fault lies on the hazards of all husbands 
That marry wives. Tell me, how, if my brother, 
Who, as you say, took pains to get this son, 
Had of your father claimed this son for his? 
In sooth, good friend, your father might have kept 
This calf, bred from his cow, from all the world; 
In sooth, he might: Then, if he w^ere my brother's, 
My brother might not claim him; nor your father, 
Being none of his, refuse him : This concludes, — 
My mother's son did get your father's heir; 
Your father's heir must have your father's land."^ 

The decision as to the legitimacy of Phillip was strictly 
according to the legal standards existing at the time this 
play was written. The rule of law was formerly very 
strict in favor of the legitimacy of a child born of a 
married woman. While the point was not necessary to 
the decision of the cases and the remarks on this head 
were more or less obiter, it was decided in two early Eng- 
lish cases,^ that there must be non-access established dur- 
ing the whole period of pregnancy, in order to bastardize 
the issue. Rolle, states the law then to be, "By the law 
of the land no man can be a bastard who is born after 
marriage, unless for special matter,"^ and IMr. Justice 
Blackstone, speaking of the old doctrine says : ''If the hus- 
band be out of England, (or as the law somewhat loosely 
phrases it, extra quatuor maria) for above nine months, 
so that no access to his wife can be presumed, her issue 
during that period shall be bastards. But generally, (he 
adds, with reference to the latter determination, engraft- 
ed on the old rule,) during the coverture, access of the 



* King John, Act I, Scene I. 

^Regina vs. Murray, Salk. 122; Rex vs. Albertson, 1 Lord Ray, 
395; Salk. 484; Carth, 469. 

'1 Rol. Abr. 358, tit. Bastard, letter B. 



214 THE LAW IN SHAKESPEARE. 

husband shall be presumed, unless the contrary can be 
shov^Ti."^ It was decided that bastardy would not be 
found, when it was not shown that the husband had been 
"beyond seas," for forty weeks before the birth of the 
child ;^ it was generally held essential, even in later times, 
to establish the absolute impossibility of access of the 
husband during the natural period of gestation,^ and Lord 
Ellenborough, in a case decided the early part of the last 
century, refused to enter into the realm of mere probabili- 
ties, in such a case, but required a showing of absolute 
physical impossibility of the husband's being the father 
of the child.* 

As the case made, on the facts presented, did not pre- 
sent such strong probative force as to overcome the legal 
presumption of legitimacy, the inheritance, as a conse- 
quence of the conclusion against the bastardy of Phillip, 
would go to him. 

Sec. 172. Testamentary disposition disinheriting bas- 
tard. — 

"Rob. Shall then my father's will be of no force. 
To dispossess that child which is not his? 

Bast. Of no more force, to dispossess me, sir, 
Than was his Avill to get me, as I think."" 

The rule of the common law was that illegitimate chil- 
dren did not take, under a testamentary devise to the 
testator's children, and it was necessary that there should 
be evidence collected from the will itself, or from other 
competent source, to show affirmatively that the testator 
intended that his illegitimate children should inherit his 
estate, or they were not included.*^ Of course, where the 

*B1. Comm. 457. 

"Rex vs. Albertson, Carthew, 468, 9. 
'Goodright vs. Saul, 4 Term. Rep. 356. 
*King vs. Luffe, 8 East, 193, p. 207. 
= King John, Act I, Scene I. 

*See opinion of Master of the Rolls, in Bagley vs. Mollard, 1 
Russ. & My. 581. 



THE LAW IN SHAKESPEARE. 215 

fact of illegitimacy is established by competent evidence, 
if the testator's will expressly decided against the illegiti- 
mate child, then it would be doing violence to his intent, 
to permit such a child to inherit his land, and this is 
the rule invoked by Robert, in this verse. 

Sec. 173. Landed 'Squire. — 

"K. John. Go, Faulconbridge ; now hast thou thy de- 
sire, 
A landed knight makes thee a landed 'squire." ^ 

"Squire" is a contraction of the word esquire, which 
was a title applied by courtesy to various officers, mem- 
bers of the bar and others. The use of the term confers no 
particular distinction in law, but it was a title, in England, 
ubove that of a gentleman and below that of a knight. 
The eldest son of a knight and their eldest sons, in per- 
petual succession, were one class of esquires^ and justices 
of the peace and others who bore any office of trust under 
the crown, were called esquires. Robert, as the eldest son 
of a knight, was thus properly entitled to the term, as ap- 
plied to him by King John. 



^ King John, Act I, Scene I. 
* Camden. 

Speaking of Sliallow, Falstaff said, in 2' Henry IV (Act III, 
Scene II): "Fal. . . And now is tMs Vice's dagger become a 
'squire; and talks as familiarly of John of Gaunt, as if he had 
been sworn brother to him." 

Shallow answers to Bardolph as follows: "Shal. I am Robert 
Shallow, sir; a poor esquire of this county and one of the king's 
justices of the peace: What is your good pleasure with me?" 
(2' Henry IV, Act III, Scene II.) 

Referring to his desertion, before the battle of Patay, Talbot 
said of Fastolfe: 
"Tal. . . Before we met, or that a stroke was given, 

Like to a trusty 'squire, did run away." (Act IV, Scene I.) 

Before fighting Cade, Iden, said, in 2' Henry VI: "Men. Nay, 
it shall ne'er be said, while England stands, That Alexander Iden, 



216 THE LAW IN SHAKESPEARE. 

Sec. 174. Seduction. — 

"Bast. . . . But, mother, I am not sir Robert's son, 
I have disclaimed Sir Robert and my land. 
Legitimation, name and all is gone : 
Then, good, my mother, let me know my father: 
Some proper man, I hope; who was it mother? 

Lady F. Hast thou denied thyself a Fauleonbridge ? 

Bast. As faithfully as I deny the devil. 

Lady F. King Richard Coeur-de-lion was thy father ; 
By long and vehement suit I was seduc'd 
To make room for him in my husband's bed."^ 

Seduction, in criminal law, is the act of a man in induc- 
ing a woman to commit unlawful sexual intercourse with 
him.^ The crime may as well be committed against a 
married woman, as against an unmarried female,^ and on 
such a trial there is a presumption of chastity on the part 
of a woman of previously good reputation.* 



an esquire of Kent, Took odds to combat a poor famish'd man." 
(Act IV, Scene X.) 

And on presenting Cade's head to the king, Iden said: "Iden. 
Alexander Iden, that's my name; A poor esquire of Kent, that 
loves his king." (Act V, Scene I.) 

Emilia tells lago, in Othello, in defending Desdemona: 
"0, fie upon him: some such 'squire he was. 
That turn'd your wit and seamy side without. 
And made you to suspect me with the Moor." 

(Act IV, Scene II.) 
^ King John, Act I, Scene I. 
' Bouvier's Law Dictionary. 
» 2 Bishop, Cr. Proc. sec. 95. 
*1 Bishop's Cr. Proc. 1106. 

The earl of Cambridge, in Henry V, said: "Cam. For me, — 
the gold of France did not seduce." (Act II, Scene II.) 

Referring to the forces of King Edward, in 3' Henry VI, Exeter 
said: "Exe. The doubt is, that he will seduce the rest." . (Act 
IV, Scene VIII.) 

Cassius reflects, after his conference with Brutus, over Ceesar's 
ambitious nature: "Cas. Therefore 'tis meet That noble minds 
keep ever with their likes: For who so firm, that cannot be 
seduc'd." (Julius Caesar, Act I, Scene II.) 



THE LAW IN SHAKESPEARE. 217 

Sec. 175. Arbitration. — 

"Eli. . . This might have been prevented and made 
whole, 

With very easy arguments of love; 

Which now the manage of two kingdoms must 

With fearful bloody issue arbitrate."' 

'Arbitration is the investigation and settlement of the 
differences between contending parties, by one or more 
persons chosen by the parties, called arbitrators.- Any 
matter may be settled and finally adjusted by arbitration, 
which the parties themselves might have settled by con- 
tract or which could be the subject of an action at law. 
The use of the word, as it is found in this verse, is not 
strictly in its legal sense, for instead of showing an avoid- 
ance of the differences by agreement to submit to the 
judgment of disinterested persons, there is rather an ab- 
sence of arbitration and a conflict over the rights, not 
adjusted by arbitration. But the word in its popular 
meaning is used as the Poet uses it here. 

^ King John, Act I, Scene I. 
*3 Bl. Comm. 16; Bacon, Abr. 

In King Richard II (Act I, Scene I), the duke of Norfolk, re- 
plies to Bolingbroke: 

"Nor. Let not my cold words here accuse my zeal; 
'Tis not the trial of a woman's war, 
The bitter clamor of two eager tongues, 
Can arbitrate this cause betwixt us twain." 
Mortimer welcomed death, in 1' Henry "VI, as follows: "Just 
death, kind umpire of men's miseries, "With sweet enlargement, 
doth dismiss me hence." (Act II, Scene "V.) 

Hector, replies to Ulysses, who predicts the fall of Troy, in 
Troilus and Ci'essida, as follows: "Hect. . . The end crowns 
all; and that old common arbitrator, time, will one day end it." 
(Act IV, Scene V.) 

Before taking the potion, Juliet observes, while looking on her dagger: 
"Twixt my extremes and me this bloody knife 
Shall play the umpire; arbiting that 
"Which the commission of thy years and art 
Could to no issue of true honor bring." 

(Romeo and Juliet, Act IV, Scene I.) 



218 THE LAW IN SHAKESPEARE. 

Sec. 176. Usurpation — Denial of rights. — 

"Chat. Phillip of France, in right and true behalf 
Of thy deceased brother Geffrey's son, 
Arthur Plantagenet, lays most lawful claim. 
To this fair island and the territories; 
To Ireland, Poictiers, Anjou, Touraine, Maine; 
Desiring thee to lay aside the sword, 
Which sways usurpingly these several titles; 
And put the same into young Arthur's hand. 
Thy nephew, and right royal sovereign."^ 

Usurpation, in governmental law, is the tyrannical as- 
sumption of the government by force, contrary to and in 
violation of the constitution of the country.^ Lord Coke 
spoke of usurpation arising whenever a subject used the 
franchise of the king, without lawful authority,^ and this 
is the sense in which the term is used in this verse. 

Sec. 177. Equity.— 

"K. Phi. . . . For this down-trodden equity, we 
tread, 
In warlike march these greens before your town."* 

''Equity," in the broadest sense, signifies natural jus- 
tice. In the meaning given to the term by the Poet, it 
denotes equal justice between contending parties for the 
right. This is the moral significance of the term, with 
reference to the rights of parties having conflicting claims. 

In the more limited use of the word, equity is applied 
to the courts of equity, as distinguished from the courts 
of law, and is used to signify the remedial procedure by 



*King John, Act I, Scene I. 
^ Bouvier's Law Dictionary. 
«Coke, Litt. 277b. 

In 2' Henry VI, the petitioner, Peter, when questioned as to 
what his master had said of the King, said: "Peter. . . my 
master said that he was, and that the king was an usurper." 
(Act I, Scene III.) 

*King John, Act II, Scene I. 



THE LAW IN SHAKESPEARE. 219' 

which these courts grant redress, as distinguished from 
the forms and proceedings in courts of law.^ 

Sec. 178. Canon of the law. — 

"Const. . . . Thy sins are visited in this poor child; 
The canon of the law is laid on him, 
Being but the second generation 
Kemoved from thy sin-conceiving womb."" 

A canon is a rule of doctrine applied to designate the 
ordinances of councils or the decrees of the pope. The 
system of canon law, as administered in different coun- 
tries, varies according to the recognition of the papal rules, 
beyond the dominions of the country where they are 
announced. The canon law has been a distinct branch 
of the law in the English ecclesiastical courts for many 
centuries, but the modification of the jurisdiction of those 
courts, of more recent years, has greatly reduced its inde- 
pendent importance as a branch of the law of that? 
country.* 

Sec. 179. Abstract and brief. — 

"K, Phi. . . . This little abstract doth contain that 
large, 
Which died in Geffrey; and the hand of time 
Shall draw this brief into as huge a volume."* 

An "abstract," in law^^^is a short account of the different 
portions of the lawsuit, with a synopsis of the evidence 

' Bouvier's Law Dictionary; Crabb's Hist. Eng. Law; Reeves' 
Hist. Eng. Law. 

Falstaff said to his companions, on dividing the booty from 
the robbery of the travelei's, in 1' Henry IV: "Fal. . . An' 
the Prince and Poins be not two arrant cowards, there's no equity 
stirring." (Act II, Scene II.) 

''King John, Act II, Scene I. 

'Bouvier's Law Dictionary; 1 Bl. Comm. 82. The above verse 
refers to the biblical injunction that the sins of the parent shall 
be visited upon the children, even to the second generation. 

* King John, Act II, Scene I. 



220 THE LAW IN SHAKESPEARE. 

offered at the trial, or of the distinctive portions thereof, 
sufficient for a full and fair consideration of the cause, 
before the court.^ Abstracts are filed in appeal cases, be- 
fore the brief is filed for the perusal of the court, wherein 
the cause is pending. A "brief" is an abridged state- 
ment of the parties' cause, with a presentation of the points 
or issues involved in the cause.- The object of the brief 
is to inform the person deciding the case of the impor- 
tant points for him to consider in making up his judg- 
ment in the cause. That the son of Geffrey, compared 
to a brief, would, by "the hand of time" be drawn into 
as huge a volume as his father, is the poetic conclusion 
which Shakespeare makes King Phillip draw, from the 
use of these legal terms. 

Sec. 180. Indenture. — 

"Aust Upon thy cheek lay I this zealous kiss. 
As seal to this indenture of my love."^ 

An "indenture/' at common law, was any deed, or writ- 
ten instrument, betAveen tAvo or more persons, as distin- 
guished from a deed pole, which was made by a single 



* Wharton, Law Dictionary. 

=* Bouvier's Law Dictionary. 

The Duchess of York, on learning of the death of her grand- 
children, the sons of King Edward, said: "Duc7i. Brief abstract 
and record of tedious days, Rest thy unrest on England's lawful 
earth." (King Richard III, Act IV, Scene IV.) 

Speaking of Antony, Caesar, is made to say, in Antony and 
Cleopatra: 
"Caes. . . . You shall find there 

A man who is the abstract of all faults 

That all men follow." (Act I, Scene IV.) 

Cleopatra tells Caesar, in Antony and Cleopatra: "This is the 
brief of money, plate and jewels, I am possess'd of." (Act V, 
Scene II.) 

In speaking to Polonius, of the Players, Hamlet said: "Ham, 
. . . Do you hear, let them be well used; for they are the 
abstract and brief chronicles of the times." (Act II, Scene II.) 

'King John, Act II, Scene I. 



THE LAW IN SHAKESPEARE. 221 

individual.^ The name was adopted from the practice 
of indenting or scolloping the top or side of the instru- 
ment, with some word written over such indentations and 
then as many copies were delivered as there were parties 
to the contract, leaving part of each letter on either side 
of the line, so that the parts could be placed together and 
thus authenticated.^ 

As this form of agreement was a specialty contract, a 
seal was necessary thereon, hence the comparison of the 
kiss to the "seal to this indenture." 

Sec. 181. Rape. — 

"K. Phi. . . . But thou from loving England art so 
far. 
That thou hast under-wrought his lawful king, 
Cut off the sequence of posterity, 
Outfaced infant state, and done a rape 
Upon the maiden virtue of the crown."^ 

"Rape," in its broadest sense, means to snatch, or seize 
M'itli violence,* and but for the connection in which the 

' 1 Reeve's Hist. Eng. Law, 89. 

=" Coke's, Litt., 143b, 229a; Tiedeman, R. P. (3d ed.) 587. 

In 1' Henry IV, Prince Henry said to Francis: "P. Hen. Five 
years: by'r lady, a long lease for the clinking of pewter. But, 
Francis, dar'st thou be so valiant, as to play the coward vdth 
thy indenture, and to show it a fair pair of heels and run from 
it?" (Act II, Scene IV.) 

Hotspur is made to say in 1' Henry IV: "Hot. 'Tis the next 
way to turn tailor, or be red-breast teacher. An' the indentures 
be drawn, I'll away within these two hours; and so come in when 
ye will." (Act III, Scene I.) 

Thaliard, in Pericles, Prince of Tyre, observes, that "if a king 
bid a man be a villain, he is bound, by the indenture of his 
oath, to be one." (Act I, Scene III.) 

In King John (Act II, Scene I), the Duke of Austria is made 
to say, to Arthur: 

"Upon thy cheek lay I this zealous kiss. 
As seal to this indenture of my love." 

'King John, Act II, Scene I. 

* The word is from the Latin rapere, meaning to snatch, or seize. 



222 THE LAW IN SHAKESPEARE. 

word is used in this verse it might be implied that it was 
intended in this sense, but the last line of the verse leaves 
no doubt, but what the term was meant to be used as it is 
in criminal law, wherein its meaning is the carnal knpwl- 
edge of a woman, by a man, forcibly and against her will.^ 
In the perpetration of this crime, if the consent of the 
woman was not voluntarily and freely given, at the time 
of the commission of the offense, her subsequent consent 
Avould not affect the guilt of her wrongdoer, and a female 
of tender years was incapable of consent under the Eng- 
lish statute^ and the carnal knowledge of such female was 
consequently against her will and conclusively presumed 
to have been committed with violence, hence the reference 
to the commission of such a crime against "the maiden 
virtue of the crown." 

U2 Coke, 37; 4 Sh. Bl. Comm. 213; 2 Bishop, Cr. Law, 942; 2 
Chit. Cr. Law, 810. 
==2 Westminster, c. 34; 18 Eliz. c. 7, s. 4. 

Paris thus attempts to justify his rape of Helen, in Troilus 
and Cressida: 
''Par. Sir, I propose, not merely to myself. 

The pleasures such a beauty brings with it; 
But I would have the soil of her fair rape 
Wip'd off, in honourable keeping her." (Act II, Scene II.) 
The Poet distinguishes between the act of carnal knowledge 
with one's wife and the crime of rape, in the following lines, in 
Titus Andronicus: 
"Sat. Traitor, if Rome have law, or we have power. 

Thou and thy faction shall repent this rape. 
Bas. Rape, call you it, my lord, to seize my own, 
My true-betrothed love, and now my wife?" 

(Act I, Scene II.) 
In Titus Andronicus, Aaron, the Moor, reflects upon the crime 
of rape: 
"Aar. And many unfrequented plats there are. 

Fitted by kind for rape and villainy." (Act II, Scene I.) 
Aaron, the Moor, before his confession, says, in Titus Andronicus: 
''Aar. I must talk of murders, rapes, and massacres. 
Acts of black night, abominable deeds, 
Complots of mischief, treason; villanies 
Ruthful to hear, yet piteously perform'd." (Act V, Scene I.) 



THE LAW IN SHAKESPEARE. 223 

Sec. 182. Interrogatories. — 

"K. John. What earthly name to interrogatories, 
Can task the free breath of a sacred king?"^ 

"Interrogatories" were the material and pertinent ques- 
tions, in writing, exhibited for the examination of wit- 
nesses, or. persons giving testimony in a cause. ^ Either 
party, plaintiff or defendant, may generally exhibit orig- 
inal or cross interrogatories to the Avitnesses in a cause.^ 
But for scandal or impertinence interrogatories could, 
under certain circumstances, be suppressed,* and the prac- 
tice of submitting interrogatories to a king, never having 
been recognized by the common law", is denounced, in the 
opinion of King John, as inconsistent with his royal pre- 
rogative. 

Sec. 183. Tithes— toll.— 

"K. John. . . . Tell him this tale; and from the 
mouth of England, 
Add thus much more, — That no Italian priest 
Shall tithe or toll in our dominions."^ 

"Tithes," in English law, were the tolls paid by the 
English subjects for the support of the clergy and con- 
sisted in the right of the clergy to a tenth part of the 
produce of land, or the stock upon the land and the 
proceeds of the personal industry of the inhabitants.*^ 
Tithes have never obtained in the United States, but the 
clergy is supported by the voluntary zeal of the people for 
religion. 

The despairing Lucrece, makes her complaint at Opportunity 
that 

"Wrath, envy, treason, rape, and murder's rages. 
Thy heinous hours wait on them as their pages." (909, 910). 

*King John, Act III, Scene I. 
' Bouvier's Law Dictionary. 
"Bacon, Abr.; Hind, Ch. Pr., 317. 
*Gresley, Eq. Evid. pt. 1, ch. 3, sec. 1. 
^King John, Act III, Scene I. 
* Bacon, Abr.; Cruise, Dig. 22. 



224 THE LAW IN SHAKESPEARE. 

Sec. 184. Laws redress of wrongs. — 

"Pand. There's law and warrant, lady, for my curse. 

Const. And for mine too; when law can do no right, 
Let it be lawful, that law bar no wrong: 
Law cannot give my child his kingdom here; 
For he, that holds his kingdom, holds the law: 
Therefore, since law itself is perfect wrong. 
How can the law forbid my tongue to curse. "^ 

That the Poet understood the scientific definition of the 
term "law," is evidenced by this verse, as law is defined 
by the best authoritj'' as "a rule of civil conduct, com- 
manding what is right and prohibiting what is wrong. "^ 
"When law can do no right," it ceases to attain the sole 
and sufficient object of law, according to this approved 
definition, and if unable to enforce the right, the conclu- 
sion is analogous that the law should "bar no wrong." 
In other words, since the law, by the authority of the 
supreme power of state, whose function it is to enforce 
the law, had been perverted and from the enforcement of 
rights, it had descended to the enforcement or defense of 
wrongs, Constance concluded that the law had thus recog- 
nized the wrong, instead of the right, as the ultimate 
object of the law. 

Sec. 185. Keeping the peace. — 

"Pern. Cut him to pieces. 
Bast. Keep the peace, I say."^ 

"Peace" imports, in a legal sense, not merely the repose 
and tranquility of a community or state, as opposed to 
violence and warfare, but it implies, as well, a state of 

The Hostess replies to Falstaff' s charge of robbery in her house, 
as follows, in 1' Henry IV: ''Host. Do you think I keep thieves 
in my house? I have searched, I have enquired, so has my hus- 
band, man by man, boy by boy, servant by servant: the tithe of 
a hair was never lost in my house before." (Act III, Scene III.) 

*King John, Act III, Scene I. 

=■1 Bl. Comm. 44. 

^King John, Act IV, Scene III. 



THE LAW IN SHAKESPEARE. 225 

public order and decorum or a compliance with the laws.^ 
In reply to the insistence of Pembroke to "Cut him to 
pieces," which would be a violation of the law and a 
consequent disturbance of the peace, Philip enjoined upon 
them that they should "keep the peace." This rejoinder 
is not only a request to comply with the law, in legal 
terms, but is also an apt play upon the words used by 
Pembroke. 

Sec. 186. Source of sovereign power. — 

"K. John. Thus have I yielded up into your hand the 

circle of my glory. 
Pand. Take again, from this my hand, as holding of 

the pope. 
Your sovereign greatness and authority."^ 

This ceremony of coronation is in keeping with that 
followed in the day and time to which the play relates, 
according to the forms of law then obtaining. The pope 
was regarded not only as the head of the Roman Catholic 
church, but as such, was the source for both temporal and 
spiritual power and while the ceremony of crowning a 
king whose adherents were sufficiently strong to give him 
the throne always seemed to accord with the will of the 
church, the pope, as the head of the church was supposed 
to ratify the granting of sovereignty to the king. 

* Bacon, Abr.; 2 Bentham, 319. 
= King John, Act V, Scene I. 

Bolingbroke, on taking the crown, in King Richard II, is made 
to say: "Boling. In God's name I'll ascend the regal throne." 
(Act IV, Scene I.) 



CHAPTER XVII. 

"KING RICHARD THE SECOND." 

Sec. 187. Appellaut. 

188. Accuser and accused. 

189. Impeachment. 

190. Deposing, according to Law. 

191. Trial by battle. 

192. Party-verdict. 

193. Reversion. 

194. Waste upon real estate. 

195. Landlord. 

196. Lease — Tenement. 

197. Possessed. 

198. Royalties. 

199. Attorneys-General. 

200. Letters-patent. 

201. Seize. 

202. Fine. 

203. Repeal. 

204. Covenant. 

205. Breaking Laws. 

206. Livery. 

207. Attorneys. 

208. Executors. 

209. Failure to speak, in criminal case — Standing mute. 

210. Signories. 

211. Under gage. 

212. Day of trial. 

213. Answer. 

214. Crimes. 

215. Manors. 

216. Conspiracy. 

Sec. 187. Appellant. — 

"Bolmg. First (heaven be the record of my speech:) 
In the devotion of a subject's love, 
Tendering the precious safety of my prince, 
And free from other misbegotten hate, 
Come I appellant to this princely presence."^ 

*King Richard II, Act I. Scene I. 
(226) 



THE LAW IN SHAKESPEARE. 227 

The appellant, in a lawsuit, is the party who appeals 
from one jurisdiction or forum to another, for the further 
prosecution of his cause. ^ After making the charge or 
accusation against Norfolk, Bolingbroke followed it up by 
bringing the same charge before the king, when the right 
of trial by battle was invoked by the accused. 

Sec. 188. Accuser and accused. — 

"K. Rich. Then call them to our presence ; face to face, 
And frowning brow to brow, ourselves will hear, 
The accuser and accused, freely speak."^ 

The accuser is one who makes a criminal charge or 
accusation against another,^ and the accused is one against 
whom such charge or accusation is made."* It is one of 
the rights guaranteed to an Englishman that when accused 
of a crime he has the right to have the witnesses brought 
before him, face to face, hence the king but recognized 
the lawful right of Norfolk to have his accuser face him 
in the charge of treason, in the above verse. 

Sec. 189. Impeachment. — 

"Nor. . . My life thou shalt command, but not my 
shame : 
The one my duty owes ; but my fair name, 
(Despite of death, that lives upon my grave,) 

* Bouvier's Law Dictionary. 

The Marshal, in this play, referring to Mowbray's readiness to 
meet Bolingbroke, said: 

''Mar. The duke of Norfolk, sprightfully and bold, 
Stays but the summons of the appellant's trumpet." 

(Act I, Scene III.) 
The Marshal tell the King: 
"Mar. The appellant in all duty greets your highness, 
And craves to kiss your hand and take his leave." 

(Act I, Scene III.) 
In Antony and Cleopatra, Eros advises Enobarbus that 
"Caesar, . . . accuses him of letters he had formerly wrote 
to Pompey; upon his own appeal seizes him." (Act III, Scene V.) 
^ King Richard IT, Act I, Scene I. 
=> Bouvier's Law Dictionary. 

* Ante idem. 



228 THE LAW IN SHAKESPEARE. 

To dark dishonour's use, thou shalt not have. 
I am disgrac'd, impeach'd, and baffled here."^ 

All civil officers at common law were liable to impeach- 
ment, which was a written accusation against the officer 
or person impeached, charging him with treason, bribery, 
or other high crimes or misdemeanors.^ The term is also 
used when applied to the kind of evidence which destroys 
the credibility of a witness in a cause on trial. ^ All wit- 
nesses are liable to be impeached by evidence of general 
reputation for truth or veracity and if one's general char- 
acter is good, one is always supposed, in law, to be able 
to defend it. 

Impeachment is used in this verse in the sense of its 
application to an officer, or a person charged with treason, 
as this was the charge brought against the duke of Norfolk 
by Bolingbroke. 

Sec. 190. Deposing, according to law. — 

"K. Rich. Marshall, ask yonder knight in arms, 
Both who he is, and why he cometh hither 
Thus plated in habiliments of war; 
And formally, according to our law, 
Depose him, in the justice of his cause."* 

*King Richard II, Act I, Scene I. 
''Story, Const. Law, Sec. 795. 
"GreenL Evid. vol. 1. 

In the United States, the house of representatives has the sole 
power of impeachments and the senate of the United States is 
given, by organic law, the sole right of trying impeachments. 
(Con. U. S. Art. 1, Sees. 2, 3, c. 5, 6.) 

On discovering the treason of his own son, the Duke of York 
exclaims: 
"York. Now by mine honour, my life, my troth, 

I will appeach the villain." (Richard II, Act IV, Scene II.) 

Clarence's son, on speaking of his father's death, in Richard 
III, said: "Son. . . my good uncle Gloster told me, the king, 
provok'd to it, by the queen, devis'd impeachments, to imprison 
him." (Act II, Scene II.) 

*King Richard II, Act I, Scene III. 



THE LAW IN SHAKESPEARE. 229 

One is said to "depose," when he testifies under oath, 
or gives his deposition.^ Before a witness testifies, he is 
deposed, or sworn to tell the truth in the cause before the 
court. In other words, when a party to a cause is called 
as a witness — and at common law a party in interest was 
incompetent as a witness — he was deposed, "according to 
our law," as the king directs the marshal, in this verse. 

Sec. 191. Trial by battle.— 

"Mar. What is thy name? and wherefore com'st thou 
hither. 
Before king Richard, in his royal lists? 
Against whom comest thou; and what's thy quarrel? 
Speak, like a true knight, so defend thee heaven. 

Boling. Harry of Hereford, Lancaster and Derby, 
Am I; who ready here do stand in arms. 
To prove, by heaven's grace and my body's valour, 
In lists, on Thomas Mowbray, duke of Norfolk, 
That he's a traitor, foul and dangerous, 
To God of heaven, king Richard and to me; 
And, as I truly fight, defend me heaven. 

K. Rich. We will descend, and fold him in our arms, 
Cousin of Hereford, as thy cause is right. 
So be thy fortune in this royal fight: 
Farewell, my blood ; which if to-day thou shed. 
Lament we niay, but not revenge thee dead. 

Nor. (Ruing) However heaven, or fortune cast my lot. 
There lives or dies, true to king Richard's throne, 
A loyal, just and upright gentleman: 
Never did captive with a freer heart, 
Cast off his chains of bondage and embrace 
His golden uncontroll'd enfranchisement. 
More than my dancing soul doth celebrate 
This feast of battle with mine adversary. 



*3 Greenl. Evid., sec. 11. 

Depose, is used here in an entirely different sense than it is 
in the Act where Northumberland urges King Richard to con- 
fess his crimes, so that the souls of men may deem that he was 
"worthily deposed." (King Richard II, Act IV, Scene I.) 



230 THE LAW IN SHAKESPEARE. 

K. Rich. Farewell, my lord; securely I espy, 

Virtue with valour couched in thine eye, — 
Order the trial, Marshall, and begin. "^ 

In the old English law, issues in both civil and criminal 
cases were settled, at an early day, by the ''trial by battle," 
which had its basis upon the supposition that heaven 
would always interpose and give the victory to the cham- 
pion of truth and innocence.^ The right to such a trial 
could be claimed at the election of the accused person, by 
the plea of not guilty and by declaring his readiness to 
make good his plea by his body. When such a right was 
claimed, the accuser had to make good his appeal and meet 
the accused in mortal combat. A Court was erected for 
the judges and after certain preliminaries the battle com- 
menced ; it was continued from sun-rise until evening and 
if the accuser cried craven, or was killed, the accused was 
held to be acquitted of the charge. On the contrary, if 
the accused was vanquished or killed, he was adjudged 
guilty and hanged, if he was not killed in the battle, and, 
in either case, his blood was thereafter attainted,^ so that 
his heirs were cut off from inheriting from him, and all 
his posterity was made base and ignoble.* 

'King Richard II, Act I, Scene III. 

*1 Hale, Hist. Com. Law, 188. 

'3 Bl. Comm. 337; 4 Bl. Comm. 346. 

*Co. Litt. 391b. For history of English law, of trial by battle, 
see I Reeve's Hist. Eng. Law, p. 393; III Reeve's History Eng. 
Law, p. 329; IV Reeve's History Eng. Law, p. 58, and citations. 

By way of further illustration of this proceeding, a Lord is 
made to offer the gage to the Duke of Aumerle, as follows: 
''Lord. From sun to sun, there is my honour's pawn; Engage it 
to the trial, if thou dare'st." 

And the Duke of Surrey likewise is made to offer battle to Lord 
Fitzwater, as follows: 

"Surrey. In proof whereof, there is my honour's pawn. 
Engage it to the trial, if thou dar'st." 

(King Richard II, Act IV, Scene I.) 

A trial by battle, occurred in England in 1571 (Dyer, p. 801) 
and as late as 1818, after a full discussion, the right to such a 



THE LAW IN SHAKESPEARE. 231 

trial was allov/ed by the judges in England. (Ashford vs. Thorn- 
ton, 1 Barn. & Aid. 405.) This decision no doubt gave occasion 
for the enactment of the statute of 59th Geo. Ill, c. 46, by which, 
this proceeding was abolished in England. 

Vernon and Bassett, implore the right of trial by battle, in 1' 
Henry VI, as follows: 

"Fer. Grant me the combat, gracious sovereign: 
Bos. And me, my lord, grant me the combat, too. 

• •••••• 

Stubbornly he did repugn the truth. 
About a certain question in the law, 

And in defence of my lord's worthiness, 
I crave the benefit of law of arms. 

• •••«• 

York. Let this dissension first be tied by fight. 

And then your highness shall command a peace." 

(Act IV, Scene I.) 
The following references to trial by battle, occur in 2' Henry 

VI, wherein Horner and his apprentice, Peter have such a trial: 

"Glo. This doom, my lord, if I may judge. 

. . . Let these have a day appointed them 

For single combat in convenient place; 

For he hath witness of his servant's malice: 

This is the law, and this duke Humphrey's doom. 

Hor. And I accept the combat willingly. 

Pet. Alas, my lord, I cannot fight; for God's sake, pity my case: 
the spite of man prevaileth against me 

••■•••■a 

York. . . Please it, your majesty. 

This Is the day appointed for the combat; 
And ready are the appellant and defendant. 
The armorer and his man to enter the lists. 
So please your highness to behold the fight. 

Q. Mar. Ay, good my lord; for purposely therefore 
Left I the court to see this quarrel tried. 

K. Hen. O, God's name, see the lists and all things fit: 
Here let them end it and God defend the right. 

York. . . . Sound trumpets, alarum to the combatants. 
{Alarum. They fight and Peter strikes down his master.) 



232 THE LAW IN SHAKESPEARE. 

Sec. 192. Party- verdict. — 

"K. Rich. Thy son is banish'd upon good advice, 
Whereto thy tongue a party-verdict gave."^ 

A party-verdict, is used in the sense of a partial verdict, 
no doubt, which is the special verdict on one charge or 

Hor. Hold, Peter, hold; I confess, I confess treason. (Dies.) 
York. Take away his weapon: — Fellow, thank God, and the 

good wine in thy master's way. 
Peter. God: Have I overcome mine enemies in this presence? 

Peter, thou has prevailed in right. 
K. Hen. Go, take hence, that traitor from our sight; 

For, by his death, we do perceive his guilt; 

And, God in justice hath reveal'd to us. 

The truth and innocence of this poor fellow, 

"Which he had thought to have murder'd wrongfully. — 

Come, fellow, follow us, for thy reward." 

(Act I, Scene III; Act II, Scene III.) 
The trial by battle is again shown in King Lear, when Edgar 
and his bastard brother, Edmund, try their cause by the wage of 
battle. 

After the proclamation by the Herald for Edmund, Edgar ap- 
pears, and the Herald asks him: 
"Her. What are you? Your name, your quality? And why you 

answer this present summons. 
Edg. Know my name is lost; By treasons tooth-bare gnawn, and 
canker-bit; 

Yet am I noble as the adversary, I came to cope withal. 
Alb. Which is that adversary? 

Edg. What's he that speaks for Edmund earl of Gloster 
Edm. Himself; — What say'st thou to him? 

Edg. Draw thy sword 

Edm. In wisdom, I should ask thy name; 

But, since thy outside looks so fair and warlike. 

And that thy tongue some'say of breeding breathes. 

What safe and nicely I might well delay 

By rule of knighthood, I disdain and spurn." 

(Act V, Scene III.) 
By the rule of knighthood, referred to, if the adversary was 
not of equal rank with the challeng'd one, the combat might be 
legally declined. 

'King Richard II, Act I, Scene III. 



THE LAW IN SHAKESPEARE. 233 

count in a criminal case, returned by the jury, as where 
a verdict for the accused is found on part or some of the 
charges or counts in the indictment and a verdict against 
the accused in another form, by the same jury.^ In other 
words, as Gaunt, himself had advised such a course, the 
verdict of banishment, the king maintains, was a verdict 
to which he gave his partial consent. 

Sec. 193. Reversion. — 

"K. Rich. . . . Off goes his bonnet to an oyster- 
wench ; 
A brace of draymen bid — God speed him well, 
And had the tribute of his supple knee, 
^ With — Thanks my countrymen, my loving friends; 
As were our England, in reversion his. 
And he our subjects next degree of hope."- 

A reversion is the residue of an estate in lands, to com- 
mence in possession after the determination of a prior 

1 Arch. Cr. PI. & Evid. 146, 147. 

Vernon decided in favor of the white rose, in the controversy 
between Somerset and Richard Plantagenet, in 1' Henry VI, as 
follows: ''Ver. Then, for the truth and plainness of the case, 
I pluck this pale and maiden blossom here, Giving my verdict 
on the white rose side." (Act II, Scene IV.) 

Richard Plantagenet, in 1' Henry VI, speaking of the trouble 
between Gloster and the Bishop of "Winchester, said: "Plan. 
Plantagenet, I see, must hold his tongue, lest it be said. Speak, 
sirrah, when you should; Must yotir bold verdict enter talk with 
lords?" (Act III, Scene I.) 

A citizen, speaking of Caius Marcius, being an enemy of the 

people, in Coriolanus, said: "1 Cit. Let us kill him, and we'll 

have corn at our own price. I'st a verdict?" (Act I, Scene I.) 

Describing her lover, the "fickler maid," narrated, in A Lover's 

Complaint: 

"But quickly on this side the verdict went: 
His real habitude gave life and grace 
To appertainings and to ornament, 
Accomplish'd in himself, not in his case." (113, 116.) 

*King Richard II, Act I, Scene III. 



234 THE LAW IN SHAKESPEARE. 

particular estate in the same lands. ^ In other words, the 
estate left after the termination of a life estate or an estate 
for years in a given tract of land, is a reversion, and the 
estate arises by operation of law and not by deed or will, 
and it is in this that it differs from a remainder, which can 
only be limited by deed or will.- 

The reversioner has the next right to the land, after 
the tenant of the term is through with the land, hence 
the reference to the kingdom, as vested in Bolingbroke, 
in reversion, and the reference to him as "our subjects 
next degree of hope." 

Sec. 194. Waste upon real estate. — 

"Gaunt. A thousand flatterers sit within thy crown, 
Whose compass is no bigger than thy head; 
And yet, encaged in so small a verge, 
The waste is no whit lesser than the land."^ 

Waste is any damage or act which injures the inherit- 
ance of real estate done by a tenant for life or years, to the 



^Tledeman, R. P. (3d ed.), sec. 291. 

= 2 Bl. Comm. 175; 4 Kent's Comm. 349. 

In King Richard II, the Queen said to Bushy: 
"Queen. 'Tis nothing less: conceit is still deriv'd 
From some forefather grief; mine is not so; 
For nothing hath begot my something grief; 
Or something hath the nothing that I grieve; 
'Tis in reversion that I do possess." (Act II, Scene II.) 
Douglas said to Hotspur, in 1' Henry IV: "Boxig. 'Faith and 
so we should Where now remains a sweet reversion." (Act IV, 
Scene I.) 

In Troilus and Cressida, Troilus speaks of Perfection in rever- 
sion, as follows: 

"Tro. . . . Praise us as we are tasted, allow us as we 
prove; our head shall go bare, till merit crown it; no perfection 
in reversion shall have a praise in present; we will not name 
desert, before his birth, and, being born his addition shall be 
humble."^ (Act III, Scene II.) 

=> Richard II, Act II, Scene I. 



THE LAW IN SHAKESPEARE. 235 

prejudice of the reversioner or heir.^ A tenant who cuts 
down trees, without the consent of his landlord, or re- 
versioner,- or one who opens mines,^ or commits such 
like acts of injury to the inheritance, is held to commit 
waste thereon. 

Gaunt meant to tell the King that in seeking loans 
from the rich nobles of the realm and granting them con- 
cessions therefor, he had w^asted the realm, as it were, for 
waste may be permissive, as well as otherwise and the dam- 
age is just as great. 

Sec. 195. Landlord. — 

"Gaunt. . . . Landlord of England art thou now, 
not king: 
Thy state of law is bondslave to the law."^ 

Landlord, in its popular meaning, is a term applied to 
one who owns lands and rents them out to others. In the 
strictly legal sense, at ancient common law, it was used to 
indicate the lord or proprietor of the land who, under the 
feudal system retained the right of absolute property in 
the soil, or who had the fee of the land, while his grantee 
only took the right of possession.^ 

Gaunt here accuses the king of being merely the lord 
paramount or proprietor of the kingdom, not its king, in 
the true sense, and leaves the impression that his subjects 
are but little better than vassals, who only have the right 
of possession of the soil, a condition that has subverted 
the law. 

Sec. 196. Lease — Tenement. — 

'Vaunt. . . . This land of such dear souls, this dear, 
dear land, 
Dear for her reputation through the world, 

»Tiedeman, R. P. (3d ed.). 

='Tiedeman, R. P. (3d ed.). 

'White, Mines & Mining Remedies. 

* Richard II, Act II. Scene I. 

"Coke, Litt. 46a; Taylor, Land & Ten., sec. 25. 



236 THE LAW IN SHAKESPEARE. 

Is now leased out (I die pronouncing it,) 
Like to a tenement or pelting farm."^ 

A lease is a written contract Avhereby the possession and 
profits of lands, or of some produce therefrom, is granted 
either for life or a fixed term of years, or during the 
pleasure of the parties.^ 

A tenement in the law of real property, is anything of a 
permanent nature, which may be holden, as a house or 
homestead.^ 

A pelting-farm, was a farm yielding wool, from the 
skin or pelt of sheep or rams, hence was about the lowest 
order of tenements or farms leased at that day and time. 
In comparing the kingdom, which was being let or de- 
mised, to such a leasehold, the dying Gaunt clearly ex- 
presses his condemnation for the course pursued by the 
king. 

Sec. 197. Possessed. — 

"K. Rich. . . And for these great affairs do ask some 
' arge. 
Towards our assistance, w^e do seize to us 
The plate, coin, revenues, and movables. 
Whereof our uncle Gaunt did stand possess'd."* 

A possessor, in the law of real property, is one who 
holds, detains or enjoys such property under a claim there- 



^ Richard II, Act II, Scene I. 

*5 Coke, 23b; Coke, Litt. 57, a. 

^Coke, Litt. 6a; Bl. Comm. 17; Tiedeman, R. P. (3d ed.), sec. 6. 

Gaunt further on, tells King Richard: 
'Gaunt. . . . Why, cousin, wert thou regent of the world, 
It were a shame to let this land by lease." 

(King Richard II, Act II, Scene I.) 
In The Rape of Lucrece, the Poet said: 
"O, let it not be hild. 
Poor women's faults, that they are so fulfill'd 
With men's abuses; those proud lords to blame 
Make weak-made women tenants to their shame." 

(1257, 1260.) 
♦Richard II, Act II, Scene I. 



THE LAW IN SHAKESPEARE. 237 

to. In the law of real property the possessor thereof has the 
right to receive the profits, until a better adverse title has 
been established to such land, and this right is the right 
asserted by the king, as an incident to his possession, re- 
sulting from the confiscation of the property whereof his 
uncle Gaunt, ''did stand possess'd."^ 

Sec. 198. Royalties. — 

"York. . . Seek you to seize and gripe into your 
hands, 
The royalties and rights of banish'd Hereford? 
Is not Gaunt dead? and does not Hereford live? 
Was not Gaunt just? and is not Harry true? 
Did not the one deserve to have an heir?"- 

A royalty, in the law of landlord and tenant, is a share 
of the product or profits of land, as part of the output from 
a mine,^ reserved, by way of a rental, by the owner of 
the land for permitting another to use and enjoy it* 

The duke of York here contends for the right of 
descent, recognized by the English law and of the right 
of Bolingbroke, as the heir to his deceased father, to 
inherit his land. It is presented, that there Avas no dis- 
loyalty, or attainder, which would destroy the right of 
descent, but both the ancestor and the heir were loval 
pubjects, which would give the heir a right of inheritance. 

' 2 Bl. Comm. 116. 
^ King Richard II, Act II, Scene I. 
"White, Mines and Mining Remedies, Chapter 12. 
*Ante idem. Coke, Litt. 46b; 202a; Tiedeman, R. P. (3d ed.), 
Sees. 145, 149. 

Speaking, to King Richard II, of the object of Bolingbroke's 
return, the Earl of Northumberland, said: 
''North. His coming hither hath no further scope. 

Than for his lineal royalties, and to beg, 

Enfranchisement immediate on his knees." 

(Act III Scene III.) 



238 THE LAW IN SHAKESPEARE. 

Sec. 199. — Attorneys-General. — 

''York. ... If you do wrongfully seize Hereford's 
rights, 
Call in the letters-patents that he hath 
By his attorneys-general to sue 
His livery, and deny his offer'd homage, 
You pluck a thousand dangers on your head."^ 

An attorney-general is one elected or appointed to at- 
tend to all legal affairs of a state, nation or kingdom, with 
general authority in the premises, in all legal affairs.^ 
The King, at English law, is the Lord paramount in whom 
abides the superior title to land and all citizens hold under 
him, in legal contemplation, in their estates, or owner- 
ship.^ At feudal periods, when the owner died, his adult 
heirs, had to ''sue livery," or claim a delivery to himself, 
as heirs of the father, of the land of which the latter died 
siezed.* And this is the process that Shakespeare refers 
to in these lines, which the duke of York declares ought 
to be recognized, by the King. 

Sec. 200. Letters-patent. — 

"York. . . If you do wrongfully seize Hereford's 
rights. 
Call in the letters patent that he hath 
By his attorney-general to sue 
His livery, and deny his offer'd homage, 
You pluck a thousand dangers on your head."^ 

Letters-patent are so called, because they are not sealed 
up, but are granted open. They are letters from the 
Government or its representative, to convey the right to 
the patentee, as a patent for a tract of land, or to secure 
him a right that he already possessed, as a patent for a 
new invention or discovery. Letters patent are generally 



^ King Richard II, Act II, Scene I. 

^ Bouvier's Law Dictionary. 

'Tiedeman R. P. (3d. ed.). 

*Malone, Rolfe's Richard II, p. 194, notes. 

^ King Richard II, Act II, Scene I. 



THE LAW IN SHAKESPEARE. 239 

a matter of record and hence can be read by all persons, 
thus furnishing record evidence of the right secured 
thereby.^ 

The good duke of York here tells the king that if he 
confiscates the duke of Hereford's property, he must recall 
the letters-patent securing him the land he holds by 
right of homage and livery of seisin and thus do violence 
to the rights of citizens in the kingdom. 

Sec. 201. Seize.— 

"K. Rich. Think what you will ; we seize into our hands, 
His plate, his goods, his money and his lands. "- 

To seize, in the law, is the act of taking possession of 
the property of a person, condemned by the judgment of 
his sovereign or of a competent tribunal, to pay a sum of 
money, for which the property is taken. =* The act of 
seizure may also be made because of the violation of some 
public law, by one qualified and competent to make such 
seizure, but the seizure of the king, in this instance, 
was contrary to law, as no attainder had lawfully been 
adjudged against Gaunt, nor his son, and the right of 
property, by virtue of the law, was thus denied the right- 
ful owner. 



* Bouvier's Law Dictionary. 

Replying to the request of Suffolk and Norfolk to surrender 
his great seal, Cardinal Wolsey, in King Henry VIII, said: ''Wol. 
That seal, you ask, with such a violence, the king, (Mine and your 
master,) with his own hand gave me: Bade me enjoy it with the 
place and honours, during my life; and, to confirm his goodness, 
tied it by letters patent: Now, who'll take it?" (Act III, 
Scene II.) 

^ King Richard II, Act II, Scene I. 
'2 Cranch, 87; Comyns Dig. C. 5. 

In The Passionate Pilgrim, in narrating how Venus wooed 
Adonis, it is said: 

" 'Even thus,' quoth she, 'he seized on my lips,' 
And with her lips on his did act the seizure." (XI, 9, 10.) 



240 THE LAW IN SHAKESPEARE. 

Sec. 202. Fine.— 

''Ross. The commons hath he piled with grievous taxes, 
And lost their hearts; the nobles hath he fin'd, 
For ancient quarrels and quite lost their hearts."^ 

In the criminal law, a fine is any pecuniary punishment 
imposed by a lawful tribunal, upon a person convicted of 
some crime or misdemeanor.^ The kind of fine referred 
to in this verse is that known at the ancient common law 
as a fine le roy, which was a sum of money that any one 
was compelled to pay the king for any contempt or offense. 
Any one committing a trespass or quarrelling or commit- 
ting other misdemeanor, could be fined by the king there- 
for, and the fine thus exacted was called a fine le roy.^ 

Sec. 203. Repeal.— 

"Green. . . . The banish'd Bolingbroke repeals him- 
self, 
And with uplifted arms is safe arriv'd 
At Ravenspurg."* 

A repeal is the abrogation or destruction of a law or 
decree by a competent authority.^ When a law is re- 
pealed it leaves all the civil rights of the parties the same 

^King Richard II, Act II, Scene I. 

^ Bacon, Abr. Fines and Amercements; Sheppard Touch. 2. 

'Termes de la Ley; Cunningham, Law Dictionary. 

Winchester replied to the Mayor of London, who was trying 
to command the peace, before the Tower, in 1' Henry VI, as 
follows: "Win. Here's Gloster, too, a foe to citizens: One that 
still motions war, and never peace, O'ercharging your free purses, 
with large fines; That seeks to overthrow religion." (Act I, 
Scene III.) 

Speaking of the tumult over the birth of Queen Elizabeth, the 
Lord Chamberlain, in King Henry VIII, said: "Cham. As I live. 
If the king blame me for't, I'll lay ye all, by the heels, and 
suddenly; and on your heads Clap round fines, for neglect." 
(Act V, Scene IIL) 

*King Richard II, Act II, Scene II. 
^Bouvier's Law Dictionary. 



THE LAW IN SHAKESPEARE. 241 

as if no such law or decree had been in force/ hence, the 
inference here is that Bolingbroke, by force of his own 
will and with strong arms had repealed the decree of 
banishment, and set aside the order for his banishment, 
by virtue of a power above that of the king's. 

Sec. 204. Covenant. — 

"Boling. . . . My heart this covenant makes, my 
hand thus seals it."^ 

A covenant, in the law of contracts, is an agreement 
entered into by deed, or contract under seal, whereby the 
promisor or covenantor promises the performance or non- 
performance of certain acts or that a given state of things 
does or does not exist, as in the contract is specified.^ 

Bolingbroke here makes his heart the party to the cove- 
nant or promise and seals it, with his hand, as all such 
covenants were, by law, required to be sealed, to give the 
covenant validity.* 

Sec. 205. Breaking laws. — 

"York. It may be, I will go with you: — but yet, I'll 
pause, 
For I am loath to break our country's laws."^ 

This respect for the law, shown by the duke of York, 
is worthy the emulation of the most respected citizens, for 



^ Bacon, Abr. (Statute, D.) 

^ King Richard II, Act II, Scene II. 

^ Bacon, Abr. Covenant, B; Rawle, Gov. 364; 4 Kent's Comm. 
473. 

^3 Coke, Inst. 169. 

Warwick said to the duke of York, in V Henry VI: "War. Be 
patient, York; if we conclude a peace. It shall be with such strict 
and severe covenants. As little shall the Frenchmen gain 
thereby." (Act V, Scene IV.) 

King Henry VI, tells Suffolk, in regard to his marriage with 
Margaret: "K. Hen. . . post, my lord, to France; Agree to 
any covenants." (Act V, Scene V.) 

^ King Richard II, Act II, Scene III. 



242 THE LAW IN SHAKESPEARE. 

by strict adherence to law alone can the mandates of the 
law be maintained. In the broader sense, law is the 
aggregate of the rules of conduct to keep the members of 
society within the proper limits.^ In its analysis, it may 
include adherence to rules for the protection of the person 
or the property of the member who invokes the law, or it 
may apply to the class of public wrongs known as crimes ; 
but in either case, it is the same law, requiring the same 
obedience and this obedience to the law which York recog- 
nizes as the first duty of citizenship, shows that York 
spoke with a deep knowledge of the underlying duty of 
the citizen. 

Sec. 206. Livery.— 

"Boling. ... I am denied to sue my livery here, 
And yet my letters-patent give me leave."- 
Livery as here used, referred to the writ known at the 
common law, which the heir, on arrival at his majority, 
had the right to sue out, to obtain the possession of the 
seisin of his lands, at the hands of the king.^ The king 
was regarded as the absolute owner of the soil and the 
rights of the lords to hold the land was mediately or imme- 
diately from the sovereign, hence, when a new tenant of 
the freehold, by descent, desired to possess his land, he 
had to do so by sueing out livery.'* Bolingbroke com- 

^2 Bentham, 402-407. 

The servant, in the Duke of York's garden, is made to say: 
"1 Serv. Why should we, in the compass of a pale, 
Keep law and form and due proportion. 
Showing, as in a model, our firm estate?" 

(King Richard II, Act III, Scene IV.) 
The Duke of Gloster replied to Cardinal Winchester, in 1' 
Henry VI, as follows: "GZo. Cardinal, I'll be no breaker of the 
law: But we shall meet and break our minds, at large." (Act I, 
Scene III.) 

2 King Richard II, Act II, Scene III. 

^2 Bl. Comm. 68. 

*Tiedeman, R. P. (3d ed.). Chap. Ill, The Feudal System. 



THE LAW IN SHAKESPEARE. 243 

* 

plains that this common law right was denied him, in the 
face of his letters-patent, which gave and secured to him 
this right. 

Sec. 207. Attorneys. — 

'^Baling. . . . What would you have me do? I am 
a subject, 
And challenge law: Attorneys are denied me; 
And therefore personally I lay my claim 
To my inheritance of free descent.'^^ 

Attorneys are those put in the place, stead or turn of 
another, to manage his affairs, or some particular affair, 
by direction of the principal.- The right of appearing by 
attorney was a right given all citizens at common law, for 
Lord Coke says: "All persons who are capable of acting 
for themselves and even those who are disqualified from 
acting in their own capacity, if they have sufficient under- 
standing, as infants of proper age, may act by attorneys."^ 

Bolingbroke invokes the law of descent, as recognized in 
England, and being denied attorney to present his cause, 
he appears in person, as he had a right to do. 

In 1' Henry IV (Act IV, Scene III) Hotspur thus explains 
his father's former friendship for the king: 
"Hotspur. . . . My father gave him welcome to the shore; 

And when he heard him swear and vow to God 

He came but to be Duke of Lancaster, 

To sue his livery and to beg his peace, 

With tears of innocency and terms of zeal. 

My father, in kind heart and pity mov'd, 

Swore him assistance and perform'd it too." 

*King Richard II, Act II, Scene III. 
=* Spellman, Gloss; Bacon, Abr. Attorney. 
'Coke, Litt. 52 a. 

Referring to the wordy abuse of Queen Margaret, after the 
death of her sons, Queen Elizabeth observed, in King Richard III: 
"Q. Eliz. Windy attorneys to their client woes. 
Airy succeeders of intestate joys, 

Poor breathing orators of miseries." (Act IV, Scene IV.) 
In attempting to woo his own niece, through her mother, 
Richard III said to her mother: "K. Rich. Therefore, dear 



244 THE LAW IN SHAKESPEARE. 

Sec. 208. Executors. — 

"K. Rich. . . . Lets talk of graves, of worms and 
epitaphs ; 
Make dust our paper, and with rainy eyes, 
Write sorrow on the bosom of the earth. 
Lets choose executors and talk of wills ; 
And yet, not so, — for what can we bequeath. 
Save our deposed bodies to the ground."^ 

An executor is one to whom another commits by his last 
will, the execution of his will and testament.^ An execu- 
tor has authority over the personal estate of the decedent 
and it is his duty to dispose of the personal estate and pay 
the legacies and bequests bequeathed by the testator. If 
there was no property owned by the testator, of course 
there would be no duty to be performed by an executor, 
hence the King concludes, as he has nothing to bequeath, 
such an appointment is useless. 



Sec. 209. — Failure to speak, in criminal case — Standing 
mute. — 

"Queen. 0, I am pressed to death, 
Through w^ant of speaking."^ 

This line no doubt refers to the ancient practice at the 
common law, when a prisoner charged with treason, lar- 

mother, (I must call you so,) Be the attorney of my love to 
her." (Act IV, Scene IV.) 

Stanley thus greets Richmond, in King Richard III: "Stan. 
I, by attorney, bless thee from thy mother, Who prays continually 
for Richmond's good." (Act V, Scene III.) 

* King Richard II, Act II, Scene I. 

^1 Williams, Exec. 185; 9 Coke 88;. Coke, 2nd Inst. 236. 

Grandpre, the French lord, before the battle of Agincourt, said 
of the English: "Grand. . . their executors, the knavish 
crows, fly o'er them all, impatient for their hour." (Henry V, 
Act IV, Scene II.) 

'King Richard II, Act III, Scene IV. 



THE LAW IN SHAKESPEARE. 245 

ceny, or other felony, stood mute and refused to plead or 
answer to the charge and state whether he was guilty or 
not guilty. 

According to the ancient books, he was not taken as con- 
fessing to the crime, in case the offense was treason, or 
such high felony, but by way of punishment for his ob- 
stinacy in thus standing mute, he was confined to a low, 
dark chamber in the prison and with his body naked and 
outstretched, a great iron weight was placed upon him 
and thus he was so pressed without food, except bread 
and water, he either died, or answered to the charge 
against him.^ 

The effect of standing mute was thus to press the life 
out of the prisoner by such practice and hence the Queen, 
"Through want of speaking," claimed that she was liter- 
ally "pressed to death." 

»Fleta, lib. 1, c. 34, sec. 33; Brit. C. C. 4, 22. 

This inhuman practice was abolished by statute in England, in 
2 Geo. Ill, c. 20. It seems strange that with advancing civiliza- 
tion, such terrible things were countenanced by the law until 
such modern times. 

Pandarus, refers to this barbarous custom of the English 
courts, in advising Troilus and Cressida to press the bed to death, 
because it "stands mute," as to their "pretty encounters," thereon, 
in Troilus and Cressida, as follows: "Pan. . . I will show 
you a chamber and a bed, which bed, because it shall not speak 
of your pretty encounters, press it to death: away." (Act III, 
Scene II.) 

On arraignment of a prisoner, under the old English Common 
Law, he was enjoined to hold up his right hand, by which act 
he admitted that he was the person named in the indictment. 
The Clerk then asked him: "Are you guilty or not guilty?" If 
he answered "Not guilty" he was then asked: "Culprit, how will 
you be tried," and the prisoner replied: "By God and my country," 
when the Clerk retorted, "God send you a good deliverance," and 
the trial then proceeded. 

If the accused refused to or did not speak at all, he was said 
to "stand mute," and in treason or a misdemeanor, his silence 
was a confession of guilt, but if the offense was a felony, the 
Court determined, officially, if the standing mute was "of malice," 



246 THE LAW IN SHAKESPEARE. 

Sec. 210. Signories.— 

"Boling. These differences shall all rest under gage, 
Till Norfolk be repealed: repealed he shall be, 
And, though mine enemy, restored again 
To all his land and signories ; when lie's return'd 
Against Aumerle we will enforce his trial. "^ 

Signories is here used in the sense of the land or terri- 
tory over which the lord holds jurisdiction, by virtue of 
his recognition as the owner of such land, by his sover- 



or by "visitation of God," and, if the latter, the trial proceeded; 
but, if the former, the culprit was pressed to death, by a heavy 
weight, if he or she continued to stand mute. 

Many cases are reported where this barbarous treatment was 
accorded defendants who refused to plead. Margaret Clitherow, 
a married woman, under a felony charge, who refused to plead, 
was pressed to death, at York, on Lady Day, March 25th, 1586, 
She was given different opportunities to plead but persisting in 
her stubbornness, was disrobed and placed on her back and a 
heavy door was placed upon her, with weights, which broke her 
ribs and mashed her to death. 

Major Strangeways arraigned, in 1658, for the murder of his 
brother-in-law, refused to plead, to avoid forfeiture of his estate 
on his conviction. The weight was placed upon him angle-wise 
and not being sufficient to kill him outright, the bystanders added 
their weight and ehded his misery. 

In 1726, a man named Burnworth, refused to plead to the 
charge of murder, but after being press'd for an hour or so, with 
four hundred weight of iron, he recanted and entered his plea 
and was convicted and hanged. This practice was called peine 
■forte et dure. The punishment was established during the reign 
of Henry IV, in the 15th century and continued until 1772, when 
by statute, (12 Geo. Ill, c. 20.) standing mute in felony was made 
equivalent to a conviction. But in 1827, by statute, (7 and 8 
Geo. IV, c. 28) a plea of not guilty was entered for one standing 
mute, for any cause, and this more humane practice continues to 
the present day. 

(See article by Francis Watt, The Law's Lumber Room, pub- 
lished by John Lane, London, also in 14 Law Notes, pp. 31, 33, 
for May 10th, 1910.) 

'King Richard II, Act IV, Scene I. 



THE LAW IN SHAKESPEARE. 247 

eigii.^ It is essentially a right or thing claimed or taken 
by virtue of a sovereign prerogative. 

Bolingbroke declares that he will so far forgive his 
enemy Norfolk as to recognize his landed rights by the 
repeal of the decree for his banishment and to let his 
titles rest undisputed, until his trial, by battle, against 
Aumerle, after his return. 

Sec. 211. Under gage.— 

"Boling. . . . Lords appellants, your differences 
shall all rest under gage, ^ 

Till we assign you to your days of trial. - 

A gage is something given as a security or by way of 
pledge for the performance of a given act by the person 
entering into the gage, which is forfeited for failure^ to 
perform, as per agreement.^ In other words, the king 
here declares that until the day of trial, each shall be 
under surety for his appearance at the trial by battle and 
until that time the rights of all parties shall stand in 
statu quo. 

Sec. 212. Day of trial.— 

''North. Well have you argu'd sir ; and, for your pains, 
Of capital treason we arrest you here: — 
My lord of Westminster, be it your charge 
To keep him safely till his day of trial."* 

A trial is the examination, before a competent tribunal, 
according to law, of the facts put in issue in a cause, for 



1 2 Bl. Comm. 438. 

Westmoreland replies to Lord Mowbray, in 2' Henry IV, as fol- 
lows: "West. . . . Were you not restor'd to all the duke of 
Norfolk's signories, your noble and right well remember'd fa- 
ther?" (Act IV, Scene I.) 

= King Richard II, Act IV, Scene I. 

^Granville, lib. 10, c. 6. 

*King Richard II, Act IV, Scene I. 



248 THE LAW IN SHAKESPEARE. 

the purpose of determining such issue or issues.^ As a 
trial is usually had by witnesses and this necessitates time 
to get the evidence at hand, a "day of trial" is usually set 
and upon that day the issues are decided upon the evi- 
dence submitted.^ 

Sec. 213. Answer. — 

"Boling. Lords, you that are here under our arrest. 
Procure your sureties for your days of answer."^ 

An answer is a defense in waiting made by a defendant 
to the charge contained in a bill, or information filed 
against him, in a suit pending in court.* An answer is 
generally required to meet the charges of the bill or 
information filed and to contain matters of fact, not argu- 
ments or irrelevant matter, without repetition or undue 
prolixity. The lords here arrested were required to fur- 
nish sureties for their appearance at the day of trial, 
which is referred to as the day of answer. 

Sec. 214. Crimes. — 

"North. No more, but that you read. 

These accusations and these grievous crimes, 
Committed by your person and your followers, 
Against the state and profit of this land; 
That, by confessing them, the souls of men 
May deem that you are worthily deposed. "^ 

A crime is a wrongful act which the Government 
notices and punishes because it is injurious to the public." 

19 Coke, 30; 3 Bl. Comm. 331; 3 Bl. Comm. 333. 

= Originally a trial at nisi prius — where issues of fact were de- 
termined — was before a justice in eyre, but afterwards, by statute 
of Westminster, (13 Edw. I, c. 30) the trial was had before a 
justice of assize. (3 Sharsh. Bl. Comm. 353.) 

= King Richard II, Act IV, Scene I. 
*2 Brown, Civ. Law, 371n. 
= King Richard II, Act IV, Scene I. 
" 1 Bishop, Cr. Law, Sec. 43. 



THE LAW IN SHAKESPEARE. 249 

The word crime, as distinguished from a misdemeanor, 
generally denotes an offense of a deep and atrocious char- 
acter, when compared with those of lesser degree, com- 
monly called misdemeanors.^ 

It was the deepest despair to compel the wronged king, 
after his subjection, to publicly proclaim himself a crim- 
inal and to renounce his kingdom, for the reason that it 
was essential for him to do so to convince the populace 
that his abdication was proper, but such was the punish- 
ment inflicted for his irregularities, which are here de- 
nominated crimes against the law. 

Sec. 215. Manors. — 

"K.Rich. . . . My manors, rents, revenues, I forego ; 
My acts, decrees and statutes, I deny."- 
A manor, derived from the French manoir, signifies a 
house, residence or habitation. At the common law, the 
meaning of the term had a broader signification and in- 
cluded not alone the house, or dwelling but the land sur- 
rounding it, as well, which was held through or by the 
king, or other person of rank.^ 



1 4 Bl. Comm. 4. 

Gloster is made to say to the Bishop of Winchester, in 1' 
Henry VI: 

''Glo. The manner of thy vile outrageous crimes. 
That therefore I have forg'd, or am not able 
Yerhatim to rehearse the method of my pen." 

(Act III, Scene I.) 
Lucrece complains at the night of her great wrong: 
'"O hateful, vaporous and foggy night: 
Since thou art guilty of my cureless crime. 
Muster thy mists to meet the eastern light, 
Make war against proportion'd course of time." (771, 774.) 

='King Richard IT, Act IV, Scene I. 
^Coke, Litt. 58, 108; 2 Rolle, Abr. 121. 

No new manors were created in England after the enactment 
of the statute Quia Emptores, forbidding subinfeudation, in the 
year 1290. Tiedeman, on R. P. (3d ed.), Sees. 22-31. 



250 THE LAW IN SHAKESPEARE. 

The king here, in his abdication foregoes his manors, 
rents and revenues and also in his dejection denies his 
acts, decrees and statutes. 

Sec. 216. Conspiracy. — 

"York. Thou fond, mad woman, 

Wilt thou conceal this dark conspiracy?"^ 

A conspiracy is a combination of two or more persons 
to accomplish by some concerted action, some criminal 
purpose, or to accomplish some purpose, not in itself crim- 
inal, by some criminal or unlawful means.- A treason- 
able design to overthrow the king and re-instate another 
in his place, entered into by several people, would come 
Avithin the legal definition of the term, and this is why the 
duke of York is struck with the mad act of his wife, in 
her attempt to concel such a dark crime. 

Speaking of the expense incurred in the pageant, by which 
the French treaty was ratified, Buckingham, in King Henry 
VIII, said: "Buck. O many have broke their backs with laying 
manors on them for this great journey." (Act I, Scene I.) 

*King Richard II, Act V, Scene II. 
»2 Bishop, Cr. Law, Sees. 149-202. 

Speaking of the treason of the earl of Cambridge, Henry V, 
said: "K. Hen. . . and this man, hath for a few light crowns, 
lightly conspir'd, and sworn unto the, practices of France, to kill 
us here in Hampton." (Act II, Scene II.) 

In 1* Henry VI, the duke of Gloster said to Winchester, before 
the Tower: 
"Olo. Stand back, thou manifest conspirator, 

Thou that contriv'dst to murder our dead lord." 

(Act I, Scene III.) 
York thus addresses Henry VI, in 3' Henry VI: "York. Henry 
of Lancaster, resign thy crown:— What mutter you, or what con- 
spire you, lords?" (Act I, Scene I.) 

On the entering of the conspirators, in Julius Czesar, Brutus 
said: 



THE LAW IN SHAKESPEARE. 251 

"Bru. conspiracy: 

Sham'st thou to show thy dangerous brow by night. 

When evils are most free? O, then, by day, 

Where wilt thou find a cavern dark enough 

To mark thy monsti-ous visage? Seek none, conspiracy; 

Hide it in smiles, and aflBbility; 

For if thou path thy native semblance on. 

Not Erebus itself were dim enough 

To hide thee from prevention." (Act II, Scene I.) 

Octavius Caesar tells Cassius, before the battle of Philippi: 
"Oct. I draw a sword against conspirators; 

When think you that the sword goes up again? — 
Never, till Caesar three and twenty wounds, be well aveng'd." 

(Act V, Scene I.) 



CHAPTER XVIII. 

"FIRST PART OF KING HENRY THE FOURTH." 



Sec. 217. 


King's right to prisoners, under military Law, 


218. 


"Tlie Law's Delay." 


219. 


"Peaching" on accomplice. 


220. 


Fighting Grand-jurors. 


221. 


Audi alteram partem. 


222. 


Term of apprentice. 


223. 


Arrest upon "hue and cry." 


224. 


Robbery. 


225. 


Tripartite agreements. 


226. 


Enfeoffment. 


227. 


Alien. 


228. 


Factor — Broker. 


229. 


Maiming. 


230. 


Reprisal. 


231. 


Counterfeit. 


232. 


Death by Judicial Sentence. 



Sec. 217. King's right to prisoners, under military law. — 

"King. . . . What think you coz, 

Of this young Percy's pride? the prisoners 
Which he in this adventure liath surpris'd 
To his own use he keeps, and sends me word 
I shall have none but Mordrake earl of Fife."^ 

This has reference to the right of the King, by virtue of 
his prerogative, to the prisoners taken in battle by his 
forces. ''According to Toilet, Hotspur had a right to all 
the prisoners, except the earl of Fife. By the law of arms, 
a man who had taken any captive, whose ransom did not 
exceed ten thousand crowns, had the control of him. The 
earl of Fife, being a prince of the blood royal, (the Duke 
of Albany, his father, was brother to King Robert III) 
could be claimed by Henry, by his acknowledged military 
prerogative."^ 

» V Henry IV, Act I, Scene I. 

^Rolfe's First part of King Henry IV, p. 164, notes. 

(252) 



THE LAW IN SHAKESPEARE. 253 

Sec. 218. " The law 's delay. ' '— 

"Fal. Well, Hal, well; and in some sort it jumps with 
my humour, as well as waiting in the court, I can 
tell you. 

P. Hen. For obtaining of suits? 

Fal. Yea, for obtaining of suits: whereof the hangman 
hath no lean wardrobe."^ 

In the present day, when people are so much concerned! 
about the "law's delay,"- it is interesting in the extreme 
to see that Shakespeare also noted this defect in the 
judicial system of England, in his day. Then, as now, 
to command the respect of the people it was true that 
the law should be not only impartially and honestly en- 
forced, but that justice should be likewise speedy in its 
results. Respect for the law and a complete reliance 
thereon, for the protection of the personal and property 
rights of the citizen is essential in every government and 
the power and majesty of the law should be instilled into 
the minds of the youth of all civilized states, as a cardinal 
principal of government. But while this is indisputable, 
it is none the less true that to commend itself to the peo- 
ple, not only the law, but its administration must be 
enforced in a manner to commend it to the people and 
unless this is done, there is grave danger of a widespread 
distrust of the remedies provided for the enforcement of 
the rights of citizens. As a usual thing there is no dis- 
cussion or agitation without a just cause, and the present 
and long continued discussion of the subject of the ''law's 
delay" would seem to merit due attention by the framers 
of constitutions and the architects of the judicial depart- 
ments of States, lest the dangers from such continued agita- 
tion bring about worse results than an amendment of the 
remedial procedure, used to enforce the laAvs, wdll justify. 

^ 1' Henry IV, Act I, Scene II. 

= See Article "The Law's Delay," by Hon. Frank B. Kellogg, pub- 
lished in "Comment," a legal publication, p. 126, for October, 1909. 



254 THE LAW IN SHAKESPEARE. 

Sec. 219. "Peaching" on accomplices. — 

"Fal. Go, hang thyself in thy own heir-apparent gar- 
ters: If I be ta'en I'll peach for this.'*' 



"1 



la Hamlet, also, Shakespeare names the "Law's delay" as one 
of the ills of life rather to be borne "than fly to others we know 
not of." 

"Hamlet. For who would bear the whips and scorns of time, 
The pangs of dispriz'd love, the law's delay, 
When he himself might his quietus make, . . . 
But that the dread of something after death. 
The undiscovered country from whose bourn 
No traveller returns, puzzles the will, 
And makes us rather bear those ills we have 
Than fly to others that we know not of." 

(Hamlet, Act III, Scene I.) 
Thus, the "law's delay" was one of the social evils recognized 
in the time of Shakespeare. 

King Henry thus tells Exeter, in 3' Henry VI: "K. Hen. I 
have not stopp'd mine ears to their demands. Nor posted off their 
suits with slow delays." (Act IV, Scene VHI.) 

Complaining of the delay in securing his divorce, from Kath- 
erine. King Henry VIII, said: "£". Hen. These cardinals trifle 
with me: I abhor the dilatory sloth, and tricks of Rome." (Act 
II, Scene IV.) 

Cardinal Campeius, in King Henry VIII, urged speedy trial 
and argument of the divorce suit, between Henry and Catherine, 
as follows: "Cam. And that, without delay, their arguments, 
Be now produc'd and heard." (Act II, Scene IV.) 

Speaking of the delayed justice of the Gods, in Antony and 
Cleopatra, Menecrates is made to say, to Pompey: 
"Mene. Know, worthy Pompey, 

That what they do delay, they not deny. 
Pom. Whiles we are suitors to their throne, decays 

The thing we sue for." (Act II, Scene I.) 

In King Lear, Albany speaks of the "nether crimes," that can 
"so speedily" be venged. (Act IV, Scene II.) 

The King, in Hamlet, speaks of the law's delays as follows: 
"We should do when we would; for this would changes. 
And hath abatements and delays as many. 
As there are tongues, are hands are accidents." 

(Act IV, Scene VII.) 
^1' Henry IV, Act II, Scene II. 



THE LAW IN SHAKESPEARE. 255 

'Teaching" is the common term applied, at criminal 
law, to the act of turning informer against one's accom- 
plices, or co-conspirators, in the commission of a crime, to 
free the one giving the evidence from the punishment for 
the crime committed.^ The same act is ofttimes spoken of 
as "turning state's evidence," whereby is meant that the 
criminal who divulges the evidence to the State, does so, 
in consideration of his acquittal, thus enabling the State 
to convict his accomplices, or associates in crime. 

Sec. 220. Righting grandjurors. — 

"Fal. Hang ye, gorbellied knaves, are ye undone? 
No, ye fat chuffs; I would your store were here: 
On, bacons, on: What, ye knaves: young men must 
live. You are grandjurors, are ye? we'll jure ye, 
i'faith."^^ 

A grandjuror, in the time of Elizabeth, had to be pos- 
sessed of a freehold estate, of the yearly value of four 
pounds^ and Falstaff's calling the travelers by this name 
is a recognition that he considered them men qualified to 
sit upon the grand-jury and indict him and his associates 
for the offense they were committing.* Jurors are those 
citizens selected to enforce the "rights" of litigants in 
courts, and grand-jurors are those men selected by the 
English courts, to take cognizance of the higher crimes 
and prefer indictments charging the offenders therewith 
in open court.^ "Jure" is the Latin word for "right," 
and Falstaff's play upon the word, meaning that he'd 

»The above line is the illustration, used by Mr. Webster, by 
way of illustration of the meaning of the term defined in his 
dictionary. 

^1' Henry IV, Act II, Scene III. 

^V Reeve's History Eng. Law. 

^ Doctor Rolfe thinks he intentionally misunderstood the trav- 
elers when they said "we are undone, we and ours forever," but 
this is not apparently borne out by the language or context of 
the reply by Falstaff. (Rolfe's 1' part of King Henry IV, p. 191.) 

5 Thompson, Trials. 



256 THE LAW IN SHAKESPEARE. 

''right" the travelers, by robbing them, is a declaration 
that their functions as such court officers, could not be 
performed around him. 

Sec. 221. Audi alteram partem. — 

"P. Hen. Mark now, how plain a tale shall put you 
down."^ 

To those accustomed by experience and discipline to a 
patient examination of both sides of a controversy, before 
reaching a conclusion, the above line, suggests the maxim 
— audi alteram partem — hear the other side, for the story 
of the robbery, as detailed by Falstaff, had two sides, and 
the version as given by Sir John could not stand along- 
side that of the Prince. 

This line suggests the natural bent of the lawyer's mind, 
for, as observed by Ram, on Facts: "A tendency to sus- 
pend his judgment on hearing one side only of a case, 
can scarcely fail to be the result of an advocate's practice. 
On any question, in any transaction of life, in which there 
may be opposite sides taken, he, having heard one side 
only, is sure to enquire what can be said on the other; it 
instantly occurs to him to say audi alteram partem."^ 

Sec. 222. Term of apprentice. — 

'T. Hen. How long hast thou to serve Francis? 
Fran. Forsooth, five year, and as much as to 



P. Hen. Five years : by'r lady, a long lease for the clink- 
ing of pewter. But, Francis, darest thou be so 
valiant as to play the coward with thy indenture, and 
to show it a fair pair of heels, and run from it?"^ 

That the above colloquy has reference to the common 
law contract of apprenticeship, there can be no doubt. By 

^ 1' Henry IV, Act II, Scene IV. 
='Ram, on Facts, (Am. Ed.) p. 270. 
M' Henry IV, Act II, Scene IV. 



THE LAW IN SHAKESPEARE. 257 

such a contract the person bound himself in due form 
of law to a master to learn from him his art, trade or busi- 
ness, and to serve him during the time of his apprentice- 
ship.^ At the common law, because the contract was 
deemed for the benefit of the infant, even an infant, who 
was otherwise held incompetent to make a valid or bind- 
ing contract, was held bound by his contract of apprentice- 
ship.- The apprentice was bound at law, to obey the 
master, during his service and could not legally leave 
his service during the term for which he was appren- 
ticed.^ 

Such contracts were generally in the form of an in- 
denture, and the Prince in urging Francis to "play the 
coward with thy indenture," was an attempt to get him 
to violate the law and leave during his term of service 
as an apprentice. 



^ Bacon, Abr., Master and Servant; 2 Kent's Comm. 261-266. 
= Coke, 2' Inst, 214; 1 Bl. Comm. 426. 
«6 Johns (N. Y.) 274. 

Both in England and in the United States, at the present day, 
on account of the abuse resulting from such contracts, they are 
not generally upheld, without the ratification or consent of the 
parent or guardian of the infant apprentice. 

Speaking of the descent from a Prince to an Apprentice, 
Prince Henry, in 2' Henry IV (Act II, Scene II) observed: 
"P. Hen. From a god to a bull? a heavy descension: it was 
Jove's case. From a prince to a 'prentice? a low transforma- 
tion — that shall be mine." 

Replying to the accusation of his apprentice, Horner said, in 
2' Henry VI: "Hor. . . My accuser is my 'prentice; and when 
I did correct him for his fault the other day, he did vow upon his 
knees he would be even with me." (Act I, Scene III.) 

The Prince may have referred to the statute, 23 Edw. Ill, c. 2, 
making it a crime for any apprentice, workman or servant, to 
depart from his service before the time agreed upon. (Ill Reeve's 
History Eng. Law, p. 129.) 



258 THE LAW IN SHAKESPEARE. 

Sec. 223. Arrest upon "hue and cry." — 

"Sher. First, pardon me, my lord. A hue and cry hath 
followed certain men into this house. "^ 

A ''hue and cry" was the pursuit of one who had com- 
mitted felony, by the highway and the right of private 
citizens to arrest the felon, on ''hue and cry" was estab- 
lished at common law.^ A person engaged in the "hue 
and cry" apprehending the felon, on his conviction, was 
entitled to forty pounds, on certificate of the judge or 
justice where the trial was had, as well as to the goods, 
horse, or money, taken with the felon, subject to the 
rights of other persons in the property claimed.^ 

The offense committed here, i. e., that of robbery, was 
the first offense mentioned in the statute wherein arresV 
upon "hue and cry" was authorized.* 

Sec. 224. Robbery.— 

"Sher. I will, my lord: There are two gentlemen have 
in this robbery lost three hundred marks. 

1 1' Henry IV, Act II, Scene IV. 

"2 Hale, 100. 

'Wood, Inst., 370-373. 

* There is mention of the "hue and cry" as early as the reign of 
Edward I and by the statute of Winchester (13 Edw. I) it was 
provided that: "Immediately upon robberies and felonies com- 
mitted, fresh suit shall be made, from town to town, and county 
to county, by horsemen and footmen, to the seaside. The con- 
stable is to call upon the parishioners to assist him in his pre- 
cinct and to give notice to the next constable, who is to do the 
same as the first, etc., and if the counties will not answer the 
bodies of the offenders, the whole hundred shall be answerable 
for the robberies there committed." 

The former statutes as to "hue and cry," because of the abuse 
and hardships resulting from the enforcement of the penalty 
against the hundred made liable for the failure to arrest the 
felon, were amended during the reign of Elizabeth, by 27 Eliz- 
abeth, c. 13, so as to make the inhabitants of the hundred where 
there was any negligence, in making the arrest, liable for a 
moiety of the damages, to be recovered by the clerk of the peace. 
(V Reeve's Hist. Eng. Law, pp. 355-361.) 



THE LAW IN SHAKESPEARE. 259 

P. Hen. It may be so; if he have robbed these men, 
He shall be answerable; and so, farewell."^ 

Robbery is the felonious and forcibly taking from the 
person of another, of any goods, or money, either by vio- 
lence or putting him in fear of violence.^ At the com- 
mon law, robbery was therefore, the larceny from the per- 
8on, accomplished by putting the person robbed in fear 
of violence.^ Falstaff and his companions had commit- 
ted robbery upon the persons of the travelers in unlaw- 
fully taking from their persons the three hundred marks, 
mentioned by the Sheriff and under the law they were 
subject to indictment therefor. 

Sec. 225. Tripartite agreements. — 

"Mort. . . . And our indentures tripartite are drawn : 
Which being sealed interchangeably, 
(A business that this night may execute) etc."* 

A tripartite agreement or contract is one consisting of 
three parts, intended for as many persons, as where three 
persons execute the contract and each takes a copy, which 

» 1' Henry IV, Act II, Scene IV. 

■4 Bl. Comm. 243. 

^ Sherwood Cr. Law, 200. 

In 2' Henry IV, the Chief Justice is enquiring about Falstaff, 
and his connection with the robbery on Gadshill, as follows: 

"Ch. Jus. He that was in question for the robbery? 

Atten. He, my lord; but he hath since done good service at 
Shrewsbury," etc. (Act I, Scene III.) 

In the XXXVI' Sonnet, after confessing that the plea of sen- 
suality is properly urged against himself, the Poet said: 
"That I an accessary needs must be 

To that sweet thief which sourly robs from me." (13, 14.) 
The Poet forgives the "gentle thief" who steals his strength 
through sensuality, in the XL' Sonnet, in these lines: 
"I do forgive thy robbery, gentle thief, 
Although thou steal thee all my poverty." (9, 10.) 

*!' Henry IV, Act III, Scene I. 



260 THE LAW IN SHAKESPEARE. 

is made and marked as the original.^ The term also 
applies to a deed or indenture, as here used and as such 
an instrument had to be sealed, it was speaking in strict 
legal parlance to refer to the execution of such indenture 
as ''being sealed interchangeably." 

Sec. 226. Enfeoffment. — 

"K. Hen. . . . The skipping king, he ambled up and 
down, 
With shallow jesters and rash bavin wits, 

• •••••• 

Grew a companion to the common streets, 
Enfeff'd himself to popularity."^ 

A "feoffment" or "enfeoffment," at common law, was 
a gift of any corporeal hereditament to another and it 
operated by transmutation of possession, it being essential 
that the seisin be passed. In other words, it was the 
instrument or deed of conveyance, by which the heredita- 
ment passed, either by investiture or by livery of seisin.^ 

This was one of the earliest modes of conveyance used at 
common 'law and while it signified originally the grant 
of a feud or fee, it later came to signify the grant of an 
inheritance in fee, the character of the conveyance being 
devoted rather to the perpetuity of the estate granted 
than to the feudal tenure.* The King here intimates that 
King Richard had devoted himself to making himself 
popular, without reservation of the principles of man- 
hood, or anything else. In the Poet's words he had 
literally, "Enfeff'd himself to popularity." 

* Bouvier's Law Dictionary; Lawson on Con. (2d ed.) 415. 
= 1' Henry IV, Act III, Scene II. 

'Tiedeman, R. P. (3d ed) Sees. 24, 536. 

* I Reeve's Hist. Eng. Law, 90. 

The conveyance by feoffment has become obsolete in England 
now and in this country has not been used in practice. Tiede- 
man, on R. P. (3d ed.), Sees. 24, 536; Bacon, Abr. ; Sheppard, 
Touch, c. 9; Coke, Litt. 9; 4 Kent's Comm. 467. 



THE LAW IN SHAKESPEARE. 261 

Sec. 227. Alien. — 

"K. Hen. . . Thy place in council thou hast rudely lost, 
Which by thy younger brother is supplied, 
And art almost an alien to the hearts 
Of all the court and princes of thy blood. "^ 

An alien is a foreigner, or one of foreign birth and in 
England one born out of the allegiance of the king was 
deemed a foreigner.^ An alien in most countries 5s 
barred from holding real estate either by descent or by 
operation of law and, at common law, if he purchased 
land, he was liable to be dispossessed, upon office found.^ 

Sec. 228. Factor. — Broker. — 

"P. Hen. . Percy is but my factor, good my lord. 
To engross up glorious deeds on my behalf; 
And I will call him to a strict account. 
That he shall render every glory up."* 

A factor is an agent, employed to sell goods or mer- 
chandise for his principal, for a compensation, commonly 
called factorage or commission.^ One of the first duties 
of a factor — like any one else standing in such fiduciary 
relation — is to render a just account to the principal of 
all his dealings for him, and to pay him the money he 
may receive for him.*' Prince Henry was clearly right 
when treating Hotspur as his factor, to say that "I will 
call him to a strict account." 



^r Henry IV, Act III, Scene II. 

- Bouvier's Law Dictionary 

^2 Kent's Comm. 50; 7 Coke, 25 a. Of course the disability of 
aliens is removed by treaty with the United States and by most 
of the different states in this country, by statute. 

*V Henry IV, Act III, Scene IL 

"Story, Agency, sec. 268; Paley, Agency, 243. 

*3 Chitty, Com. Law, 193; 2 Kent's Comm. (3d ed.) 622. 

Clarence tells King Edward, in 3' Henry VI: "Clar. In choos- 
ing for yourself, you show'd your judgment; Which, being shal- 
low, you shall give me leave, To play the broker in mine own 
behalf." (Act IV, Scene I.) 



262 THE LAW IN SHAKESPEARE. 

Sec. 229. Maiming. — 

''Wor. Your father's sickness is a maim to us. 
Hot. A perilous gash, a very limb lopp'd off."^ 

"Maim," in the criminal law, is to deprive a person of 
such part of his body as to render him less able in fight- 
ing or defending himself than he would otherwise have 
been, if not so deprived.^ 

The true meaning of the term is clearly implied by 
the verse quoted, as the absence and sickness of the Earl 
of Northumberland is compared to a vital part of the 
body necessary to be used in fighting and this meaning 

In the farce wherein Buckingham urges Gloster to accept the 
crown, in King Richard III, the Poet makes the former say: 
*'Buck. . . . Not as protector, steward, substitute. Or lowly 
factor for another's gain; .... In this just suit, come I 
to move your grace." (Act III, Scene VII.) 

Pandarus tells Troilus and Cressida, after ratifying their pre- 
contract of marriage: "Pan. Let all inconstant men be Troil- 
uses, all false women Cressids, and all brokers-between Pandars." 
(Act III, Scene II.) 

After discovery of Cressida's perfidy, Troilus tells Pandarus, 
who had brought them together, in Troilus and Cressida: "Tro. 
Hence, broker lackey: ignomy and shame pursue thy life, and 
live aye, with thy name." (Act V, Scene XI.) 

lachimo, in Cymbeline, refers to himself, in his talk with 
Imogen, in falsely reporting a purchase for the Emperor, wherein 
he had acted as "the factor for the rest." (Act I, Scene VII.) 

Polonius tells Ophelia, in Hamlet: 
''Pol. . . In few, Ophelia, 

Do not believe his vows: for they are brokers. 
Not of that die which their investments show. 
But mere implorators of unholy suits, 
Breathing like sanctified and pious bonds, 
The better to beguile." (Act I, Scene III.) 

The maid, in A Lover's Complaint, complained of her false 
lover that "deceits were gilded in his smiling," and . . "vows 
were ever brokers to defiling." (172, 173.) 

^ 1' Henry IV, Act IV, Scene I. 

-Chitty, Cr. Law, 244; Sherwood Cr. Law, Ch. 23. 



THE LAW IN SHAKESPEARE. 263 

is enlarged upon by Hotspur, as likening him lo ''a very 
limb lopp'd off." 

Sec. 230. Reprisal. — 

"Hot. ... I am on fire, 

To hear his rich reprisal is so nigh."^ 

A reprisal is the forcible taking of property or other 
thing from one nation, by another, in satisfaction for an 
injury committed by the former on the latter.^ The re- 
prisal mentioned here is in the nature of a general reprisal, 
which is made by virtue of a commission delivered to 
officers or citizens of the aggrieved state or nation, direct- 
ing them to take the person or property belonging to the 
offending state or nation, wherever it can be found.^ 

Sec. 231. Counterfeit. — 

"Fal. . . . Counterfeit? I lie, I am ho counterfeit: 
To die is to be a counterfeit ; for he is but a counter- 
feit of a man, who has not the life of a man : but to 
counterfeit dying, when a man thereby liveth, is to be 
no counterfeit, but the true and perfect image of life 
indeed."* 

In the criminal law, a counterfeit is something made 
false, in the semblance of that which is true.^ To make 

Cade thus refers to the kingdom, in 2' Henry VI: "Cade. . . 
thereby is England maimed, and fain to go with a staff," etc. 
(Act IV, Scene II.) 

The earl of Surrey, tells Cardinal Wolsey, in King Henry VIII: 
"Sur. First, that, without the king's assent or knowledge, you 
wrought to be a legate; by which power, you maim'd the juris- 
diction of all bishops." (Act III, Scene II.) 

Upon being assaulted by lago, in Othello, Roderigo cries: "I 
am maim'd forever: — Help, ho." (Act V, Scene I.) 

^ 1' Henry IV, Act IV, Scene I. 

'1 Bl. Comm. c. 7. 

'Wheaton, Int. Law; 2 Vattel, Law Nations, sec. 342. 

*!' Henry IV, Act V, Scene IV. 

^Viner, Abr. Counterfeit. 



264 THE LAW IN SHAKESPEARE. 

.something counterfeit always implies a fraudulent intent, 
which of course is a necessary ingredient of every criminal 
act. The distinction noted by FalstafF is based upon the 
very essential definition of a criminal counterfeit, for a 
live man would not bear the same semblance as a dead 
man, as the essential of life would be present and only a 
dead man could be a true counterfeit of one without life, 
in the true sense of a legal counterfeit. 

Prince John thus addressed the archbishop of York, in 2' 
Henry IV: "P. John. . . . You have taken up, under the 
counterfeited zeal of God, The subjects of his substitution, nay- 
father." (Act IV, Scene II.) 

Gower said of Pistol, in Henry V: "Why, this is an arrant 
counterfeit rascal; I remember him now; a bawd, a cut-purse." 
(Act III, Scene VI.) 

Gower said to Pistol, in Henry V: "Gow. Go, go — you are a 
counterfeit cowardly knave." (Act V, Scene I.) 

Speaking of Margaret, Suffolk said, in 1' Henry VI: "Suff. As 
plays the sun, upon the glassy streams. Twinkling another coun- 
terfeited beam. So seems this gorgeous beauty to mine eyes." 
(Act V, Scene III.) 

Richard says of Clifford, in 3' Henry VI: "Rich. . . O, 
would be did; and so, perhaps, he doth; 'Tis but his policy to 
counterfeit." (Act II, Scene VI.) 

Buckingham tells Gloster, in King Richard III: "Buck. Tut, 
I can counterfeit the deep tragedian." (Act III, Scene V.) 

Thersites says to Patroclus, in Troilus and Cressida: "Ther. 
If I could have remembered a gilt counterfeit, thou would'st 
not have slipped out of my contemplation." (Act II, Scene III.) 

Timon of Athens tells the Poet and Painter: "Tim. Thou 
draw'st a counterfeit, best in all Athens; thou art, indeed, the 
best: thou counterfeit'st most lively." (Act V, Scene I.) 

Coriolanus tells the citizens from whom he seeks support: 
"Cor. . . and since the wisdom of their choice is rather to have 
my hat than my heart, I will practice the insinuating nod, and be 
off to them most counterfeitly; that is sir, I will counterfeit the 
bewitchment of some popular man, and give it bountifully to the 
admirers." (Act II, Scene III.) 

Romeo asks Benvolio and Mercutio: "Good-morrow to you 
both. What counterfeit did I give you?" (Act II, Scene IV.) 



THE LAW IN SHAKESPEARE. 265 

Sec. 232. Death by judicial sentence. — 

"King. Bear Worcester to the death, and Vernon too; 
Other offenders we will pause upon."^ 

The king's orders respecting the fate of the Earl of 
Worcester and y^iv Richard Vernon, was equivalent to a 
direction to place them upon speedy trial for their treason 
and in a summary manner accomplish their death by 
judicial sentence.^ The trials of such prisoners were 
hardly trials, even in names, because when the victorious 
army or the head of such an army desired to accomplish 
the death of any of the prisoners taken, at this period, it 
was undertaken and carried out, with but little delay. • 



U' Henry IV, Act V, Scene V. 

^Rolfe's First Part of King Henry IV, p. 256, notes. 

Cloten says to Guiderius, in Cymbeline: 
"Die the death: 

When I have slain thee with my proper hand, 
I'll follow those that even now fled hence." 

(Act IV, Scene II.) 



CHAPTER XIX. 

"SECOND PART OF KING HENRY THE FOURTH." 

Sec. 233. Accomplices. 

234. Assurance — Security. 

235. Punishment by the stocks. 

236. Infamy. 

237. Laws of Land-service. 

238. Action. 

239. Eating flesh contrary to law. 

240. "Faitors." 

241. Inns of Court. 

242. A "rotten case" — No Counsel in. 

243. Riot. 

244. "A friend i' the Court." 

245. Committment for Contempt of Court. 

246. Law no respector of persons. 

247. Falstaff's Commitment to prison. 

Sec. 233. Accomplices. — 

"il/or. The lives of all your loving complices 

Lean on your health ; the which, if you give o'er 
To stormy passion, must perforce decay."^ 

An accomplice is one who is, in some way, concerned 
in the commission of a crime, but not as principal.^ In its 
broader sense the term includes all persons concerned in 
the commission of the crime, either as principals or acces- 
sories,^ before or after the fact and this is the sense in 
which it is used here, the word "complices," being a mere 
contraction of the word accomplices. 



^2' Henry IV, Act I, Scene I. 
^ 1 Russell, Crimes, 21. 



4 Bl. Comm. 331. 



A Messenger, thus greets the French Dauphin and soldiers, in 
1' Henry VI: "Mess. Success unto our valiant general, and 
happiness to his accomplices." (Act V, Scene II.) 

(266) 



THE LAW IN SHAKESPEARE. 267 

Sec. 234. Assurance — Security. — 

"Page. He said, sir, you should procure him better assur- 
ance than Bardolph : he would not take his bond and 
yours; he liked not the security. 

Fal. ... To bear a gentleman in hand and then 
stand upon security: the whoreson smooth-pates do 
now wear nothing but high shoes and a bunch of keys 
at their girdles ; and if a man is thorough with them, 
in honest taking up, then they must stand upon — 
security. I had as lief they put rats-bone in my 
mouth, as offer to stop it with security. I looked he 
should have sent me two and twenty yards of satin, 
as I am a true knight, and he sends me security. 
Well, he may sleep in security."' 

Assurance is here used in the sense of indemnity or 
insurance and not as an instrument of conveyance or war- 
ranty of property conveyed, as it is more properly used, in 
a strictly legal meaning.- A security is that which ren- 
ders a matter sure or certain as an instrument which 
guarantees the performance of a certain contract.^ It is 
used, also, to apply to a person who engages to see to the 
performance of another's agreement* and this is the sense 
in which Falstaff uses it in the above lines. 



Young Clifford, thus urges his father, in 2' Henry VI: 
"Y. Cliff. And so, to arms, victorious father. 

To quell the rebels and their 'complices." (Act V, Scene I.) 

Edward thus replies to Warwick, in 3' Henry VI: "K. Edw. 
Yet, Warwick, in despite of all mischance. Of thee thyself, and 
all thy 'complices, Edward will always bear himself as king." 
(Act IV. Scene III.) 

'2' Henry IV, Act I, Scene II. 
-2 Bl. Comm. 294. 
^ Bouvier's Law Dictionary. 
*3 Blackf. (Ind.) 431. 

Lord Scroop remonstrated against the liberation of a prisoner. 
King Henry V, asked to be liberated, as follows: ''Scroop. That's 
mercy, but too much security: Let him be punished. Sovereign, 
lest example, breed, by his sufferance, more of such a kind." 
(Act II, Scene II.) . 



268 THE LAW IN SHAKESPEARE. 

Sec. 235. Punishment by the stocks. — 

"Ch. Jus. To punish you by the heels, would amend the 
attention of your ears; and I care not, if I become 
your physician. 

Fal. I am as poor as Job, my lord; but not so patient; 
your lordship may minister the potion of imprison- 
ment to me, in respect of poverty ; but how I should 
be your patient to follow your prescriptions, the wise 
may make some dram of a scruple, or, indeed, a 
scruple itself."^ 

The Chief Justice here clearly threatens Falstaff with 
the punishment by use of the stocks for his running away, 
after the warrant for his arrest for the Gads-hill rob- 
bery and Falstaff, by a covert threat, indicates to the Chief 
Justice that if he is so punished, the Prince of Wales would 
no doubt interfere to effectuate his escape. 

''Stocks" was an apparatus of wood, much used, in 
former times, for the punishment of offenders against the 
English laws. The culprit was placed on a bench with his 
feet fastened in holes, under a movable board and he was 
allowed to remain there according to the severity of the 
punishment desired to be inflicted. In 1350, (25 Edw. 
Ill) provision was made for application of the stocks to 
unruly artificers and in 1376 the Commons prayed the 
King to establish stocks in every village in the kingdom. 
It became a common method of punishment about the time 
of the Poet and was used in conjunction with the whip- 
ping post, frequently, about that period, for the punish- 
ment of such trifling offenders as Falstaff and his com- 
panions.^ 

In excusing his refusal of a loan to Timon of Athens, Lucullus 
said to Flaminius: "Lucul. . . . thou knowest well enough, 
although thou comest to me, that this is no time to lend money; 
especially upon bare friendship, without security." (Act III, 
Scene I.) 

^2' Henry IV, Act I, Scene 11. 

^ III Reeve's History Eng. Law, 345. 



THE LAW IN SHAKESPEARE. 269 

Volumnia tells Coriolanus, in her appeal for Rome, before his 
tent: "Vol. There is no man in the world more bound to his 
mother; yet here he lets me prate, like one i'the stocks." (Act V, 
Scene III.) 

The process whereby the duke of Cornwall and his wife Regan, 

placed the Earl of Kent in the stocks, in King Lear, is described 

as follows: 

"Corn. Fetch forth the stocks, ho: 

You stubborn ancient knave, you reverend braggart, 
We'll teach you — 

Kent. Sir, I am too o,ld to learn; 

Call not your stocks for me; I serve the king. 
On whose employment I was sent to you: 
You shall do small respect, show too bold malice 
Against the grace and person of my master. 
Stocking his messenger. 

Corn. Fetch forth the stocks: 

As I've life and honour, there shall he sit till noon. 
(Stocks brought out.) 

Com. This is a fellow of the self-same col 

Our sister speaks of: — Come, bring away the stocks. 

Glo. Let me beseech your grace not to do so: 
. . . . your purpos'd low correction 
Is such, as basest and contemned'st wretches. 
For pilferings, and most common trespasses. 
Are punish'd with: the king must take it ill. 
That he's so slightly valued in his messenger. 
Should have him thus restrain'd. 

Corn. I'll answer that. 

Reg. My sister may receive it much more worse, 
To have her gentleman abus'd, assaulted. 
For following her affairs. — Put in his legs. — 

(Kent is put in the stocks.)" 
(Act II. Scene IV.) 

The Fool tells Kent: "An thou had'st been set i'the stocks 
for that question, thou had'st well deserved it." 

Kent asks the Fool: "Where learned you this, fool?" And he 
replies: 

"Fool. Not i'the stocks, fool." And when Lear appears, he 
asks: "Lear. Who put my man i'the stocks?" (Act II, Scene 
IV.) 



270 THE LAW IN SHAKESPEARE. 

Sec. 236. Infamy.— 

"Ch. Jus. Well, the truth is, Sir John, you live in great 

infamy. 
Fal. He that buckles him in my belt cannot live in 

less."i 

Infamy, at common law, was the condition produced 
by the conviction of crime and the loss of honor, which 
was held to render the infamous person incompetent as a 
witness.^ A man, for instance, who was guilty of an 
offense inconsistent with the fundamental principles of 
honesty and humanity, was called an infamous person, 
and the law considered his oath of no weight, in a court 
of justice, because he was unworthy of belief.^ The Chief 
Justice here accused Falstaff of leading an idle, trifling, 
swindling, fraudulent existence, which made him an 
infamous person,* or one unworthy of respect. 

Sec. 237. Laws of land-service. — 

"Ch. Jus. I sent for you, when there were matters against 
you for your life, to come speak with me. 

Fal. As I was then advised by my learned counsel in the 
laws of this land service, I did not come."^ 

Falstaff here refers to his knight service, as a soldier, 
under the king and the advice given him as to his exemp- 
tion from answering to the civil authorities, while engaged 
in such sei-vice. Military service, under the feudal sys- 
tem, was evidently ''this land service" referred to, for 



1 o> 



2' Henry IV, Act I, Scene II. 
^Gilbert Evidence, 256. 
^Coke, Litt. 6; 2 Rolle, Abr. 886. 
*Coke, Litt. 6. 

Queen Margaret is made to say, of Gloster's death, in 2' Henry 
VI: 

"0. Mar. . . Tliis get I by his death: Ah, me, unhappy; 

To be a queen and crown'd with infamy." (Act III, Scene II.) 
"2' Henry IV, Act 1, Scene II. 



THE LAW IN SHAKESPEARE. 271 

under the feudal tenure, when the lord called upon the 
knights to render such service, in support of the king, 
they were compelled to do so and certain exemptions 
applied to them when so engaged. The sovereign, in 
England had authority, in time of war, by articles of 
war, to dispose of all crimes not specified by military law, 
and to assess all punishments not reaching to death or 
mutilation^ and Falstaff here attempts to hide behind this 
authority as a cloak to protect him from his failure to 
answer to the civil authority. 

Sec. 238. Action.— 

"Host. Master Fang, have you entered the action? 
Fang. It is entered."^ 

In practice, an "action" is the formal demand of one's 
rights, from another person, made and insisted upon, in 
a formal manner, in a court of justice.^ This is the kind 
of an action, these lines refer to, for Hostess Quickley had 
sued Falstaff and wanted the officer to arrest him, at a 
time when the attachment of the person was a proper pro- 
ceeding upon such causes of action for debt and to redress 
the wrongs of which she had made complaint.^ 

Sec. 239. Eating flesh contrary to law. — 

"Fal. . . . Marry, there is another indictment upon 
thee, for suffering flesh to be eaten in thy house, con- 
trary to law; for the which, I think, thou wilt howl."'^ 

^Benet, Military Law; Tyler, Military Law. 
^2' Henry IV, Act II. Scene I. 
^Bracton, 98b; Coke, 2' Inst. 40; Coke, Litt. 289. 
*3 Bl. Comm. 280; 4 Bl. Comm. 283. 

Falstaff persuades the Hostess to withdraw her action against 
him, in this same play, as follows: "Fal. . . . Come, an it 
were not for thy humors, there is not a better wench in England. 
Go, wash thy face and draw thy action." (Act II, Scene II.) . 

= 2' Henry IV, Act II, Scene IV. 



272 THE LAW IN SHAKESPEARE. 

There were various statutes enacted during the reign of 
Elizabeth, as well as during the reign of James I forbid- 
ding boarding house keepers and victualers from fur- 
nishing flesh to be eaten in their houses, during the Lenten 
season^ and this reference is, no doubt, to one of these 
statutes, which, in the United States, would be held to be 
an unconstitutional enactment, because a sumptuary law. 

Sec. 240. "Faitors."— 

"Pistol. I'll see her damned first ; to Pluto's damned lake, 
by this hand, to the infernal deep, with Erebus and 
tortures vile also. Hold hook and line, say I. Down, 
down, dogs: down, faitors: Have we not Hiren here?"^ 

The word "faitors," as used in an old statute of the reign 
of Richard II, is synonymous with evil-doers.^ Standing 
alone, it would seem to be a contraction of the Latin word 
factors, meaning doers ; but by the use of the term in this 
statute, it is probable that Shakespeare used it as a term 
of reproach, from the preceding word used, in this same 
connection, so he must have been familiar with this 
statute. 

Sec. 241. Inns of court. — 

"Shal. He must then to the inns of court shortly: I was 
once of Clement's-Inn ; where, I think, they will talk 
of mad Shallow vet."'* 

"Inns of Court" is the English name for those volun- 
tary associations or societies, which have the exclusive 
right of calling persons to the English Bar. There are 
four such societies in London, i. e., the inner temple, the 
middle temple, Lincoln's inn and Gray's inn, and each of 
these inns possesses several smaller inns, — no doubt like 

^Rolfe's Second part of King Henry IV, p. 208, notes; V Reeve's 
History Eng. Law. 

^2' Henry IV, Act II, Scene IV. 

''Ill Reeve's History Eng. Law; Rolfe's Second part of King 
Henry IV, p. 201, notes. 

* 2' Henry IV, Act III, Scene IL 



THE LAW IN SHAKESPEARE. 273 

that mentioned in the above verse — which are mere col- 
lections of houses or chambers, as Clifford's inn, New inn, 
Furnival's inn, etc. The four inns are governed by a 
board, called the ''benchers," who are generally learned 
lawyers, and local habitations are occupied exclusively by 
barristers and are a source of great wealth. 

Each inn is self-governing and independent of the oth- 
ers, but an educational qualification is imposed on the stu- 
dents and other rules adopted for the admission into the 
various inns. 

The existence of these inns dates to an early day in Eng- 
lish history. It is beyond dispute that the Temple was 
inhabited by a law society in the reign of Edward III, for 
on acquisition of the property in 1324, the same was leased 
to divers professors of law, at a rental of 10 lb. per annum 
and these professors came from Thavies Inn, in Holborn.^ 
When the inheritance of this house again fell to the crown 
in the reign of Henry VIII, it was again leased to the 
lawyers by this monarch and they continued tenants of 
the crown until the sixth year of James I, when a new 
lease was made for the benefit of the students and pro- 
fessors of the law.- 



^Dugd. Or. Jur. 145. 

= III Reeve's Hist. Eng. Law, pp. 346, 347. 

Professors of law resided in Gray's inn, during the reign of 
Edw. Ill, under a lease from Lord Grey, of Wilton, and Henry 
VIII granted a fee-farm lease of the house to them, for 6 lbs. 13 s. 
4d. per annum. And in 18' Edw, III, Lady Clifford granted a 
demise of Clifford's inn, near Fleet street, to the law societies. 
III. Reeve's Hist. Eng. Law, p. 347. 

Falstaff, referring to his association with Justice Shallow, at 
the inns of court, said: "Fal. I do remember him at Clement's 
Inn, like a man made after supper of a cheese-paring, when he 
was naked he was, for all the world, like a forked radish." 
(2' Henry IV, Act III, Scene II.) 

Referring further along, to his experience at the inns of court, 
Shallow, is made to say: "SJial. . . . you had not four such 
swing-bucklers in all the inns of court again: and I may say to 



274 THE LAW IN SHAKESPEARE. 

Sec. 242. A rotten case. — No Counsel in. — 

"Mow. "Well, by my will, we shall admit no parley. 
West. That argues but the shame of your offense : a rot- 
ten case abides no handling."^ 

This reply to Mowbray, by Westmoreland evidently re- 
fers to the fact that, at common law, unless one had a 
meritorious case, no counsel would be assigned and no 
defense considered, in the formal way of a trial. 

The common law denied the privilege of counsel on 
trials of felony or treason, while in the lesser offenses, 
counsel was awarded.- In the trial of the Duke of Nor- 
folk, in the reign of Elizabeth, for treason, he made a 
touching appeal to the Court, for counsel, but it was in 
vain, as his case was deemed "a rotten case."* 

Jeffries said to Sidney, in reply to a demand for coun- 
sel : "If you assign us any particular point of law, if the 
court think it such a point as may be worth debating, you 
shall have counsel."* And on the trial of Cornwallis, 
Lord Nottingham said, with reference to counsel: "No 
other good reason can be given why the law refuses to 
allow the prisoner at the bar counsel, in matters of fact, 
where life is concerned, excepting this, that the evidence 
by which he is condemned ought to be so very evident and 

you we knew where the bona-robas were; and had the best of 
them all at commandment." (2' Henry IV, Act III, Scene II.) 

Cade gives orders to his followers: "Cade. So, sirs: — Now go 
some and pull down the Savoy; others to the inns of court; 
down with them all." (2' Henry VI, Act IV, Scene VII.) 

' 2' Henry IV, Act IV, Scene I. 

^1 Chitty, Cr. Law, 409; 2 Hawk, c. 39. 

^ 1 How. St. Tr. 965. After narrating the treatment he had 
received, Norfolk said: "With reverence and humble submission, 
I am led to think I may have counsel. And this I show, that you 
may think I move not this suit without any ground. I am 
hardly handled; I have had short warning and no books." 1 How. 
St. Tr. 965. 

*9 How. St. Tr. 834. 



THE LAW IN SHAKESPEARE. 275 

SO plain, that all the counsel in the world should not be 
able to answer it."^ 

So, here, in denying any parley, as construed by West- 
moreland, the case was so clear as to "abide no handling." 

Sec. 243. Riot.— 

"K. Hen. . . When that my care could not withhold 
thy riots, 
What wilt thou do, when riot is thy care?"^ 

A riot, at common law, was a tumultuous disturbance 
of the peace by three or more persons, assembling together 
with a mutual intent to assist each other against all who 
should oppose them, in the execution of some private enter- 
prise, and the execution or accomplishment of such enter- 
prise, in such a violent and turbulent manner, as to cause 
terror or disturbance to the people of a neighborhood, re- 
gardless of whether the act accomplished was lawful or un- 
lawful.^ 

The King here, of course, refers to such unlawful enter- 
prises as that at Gads-hill and other such escapades, ac- 
complished by the Prince, Falstaff, Poins, Bardolph and 
their companions, and the meaning is plainly to be de- 
rived from the language used, that if, when he was so 
careful to dissuade him from such conduct, without suc- 
cess, what would result, when he had only his own inclina- 
tions to follow without hindrance, with a keen desire to 
accomplish such unlawful enterprises. 



17 How. St. Tr. 149. 

= 2' Henry IV, Act IV, Scene IV. 

^Coke, 3 Inst., 176; 4 Bl. Comm. 146. 

The subject of riots occasioned a statute during the reign of 
Henry IV (13 Henry IV, c. 7) and whether to suppress the 
tumults caused by the wayward Prince and his followers, or for 
other purposes, during this reign it was enacted that the sum- 
mary method theretofore in force for the suppression of rioters, 
be even more enhanced, by giving to any two or more justices 
of the peace, of any county, with the sheriff or under sheriff. 



276 THE LAW IN SHAKESPEARE. 

Sec. 244. A friend in the court. — 

"Shal. Yes, Davy. I will use him well; a friend i' the 
court is better than a penny in purse."^ 

This is a lawyer-like suggestion that a cause is better 
safeguarded when the incumbent of the judgment seat is 
a friend of the party whose rights are to be decided.^ Of 
course lawyers, generally, recognize that this kind of in- 
fluence has very little to do with the decision of lawsuits, 
for according to correct standards, such things enter but 
little into the consideration of causes to be decided in 
courts of justice, but at the same time, as the incumbents 
of the judgment seat are but men, with human weak- 
nesses and emotions, the fact that a friend is on the bench 
is not to be disparaged, in the selection of a forum for the 
consideration of the rights of a litigant. Shallow here 
intimates that it is far better than money to have "a. friend 
i' the court," and the Poet is right in putting such a speech 
in the mouth of one called Shallow. 



authority to arrest and take down the evidence against them 
and by this record such offenders were to stand convicted, the 
same as a presentment by twelve men. And this statute was also 
enlarged, during the reign of Henry V, by giving the chancellor 
authority to appoint a commission to enquire into any failure 
on the part of the justices or sheriffs to discharge their duty, 
under the statute of 13' Hen. IV, c. 7. Ill Reeve's History Eng. 
Law, pp. 432, 455. 

Speaking of the former life of Henry V, the Archbishop of 
Canterbury, in Henry V, (Act I, Scene I) is made to say: 
''Cant. . . his addiction was to courses vain; his companies 
unletter'd, rude and shallow; His hours fill'd up with riots, ban- 
quets, sports; and never noted in him any study, any retire- 
ment, any sequestration from open haunts and popularity." 

^ 2' Henry IV, Act V, Scene I. 

^ It is probable, as suggested by Doctor Rolfe, that this expres- 
sion is taken from the old Romaunt of the Rose, wherein it is 
said : 

"For frende in courte air better is 
Than penny is in purse, certis." 

(Rolfe's 2' Henry IV, p. 242. notes.) 



THE LAW IN SHAKESPEARE. 277 

Sec. 245. Commitment for contempt of court. — 

"Ch. Jus. I then did use the person of your father; 
. The image of his power lay then in me : 
And, in the administration of his law, 
Whiles I was busy for the commonwealth, 
Your highness pleased to forget my place, 
The majesty and power of law and justice, 
The image of the king, whom I presented. 
And struck me in my very seat of judgment; 
Whereon, as an offender to your father, 
I gave bold way to my authority, 
And did commit you."^ 

To ''commit" a person, is to send him to prison by vir- 
tue of a lawful warrant or order.^ The Chief Justice of 
England, as here explained, in the enforcement of the 
law, did his duty, in the name of and as the representative 
of the King, for the protection of his own and the rights 
of the kingdom's subjects. In this sense, an infraction 
of the laws of England was regarded as an infraction of 
the personal rights of the King, and when the majesty 
and authority of the law was attacked, by any one, as 
here described, it would be the duty of the person occupy- 
ing the judgment seat, to commit the person, as for a con- 
tempt of court, as these lines show was done in this in- 
stance.^ 



*2' Henry IV, Act V, Scene II. 
M Chitty, Cr. Law, 110. 

^ Bacon, Abr., Courts; Rolle, Abr., 219; 8 Coke, 38b; 1 Kent's 
Comm. 236. 

Under the Plantagenets and Tudors, a Chief Justice of England 
could be removed, like any other officer of the Crown, (Verplanck) 
and hence the King's magnanimous act in retaining Gascoigne, is 
the more noteworthy. (Rolfe's 2' Henry IV, pp. 245, 247, notes.) 

Of the assault here referred to, upon Chief Justice Gascoigne — 
by the Prince — Reeves said: "The youthful sallies of this prince 
have furnished juridical history, with an anecdote that shows 
him to have once been a contemner both of justice and those 
who administered it." But of this language, concerning Henry 
V, Mr. Finlason observes: "This is hardly just to the character 



278 THE LAW IN SHAKESPEARE. 

Sec. 246. Law no respecter of persons. — 

"King. Happy am I, that have a man so bold, 
That dares do justice on my proper son: 
And not less happy having such a son, 
That would deliver up his greatness so. 
Into the hands of justice."^ 

These lines have reference to the impartial enforcement 
of the laws without respect to persons, although the per- 
son against whom the law is enforced shall be the son of a 
king. This quotation of the words of the King's father, 
shows that the King himself, realized the necessity of a 
strict and impartial enforcement of the laws for the pro- 
tection of his own rights. 

Justice, being in itself, confined to things simply good 
or evil, in its enforcement each man must take such pro- 
portion as he ought to take, regardless of the person upon 
whom the law operates, for in no other way can distribu- 
tive justice operate, in the distribution of rewards or 
punishments according to the merits of each person, with- 
out inequality or partiality.^ 



of this king, for, according to the version of the story commonly- 
given in history, the offence, that of striking a judge, was com- 
mitted by the prince, and nobly attoned for by the king, seeing 
that on his accession he received with marked respect the judge — 
Chief Justice Gascoigne — whom he is said to have struck." (Ill 
Reeve's History, Eng. Law, p. 458.) And this is as the Poet 
presents it. 

King Henry V directs the duke of Exeter: "S". Hen. . . 
Uncle of Exeter, enlarge the man committed yesterday, that rail'd 
against our person." (Act II, Scene II.) 

Gloster was committed, in 2' Henry VI, as follows: ''Suff. 
. . . I do arrest you, in his highness name; and here commit 
you to my lord cardinal to keep, until your further time of trial." 
(Act III, Scene II.) 

Gardiner tells Cranmer, in King Henry VIII, in the Council 
Chamber: "Gar. . . 'Tis his highness pleasure. And our con- 
sent, for better trial of you, From hence, you be committed to 
the Tower." (Act V, Scene II.) 

» 2* Henry IV, Act V, Scene II. 

*2 Coke, 2' Inst., 56; Touillier, Droit, Civ. Fr. tit. prel. n. 5. 



THE LAW IN SHAKESPEARE. 279 

Sec. 247. Falstaff's commitment to prison. — 

"67i. Jus. Go carry Sir John Falstaff to the Fleet. 
Take all his company along with him."^ 

This is the Chief Justice's sentence against the "Fat 
Knight," that he be taken and incarcerated in the Fleet 
street prison, which takes its name from the river Fleet, 
that flows by it, and upon which a gate of the prison 
opened." The Fleet Prison was first used by those who 
were condemned by the Star Chamber, but it was used 
before its destruction, as a prison for all kinds of offend- 
ers.^ 



* 2' Henry IV, Act V, Scene V. 
'Rolfe's 2' Henry IV, pp. 254, 255, 
' Ante idem. 



CHAPTER XX. 

"KING HENRY THE FIFTH." 

Sec. 248. Seditious and insurrectionary bills. 

249. Bills against Ecclesiastics. 

250. Henry the Fifth's favor toward Ecclesiastics. 

251. Salic Law and Henry the Fifth's Claim to France. 

252. Lex terra salica explained. 

253. Ancestor. 

254. Impounding strays. 

255. Departments of Government working harmoniously. 

256. Adultery. 

257. Capital crimes. 

258. Motive for crime. 

259. Money paid in earnest. 

260. Divesting property rights. 

261. Respondeat superior not applicable to King and subject. 

262. Bearing testimony. 

263. Martial Law. 

Sec. 248. Seditious and insurrectionary bills. — 

"Cant. My lord, I'll tell you,— that self bill is urg'd, 
Which, in the eleventh year o' the last king's reign, 
Was like, and had indeed against us passed, 
But that the scrambling and unquiet time 
Did push it out of further question."^ 

This has reference to the attempt, on the part of those 
called heretics or Lollards, to stir up an insurrection 
against the established church, by laws forbidding the 
holding of lands and property by the church. Certain 
secretaries, during the reign of Henry IV, held language 
of the most extreme character and "described an estab- 
lished church as unlawful and told the people not to pay 
their tithes."^ The lords and commons presented a peti- 
tion to the king, stating that the secretaries excited the 

^ Henry V, Act I, Scene I. 

' III Reeve's History Eng. Law, p. 426. 

(280) 



THE LAW IN SHAKESPEARE. 281 

people to take away the possessions of the church, of which 
the clergy were as assuredly endowed, as the temporal lords 
were of their inheritances and that if these evil purposes 
were not resisted, they would move the people to take away 
the property of the latter and have all things in common, 
to the open commotion of the people and the subversion 
of the realm.^ 

Sec. 249. Bills against ecclesiastics. — 

"Cant. . . . If it pass against us, 

We lose the better half of our possession ; 

For all the temporal lands, which men devout 

By testament have given to the church, 

Would they strip from us ; being valued thus, — 

As much as would maintain, to the king's honour, 

Full fifteen earls, and fifteen hundred knights; 

Six thousand and tw^o hundred good esquires ; 

And, to relief of lazars, and weak age, 

Of indigent faint souls, past corporal toil, 

A hundred alms houses, right well supplied ; 

And to the coffers of the king beside, 

A thousand pound by the year; thus runs the bill."^ 

The growing devices practiced by ecclesiastics for the 
enlargement of the domains of the church, which orig- 
inally led to the enactment of the statute of mortmain and 
the later statute (15 Richard II, c. V)^ preventing the 
purchase of lands, for the use of the church, by lay cor- 

^III Rot. Pari. fol. 583; III Reeve's History Eng. Law, p. 427. 

The bill referred to, led to the passage of an act, of which Mr. 
Reeves said: "The meeting of heretics in their conventicles and 
schools are stigmatized in this act with the name of confederacies 
to stir up sedition and insurrection; the very pretence that had 
been made use of by the Romans against the primitive Chris- 
tians, and which had been adopted by the Romish church ever 
since, to suppress all opposition to inquiry into its errors." 
Ill Reeve's History English Law, p. 426. 

- Henry V, Act I, Scene I. 

='111 Reeve's History Eng. Law, 365. 



282 THE LAW IN SHAKESPEARE. 

porations, or others, for its benefit, led to the agitation and 
attempt to enact into statutory law, other edicts to limit 
the growing covetousness of the church, during the reign 
of Plenry V. During this period parliament was appre- 
hensive not only of heresy, but of communism, revolution 
and spoliation. 

An open revolt was threatened, about the time to which 
the Archbishop addresses himself, and the commons, in 
their address to the king, stated that "the insurgents at- 
tempted to destroy the faith, the king, the temporal and 
spiritual power and all manner of policy and law;" to 
which the king replied, that "they meant to destroy him, 
and the lords, to confiscate the possessions of the church, 
to secularize the religious orders, to divide the realm into 
confederate districts and to appoint a president of the com- 
monwealth."^ 

Sec. 250. Henry V's favor toward ecclesiastics. — 

"Ely. But what prevention? 

Cant. The king is full of grace and fair regard. 

Ely. And a true lover of the holy church."^ 

These lines indicate an accurate knowledge, by the Poet, 
of the history of the legislation favorable to the ecclesi- 
astics, during the early period of the reign of Henry V, 
as detailed by the histories of the statutes of this reign. 
Speaking of these acts. Reeves said: "The whole secular 
power seems, at the beginning of this reign, to have been 
made subservient to the ends of the prelates in suppressing 

^Wols, 385; Rot. Pari, iv, 24; Rym, ix, 89, 193; III Reeve's 
History Eng. Law, p. 427. 

It was the belief of this age that revolution was threatened 
and the statutes passed at this period, against the Lollards and 
heretics, were not the result of the agitation of the clergy alone, 
but also of the nobility and commonalty of the realm. (See, 2' 
Henry V, st. 1, c. vii.) 

== Henry V, Act I, Scene I. 



THE LAW IN SHAKESPEARE. 283 

the Lollards."^ In the preamble of the statute against 
the Lollards, they were treated as state criminals and peo- 
ple confederated to destroy the king; the justices and other 
peace officers, on taking their offices, were required to take 
an oath to use the power of their various offices to destroy 
such heresies ; they were made to suffer forfeiture of their 
goods, as in the case of felons, and heresy being a spiritual 
offense, wdthin ten days after their arrest they were de- 
livered to the holy church to be tried in accordance with 
its rules, and thus the intolerance and persecution of the 
church was given full sway.^ 

Sec. 251. Salic law and Henry V's claim to France. — 

"K. Hen. , . . My learned lord, we pray you to pro- 
ceed. 
And justly and religiously unfold. 
Why the law Salique, that they have in France, 
Or should, or should not, bar us in our claim. "^ 

The code of laws known as the salic law is a collection of 
the popular laws of the Salic or Salian Franks, committed 
to Avriting in barbarous Latin, in the 5' century. Several 
texts of this code are in existence, but because of the dark 
ages in which it had its origin, more or less mj^stery sur- 
rounds it. The code relates principally to the definition 
and punishment of crimes, but there is a chapter or por- 
tion of the code relating to the succession of salic lands, 
which was probably inserted in the law, at a later date. 
Salic lands, or terra salica, came to mean inherited land as 
distinguished from property otherwise acquired, but even 
in the 15' century, as the verse quoted indicates, there 
was but little known as to the origin or exact meaning; of 
this law. It was by a very doubtful construction that the 
salic law in the 14' century was held to exclude the suc- 



* III Reeve's History Eng. Law, p. 452. 
^ III Reeve's History Eng. Law, p. 453. 



Henry V, Act I, Scene II. 



284 THE LAW IN SHAKESPEARE. 

cession of females to the throne of France, but on the acces- 
sion of Phillip the Long, it was given this interpretation, 
and the fact that Edward III rested his claim to the throne 
on female succession no doubt led the French to place this 
meaning on the law and to adhere to it for all future time.^ 

Sec. 252. Lex terra salica explained. — 

"Cant. . . . There is no bar. 

To mako against your highness' claim to France, 

But this, which they produce from Pharamond, — 

In terrain Salicam. midieres ne'succedant, 

No tvoman shall succeed in Salique land: 

Which Salique land, the French unjustly gloze, 

To be the realm of France, and Pharamond 

The founder of this law and female bar. 

Yet their own authors faithfully affirm. 

That the land Salique lies in Germany, 

Between the floods of Sala and of Elbe : 

Where Charles the Great, having subdued the Saxons, 

There left behind and settled certain French; 

AVho, holding in disdain the German women, 

For some dishonest manners of their life. 

Establish'd there this law, to-ivit, no female 

Should be inheritrix in Salique land ; 

Which Salique, as I said, 'twixt Elbe and Sala, 

Is at this day in Germany call'd Meisen. 

Thus doth it well appear, the Salique law 

Was not devised for the realm of France : 

Nor did the French possess the Salique land 

Until four hundred one and twenty years 

After defunction of King Pharamond, 

Idly suppos'd the founder of this law. 

King Pepin's title, and Hugh Capet's claim. 
King Lewis his satisfaction, all appear 
To hold in right and title of the female : 
So do the kings of Frapce unto this day ; 



* Hessel's Lex Salica; Hallam's Europe in the Middle Ages. 

For Holinshed's exposition of this law, which is taken by the 
Poet, in the following verse, see Rolfe's King Henry the Fifth, 
p. 188, notes. 



THE LAW IN SHAKESPEARE. 285 

Howbeit they would liold up this Salique law 
To bar your highness claiming from the female ; 
And rather choose to hide them in a net, 
Then amply to imbare their crooked titles 
Usurp'd from you and your progenitors." ^ 

As stated here, the Frankish law did not in general ex- 
clude females but the succession to these Salique lands was 
confined to males, probably from the importance of pro- 
curing the military service, which the females could not 
render, and this law, while not in general in vogue in 
France, was invoked to bar the claim of the successors of 
Edward III to the French crown. The English have 
always been inclined to ridicule the rule excluding females 
from inheriting the throne of France, and Lord Bacon 
gives a purported colloquy between an Englishman and 
a Frenchman, wherein the Englishman construed the law 
to mean that succession was barred as to "the women them- 
selves, not of such males as claimed by women." And on 
being asked where this gloss was found, he replied: "I'll 
tell you, sir ; look on the backside of the record of the law 
Salique, and there you shall find it endorsed," implying, 
as Bacon concludes,^ that there was no such thing as the 
law Salique, but this land construction was a fiction. 

Sec. 253. Ancestor. — 

"Cant. . . . we, of the spirituality, 

Will raise your highness such a mighty sum, 
As never did the clergy at one time, 
Bring in to any of your ancestors."^ 



1 Henry V, Act I, Scene II. 
=• Apophthegms, No. 184. 

Mr. Davis, in his Law in Shakespeare, observes, in regard to 
the law Salique: "It was decreed by Pharamond and was part of 
the code of the law of the Salians, a people of Germany," (Page 
184) but history rather leads to the conclusion the Poet makes 
the Archbishop reach, that "Pharamond" was "idly suppos'd the 
founder of this law." 

'Henry V, Act I, Scene II. 



286 THE LAW IN SHAKESPEARE. 

An ancestor is one who has preceded another in a direct 
line of descent. In real property law, the word is used 
to indicate the person last seized of the estate, or a former 
possessor/ 

At the common law the word is understood to apply as 
well to the immediate parents of the person in being, as 
to those that are higher up, in the line of descent,- and 
this is the meaning to be given to the term as used here. 

Sec. 254. Impounding strays. — 

"Cant. She hath herself not only well defended, 
But taken and impounded as a stray. 
The King of Scots."^ 

Any domestic animal, which has left its inclosure or 
place of keeping is held to be a "stray," and at common 
law, a stray animal was apt to be impounded or taken up 
and placed in an inclosure called a pound, for safe keep- 
ing, until the damages and costs were paid.* 

Distress, at common law, w^as a remedy for the damages 
done by stray cattle feeding on land of the owner, and 
trodding down the grass, and the law authorizing the 
municipality to impound stray cattle is the outgrowth of 
this common law rule of property.^ 

The King of the Scots here, by the Archbishop, is 
likened to a "stray," who had been caught, damage 
feasant, and impounded for safe keeping. 



^ 2 Bl. Com. 201. 

= Bacon, Ahr.; 2 Bl. Com. 209; Cary, Litt, 45. 

The Duke of Exeter tells the French King, in Henry V: "Exe. 
And, when you find him evenly deriv'd from his most fam'd of 
famous ancestors, Edward the Third, he bids you then resign 
your crown and kingdom indirectly held from him, the native 
and true challenger." (Act II, Scene III.) 

^ Henry V, Act I, Scene II. 

* Webster's Dictionary, where these lines by the Poet are used 
to illustrate a "stray" and the word "impound." 
»3 Bl. Comm. 6; Coke, Litt. 142, 161. 



THE LAW IN SHAKESPEARE. 287 

Sec. 255. Departments of government working harmoni- 
ously. — 

"Exe. . . . government, though high and low, and 
lower, 
Put into parts, doth keep in one concent, 
CongTuing in a full and natural close. 
Like music." ^ 

The institution or institutions, by which a state or 
nation makes and carries out those rules of action neces- 
sary to enable men to live in a social state, are generally 
called the government of that state or nation.' According 
to the seat of the supreme power of the state or nation, the 
classification of the government necessarily differs, and 
Aristotle's classification of governments, in this way has 
been generally followed down to modern times.^ 

The different branches of government and the different 
departments of the several branches, such as the legisla- 
tive, executive and judicial, all having the same common 
object and end, — the proper enjoyment and regulation 
of the rights of the individual members of the social 
body, — the operation of the several departments ought 
to be harmonious so that they will "keep in one concent, 
congruing in a full and natural close, like music," for 
there is no better way of wording the harmonious whole 
that should obtain in the due enforcement of the powers 
of government, than this. 

Sec. 256. Adultery.— 

"Quick. . . . O Lord: here's corporal Nym's — now 
we shall have wilful adultery and murder commit- 
ted. Good lieutenant Bardolph, — good corporal, offer 



nothino; here." 



4 



^tJ 



Adultery is the voluntary sexual intercourse of a mar- 
ried person with another, other than the offender's hus- 

* Henry V, Act I, Scene II. 

^1 Bl. Comm. 389, 391; Vattel's Law of Nations. 
'Aristotle, Politics, v. ch. 9. 

* Henry V, Act II, Scene I. 



288 THE LAW IN SHAKESPEARE. 

band or wife/ If one of the parties is married and the 
other not, the crime of the former is adultery and that of 
the other is fornication.- The crime was not an indicta- 
ble offense, at common law, but is made so by statute.^ 
Of course, Hostess Quick does not properly use the term, 
as the offense could not be committed between two males, 
but she probably intended to say that there would be an 
assault and murder committed, unless someone interfered 
to separate Corporal Nym and Pistol, neither of whom, it 
seems was hard to hold, after active hostilities actually 
appeared to be threatened as a result of the "battle of 
tongues." 

Sec. 257. Capital crimes. — 

"K. Hen If little faults, proceeding oh dis- 
temper. 
Shall not be wink'd at, how shall we stretch our eye, 
When capital crimes, chew'd, swallow'd, and digested. 
Appear before us?"* 

A "capital crime" at common law, was one for which 
the punishment of death was inflicted.^ Treason was such 
a crime, and this reference, by the king, to the crimes that 
his advisers had been guilty of, was for the purpose of hav- 
ing them commit themselves, as to the punishment to 
be assessed for the petty offense then in question, which, 
by the king's analogous reasoning, would apply, a fortiori, 
to the "capital crime" they were jointly guilty of, which 



^ Bishop, Marriage and Div., sec. 415. 
^ Bouvier's Law Dictionary. 
= 4 Bl. Comm. 65. 

Maecenas tells Octavia, in Antony and Cleopatra: "Maec. Each 
heart in Rome doth love and pity you: Only the adulterous An- 
tony, most large in his abominations, turns you off." (Act III, 
Scene VI.) 

* Henry V, Act II, Scene II. 

'Sherwood's Cr. Law, Ch. 1; 2 Bl. Comm. 42; 1 Bishop, Cr. 
Law, 43. 



THE LAW IN SHAKESPEARE. 289 

had been ''cliew'd, swallowed and digested," or otherwise 
committed after full reflection and premeditation, which 
only added to the degree of the guilt. 

Sec. 258. Motive for crime. — 

"Cam. For me, — the gold of France did not seduce, 
Although I did admit it as a motive, 
The sooner to effect what I intended."^ 

"Motive" is the inducement, cause or reason why a 
given act is done.- In the criminal law, motive is always 
an essential element of the crime and the motive is always 



In Coriolanus, Sicinius refers to capital crimes, as follows: 
"Sic. Peace. We need not put new matter to his charge: 
What you have seen him do and heard him speak, 
Beating your officers, cursing yourselves, 
Opposing laws with strokes, and here defying 
Those whose great power must try him; even this, 
So criminal, and in such capital kind. 
Deserves the extremest death." (Act III, Scene II.) 

Capital punishment, by all governments, both ancient and 
modern, has been deemed to be within the legitimate power of 
government, but it is doubted, by theoretical writers, if such 
punishment is consistent with natural or Divine Law. As laws 
are enacted to protect society, it may be doubted if death should 
be inflicted except in cases where it is absolutely essential and 
when the law can be maintained in no other way.. This is the 
meaning given the offense as viewed by the speaker in the above 
verse, for he urges that the crime is "in such capital kind," that 
it "deserves the extremest death." (Boccacia, chap. 28.) 

In King Lear, Albany arrests Edmund as follows: "Stay yet; 
hear reason.- — Edmund, I arrest thee on capital treason." (Act 
V, Scene III.) 

Speaking of his father's death, in Hamlet, Laertes asks the 
King: "But tell me. Why you proceeded not against those feats. 
So crimful and so capital in nature," etc. (Act IV, Scene VII.) 

* Henry V, Act II, Scene II. 

- Bouvier's Law Dictionary; 1 Bishop's Cr. Law, sec. 221, et 
sub. 



290 THE LAW IN SHAKESPEARE. 

proper to be explained or looked into, in order to show 
the criminal intent with which the crime was committed/ 
The earl of Cambridge here, denies that the gold re- 
ceived from France furnished the motive for the crime of 
treason, he had confessed himself guilty of, although he 
had admitted this was the motive for his entering into 
the conspiracy to kill the king, but as he does not show 
an absence of criminal intent and freedom from wrong- 
doing, he consequently makes no legal excuse for his con- 
nection with the treasonable design. 

Sec. 259. Money paid in earnest. — 

"K. Hen. . . . You have conspir'd against our royal 

person, 
vToin'd with an enemy proclaim'd, and from his 

coffers, 
Receiv'd the golden earnest of our death. "- 

Money paid in "earnest," is a partial payment for the 
purpose of binding the bargain.^ Certain agreements for 
the sale of personal property are not legal unless some- 
thing in "earnest" is given to bind the contract,* and a 
payment of "earnest" gives the buyer the right to demand 
a performance of the contract.^ 

The King here speaks of his own death as the consid- 
eration for which the payment was made and after the 
conspirators had "receiv'd the golden earnest" of his 
death, they could not back down from the performance 
of the contract and were legally bound to kill him, as they 
had agreed to do, for the money paid them. 



^1 Bishop's Cr. Law. sec. 221; 1 Chitty, Cr. Law, 233; 8 Coke, 
146; 1 Greenleaf Evid. sec. 18; 9 Coke, 81a. 
- Henry V, Act II, Scene II. 
^2 Kent's Comm. 389. 

* Benjamin, on Sales, p. 161 ; Tiedeman, on Sales, sec. 71. ' 
^ Ante idem.; 2 Bl. Comm. 447. 

Timon of Athens, tells Phrymia and Timandra on their quest for 
gold from him: "Tim. More whore, more mischief first; I have 
given you earnest." (Act IV, Scene III.) 



THE LAW IN SHAKESPEARE. 291 

Sec. 260. Divesting property rights. — 

'^Exe. . . . He wills you, in the name of God Al- 
mighty, 
That you divest yourself, and lay apart 
The borrow'd glories, that, by gift of heaven, 
By law of nature, and of nations, 'long 
To him and to his heirs; namely, the crown. "^ 

Divest, being practically the same word as to devest, 
used at common law, as the Poet explains it in this verse, 
is the dispossession of one's rights, property or privileges, 
before enjoyed.- 

The realm of France is treated as belonging to King- 
Henry and his representative demands the immediate sur- 
render of the kingdom, in accordance with his rightful 
title, and this title is urged both according to the law of 
nations and that of nature, meaning his claim to the king- 
dom as the descendant of Edward III, who had established 
his right to the realm by force of arms, and lineal descent. 

Sec. 261. Respondeat superior not applicable to King 
and subjects. — 

"K. Hen. So, if a son, that is by his father sent about 
merchandise, do sinfully miscarry upon the sea, the 
imputation of his wickedness, by your rule, should be 
imposed upon his father that sent him : or if a serv- 
ant, under his master's command, transporting a 
sum of money, be assailed by robbers, and die in 
many unreconciled iniquities, you may call the busi- 
ness of the master the author of the servant's damna- 
tion: — But this is not so: the king is not bound to 
answer the particular endings of his soldiers, the 
father of his son, nor the master of his servant; for 
they purpose not their death, when they purpose 
their services. Besides, there is no king, be his cause 
never so spotless, if it come to the arbitrement of 
swords, can try it out with all unspotted soldiers. 
Some, peradventure, have on them the guilt of pre- 



> Henry V, Act II, Scene III. 
=■ Bouvier's Law Dictionary. 



292 THE LAW IN SHAKESPEARE. 

meditated and contrived murder; some, of beguiling 
virgins with the broken seals of perjury; some, mak- 
ing the wars their bulwark, that have before gor'd the 
gentle bosom of peace, with pillage and robbery. 
Now, if these men have defeated the law, and out- 
run native punishment, though they can outstrip men, 
they have no wings to fly from God : war is his beadle, 
war is his vengeance ; so that here men are punished, 
for before-breach of the kings laws, is now the kings 
quarrel : where they fear'd the death, they have borne 
life away ; ajid where they would be safe, they perish : 
Then if they die unprovided, no more is the king 
guilty of their damnation, than he was before guilty 
of those impieties, for w^hich they are now visited. 
Every subject's duty is the king's; but every sub- 
ject's soul is his own."^ 

The reasoning of the King here is in strict accordance 
with the relation of king and subject, as viewed at the 
common law and the rule of law, which made the prin- 
cipal liable for the acts of the agent, performed in pur- 
suance of an express authority, or within the general scope 
of his powers, as agent,^ was held not to apply to the rela- 
tion of king and subject. Instead of the rule respondeat 
superior, (let the principal answer) when it came to king 
and subject the rule was rather respondere nan sovereign, 
for the king was not under the authority of man, but of 
God and the law, or, as the maxim puts it, "Rex non debet 
esse sub homine, sed Deo et lege."^ 

The Poet makes the king give the underlying reason 
for the rule of law, w^hich shaped itself into the maxim 
quoted, better, perhaps than half the lawyers of his period 

» Henry V, Act IV, Scene I. 

* Coke, 4' Inst. 114. 

"Broom's Legal Maxims (3' London ed.) 46, 111; Bracton, 5. 

But as the King reasons, penal responsibility, in the law, is 
always personal, and the obligation to respond or answer for an 
act never applies in the absence of a commission of the act, in 
person, or unless it was committed by someone standing in the 
place of the person sought to be held liable therefor. 



THE LAW IN SHAKESPEARE. 293 

could have done, and the reasoning to shift the responsi- 
bility for a war that he had brought on, from his own 
shoulders to the vengeance of the Divine Economy, is in 
keeping with the religious training which prompted the 
charge of an attribute even beneath that of the beasts of 
the field — for these even, cherish no such thing as ven- 
geance—to the Almighty, in order, no doubt, to shift the 
blame from other shoulders, on which it ought to lie. 

Sec. 262. Bearing testimony, — 

"Flu. ... I hope your majesty is pear me testi- 
mony, and witness, and avouchments, that this is the 
glove of Alencon, that your majesty is give me, m 
your conscience now."^ 

Bearing testimony is to make a statement, as a witness, 
under oath or affirmation, to a given state of facts.^ This 
is the meaning of the word as used here, and the speaker 
calls upon the king to corroborate him, or bear witness, 
that the glove he had was the glove given him by the king. 

Sec. 263. Martial law. — 

'Tlu. An please your majesty, let his neck answer for 
it, if there is any martial law in the 'orld."^ 
''Martial law" is that military rule or authority, which 
exists in time of war, and is recognized by the laws of war, 
as to persons within the scope of active military opera- 
tions, in so far as it may be necessary, in order to fully 
carry on the purposes or objects of the war.* Martial law, 

^ Henry V, Act IV, Scene VIII. 

-Bacon, Abr., Evidence, (A); 1 Greenleaf, Evid., sees. 98, 328. 
'Henry V, Act IV, Scene VIII. 

*1 Kent's Comm. 377; DeHart Mil. Law, 13-17; O'Brien, MiL 
Law, 26, 30; Tyler, Courts Martial, 11, 27, 58, 62, 105. 

Basset said to Vernon, in 1' Henry VI, after being struck by the 
latter: "Bas. Villain, thou know'st the law of arms is such, 
That, who so draws a sword, 'tis present death; 
Or else this blow should broach thy dearest blood." 

(Act III, Scene IV.) 



294 THE LAW IN SHAKESPEARE. 

in time of war, supersedes and abrogates the civil law, 
as to those engaged in the war, hence the appeal was prop- 
erly made here to "martial law," for the punishment of 
an offender who was engaged in the war himself. It ex- 
tends to the camp and its environs and to near field and 
other operations of war and has its basis in actual neces- 
sity and the chief military officer is the person who en- 
forces such rules, so the King, in this instance, was the 
proper authority to ask the punishment of Pistol from. 



CHAPTER XXI. 

"FIRST PART OF KING HENRY THE SIXTH." 

Sec. 264. Homicide. 

265. Distraining property. 

266. Proclamation. 

267. Truant in the Law. 

268. Brawl. 

269. Outlaw. 

270. Contract. 

271. Partners, 

272. Fighting in King's palace, or presence. 

273. Quid pro quo. 

274. Condemned woman's privilege of pregnancy. 

275. Compromise. 

Sec. 264. Homicide. — 

"Reig. Salisbury is a desperate homicide; 
He fighteth as one weary of his life. 
The other lords, like lions wanting food, 
Do rush upon us as their hungry prey."^ 

Homicide is the destruction of the life of a human 
being, either by himself, or by the act, procurement or 
culpable omission of another.- When the death is caused 
by the intentional act of the deceased himself, the offender 
is called jelo de se and when the death is caused by another 
it is either justifiable, excusable, or felonious, according 
to the facts connected with the killing.^ 

To constitute the crime of homicide the person killed 
must have been entitled to live, and in legal contemplation 
a soldier of the enemy, in time of war, has no right to his 
life, but may be killed by the enemy in battle, without the 
one killing him, being guilty of a homicide.^ So the 



» 1' Henry VI, Act I, Scene II. 

==1 Hawkins, PI. Cr. sec. 2; 2 Bishop, Cr. Law, sec. 538. 

' 1 Hawkins, PI. Cr. Ch. 8. 

* 2 Bishop, Cr. Law, supra. 

(295) 



296 THE LAW IN SHAKESPEARE. 

killing of the soldiers of France, by the soldiers of Eng- 
land did not amount to a legal homicide, and the speaker 
in this verse was technically wrong, in so appljdng this 
name to lord Salisbury. 

Sec. 265. Distraining property. — 

"Glo. . . . Here's Beaufort, that regards nor God 
nor king 
Hath here distrain'd the Tower to his use."^ 

Distress, at common law, was the taking of a chattel, 
or other personal property, out of the possession of the 
owner, into the custody of the party injured, to procure 
satisfaction for the wrong done." It was resorted to for 
the purpose of enforcing payment of rent, taxes or other 
duties, as well as to exact damages for the trespasses of 
cattle. The remedy is of great antiquity and is said to 
have dated back to the Gothic nations of Europe, since 
the Roman Empire and English statutes made various 
amendments to the remedy since the days of Magna 
Charta.^ 

As the remedy by distress was virtually a taking of the 
law into the hands of the landlord, or other person entitled 



Blackstone's definition of homicide, as the "Ivilling of any 
human creature," is not in strict accordance with the law as 
presented by other writers, as it leaves out of the definition of 
the crime that the killing must have been done by another 
human being. 4 Bl. Comm. 177; 1 Hawkins, PI. Cr. sec. 2. 

Repulsing Richard's suit, Lady Anne tells him, in King Rich- 
ard III: "An'ne: If I thought that, I tell thee, homicide. These 
nails should rend that beauty from my cheeks." (Act I, Scene 
IL) 

Referring to King Richard, in his talk to his troops before 
the battle Richmond said: "Richm. . . . For what is he they 
follow? truly, gentlemen, a bloody tyrant and a homicide." (Act 
V, Scene III.) 

1 Henry VI, Act I, Scene III. 

="2 Bl. Comm. 6. 

^ Bacon, Abr. Distress; 4 Dane, Abr., 126; Taylor's Land, and 
Ten., sec. 566; Coke, Litt. 317. 



THE LAW IN SHAKESPEARE. 297 

to the compensation or redress exacted, it was more or 
less of a high handed proceeding, considering the prop- 
erty rights of the one whose property was distrained, hence 
Gloster accuses the bishop of Winchester of resorting to 
the remedy of distress and of holding the Tower for his 
own use. 

Sec. 266. Proclamation. — 

"May. Nought rests for me, in this tumultuous strife, 
But to make open proclamation : — 
Come, Officer, as loud as e'er thou canst. "^ 

A proclamation is the act of causing some state matters 
to be published or made generally known.- In English 
practice, it was also the declaration made by the crier, 
under the authority of the court, that something was 
about to be done. There was the proclamation of rebel- 
lion, and proclamation of "exigents," known to the old 
English law, and the proclamation here used comes nearer 
the latter in its object, for under this proclamation, on 
the issuance of a writ of exigent, a proclamation issued 
to the officer of the county where the offenders lived 
and he made three proclamations for the ofi^enders to 
yield themselves or be outlawed.^ This is no doubt the 
threat intended by the Mayor of London, in this instance, 
in order to preserve the peace. 

^ 1' Henry VI, Act. I, Scene III. 

== Bacon, Abr.; Buller, Nisi Pr. 226; Dane, Abr.; eh. 96a; Brooke, 
Abr. 

' Bouvler's Law Dictionary. 

York said, in 2' Henry VI: "YorTc. ... as I bear, the king 
is fled to London, to call a present court of Parliament. Let's 
pursue him, ere the writs go forth." (Act V, Scene III.) 

Hastings orders a proclamation, in 3' Henry VI, as follows: 
"Hast. Sound, trumpet; Edward shall be here proclaim'd: — 
Come, fellow soldier, make thou proclamation. {Gives Mm a 
paper. Flourish.) 

Sold. (Reads) Edward the Fourth, by the Grace of God, etc., 

(Act IV, Scene VII.) 



298 THE LAW IN SHAKESPEARE. 

Sec. 267. Truant in the law.— 

*'Suff. 'Faith, I have been a truant in the law; 
And never yet could frame my will to it; 
And, therefore, frame the law unto my will."^ 

The speaker means to convey by this phrase that he 
had never followed the investigation of legal matters with 
any degree of duty or timely application, but had been 
remiss in his duties in all matters pertaining to the law. 
In other words, that he had shirked his duty in legal mat- 
ters, or had idled, loitered and absented himself when 
legal matters were in issue, instead of applying himself 
as he ought to have done. 



Sec. 268. Brawl.— 

"War. . . . This brawl to-day, 

Grown to this faction, in the Temple garden. 
Shall send, between the red rose and the white, 
A thousand souls, to death and deadly night."^ 

A brawl is a noisy quarrel, or a tumult commenced by 
those not careful about the peace or quietude of a neigh- 
borhood or of any person. A common brawler, at com- 
mon law, was one who disturbed the peace of a neighbor- 
hood by fighting or quarrelling and was indictable for 
the maintenance of a nuisance, or for being a nuisance 
himself.^ That Warwick's prediction as to the final out- 
come of the ''brawl" that day started between the factions 
of York and Lancaster is in the nature of a prophecy, 
is abundantly borne out by the history of the long wars 
between these two houses. 



King Edward asks, in 3' Henry VI: "K. Edw. Is proclamation 
made, — that, who finds Edward, shall have a high reward, and 
he his life?" (Act V, Scene V.) 

» 1' Henry VI, Act II, Scene IV. 
^ 1' Henry VI, Act II, Scene IV. 
' Wharton, Law Lexicon. 



THE LAW IN SHAKESPEARE. 299 

Sec. 269, Outlaw.— 



<c 



Win. And am I not a prelate of the church? 
Glo. Yes, as an outlaw in a castle keeps, 
And useth it to patronage his theft."^ 

An outlaw^, in English law, was one who was put out 
of the protection or aid of the law, because of his prior 
unlawful course in life.- At common law, a process was 
sued out against a person who was in contempt of court, 
for his refusal to be amenable to the court having juris- 
diction of his person or his property, and the writ of 
outlawry issued either in criminal or civil cases.^ 

Gloster accuses the bishop of Winchester of being in 
contempt of the rightful temporal power and authority 
of the King and thus in a position of outlawry toward 
the sovereign. 

The Clown is made to say, in Titus Andronicus: 

''Clo. Why, I am going with my pigeons, to the tribunal plebs, 

to take up a matter of brawl, betwixt my uncle and one of the 

emperial's men." (Act IV, Scene III.) 

On the mutiny, inspired by lago, Othello observes: 
"Are we turn'd Turks; and to ourselves do that. 
Which heaven hath forbid the Ottomites? 
For Christian shame, put by this barbarous brawl." (Act II, 
Scene III.) 

He then gives direction to the false lago: 
"lago, look with care, about the town; 
And silence those whom this vile brawl distracted." (idem.) 

^ 1' Henry VI, Act III, Scene I. 

== Bacon, Abr. Outlawry: 3 Bl. Comm. 2S3, 284. 

^Coke, Litt. 128; Bacon, Abr.; 3 Bl. Comm. 283. Outlawry in 
civil cases, in the United States is unknown, and it is very rare 
that one is outlawed in a criminal case. 

Messala tells Brutus, in Julius Caesar: "That by proscription, 
and bills of outlawry, Octavius, Antony and Lepidus, have put 
to death a hundred senators." (Act IV, Scene III.) 



300 THE LAW IN SHAKESPEARE. 

Sec. 270. Contract.— 



"I' 



K. Hen. loving uncle, kind duke of Gloster, 
How joyful am I made by this contract."^ 

A contract, in law, is an agreement, upon sufficient 
consideration to do or not to do, some particular thing. - 
Contracts are either express or implied, and an express 
contract is one where the details and terms of the agree- 
ment are fully uttered and agreed 10,== while an implied 
contract is one left to the intention of the parties, or 
such a contract as reason and justice dictate and which, 
therefore, the law presumes that every man undertakes 
to perform.* 

The contract referred to here was rather in the nature 
of an implied contract, than one expressed in its terms, 
and of course as keeping the peace would only be the 
performance of their legal duty, this would be an object 
imposed upon the parties by law. But the mutual prom- 
ises by the duke of Gloster and the bishop of Winchester 
for themselves and their followers, to desist from further 
disturbances and keep the peace, and drop all past differ- 
ences and dissensions between them, was in the nature 
of a contract, or agreement and the ratification of such 
an undertaking gave the king much pleasure. 



^ 1' Henry VI, Act III, Scene I. 

^Lawson on Contracts (2' ed.), sec. 1; 1 Parsons Con. sec. 9; 
2 Bl. Comm. 446; 2 Kent's Comm. 449; Story, Con. sec. 1. 

=> 2 Bl. Comm. 443. 

^2 Bl. Comm. 443; 1 Parson's Com. 4; Lawson, Con.(2d ed.) 
sec. 3. 

King Henry VI, replying to the proffered offer of the daughter 
of the earl of Armagnac, in marriage, said: "iT. Hen. In argu- 
ment and proof of which contract, bear her this jewel, pledge of 
my affection." (Act V, Scene I.) 

In urging Charles to agree to the terms of the peace imposed, 
in 1' Henry VI, Reignier said: "Reig. My lord, you do not well, 
in obstinacy, To cavil, in the course of this contract." (Act V, 
Scene IV.) 



THE LAW IN SHAKESPEARE. 301 

Sec. 271. Partners. — 

"Tal. My vows are equal partners with thy vows. 

Bed. . . . Here will I sit, before the walls of Rouen, 
And will be partner of your weal or woe."^ 

Partners are those who enter into an agreement to use 
their labor, skill, or means, in the furtherance of some 
lawful commerce or business, under an understanding, 
express or implied from the nature of the enterprise, that 
there shall be community of the profits or earnings of the 
undertaking.- In the agreement for the partnership, 
there may be an equal or unequal distribution of the 
earnings of the partnership, according to the amount con- 
tributed by each of the partners,^ hence Talbot declares 
that his vows will be "equal partners" with those of his 
associate in arms, clearly noting this distinction, in law, 
between one who shares the earnings only in proportion 
to his contributions and one who shares them equally 
with his co-partners. 

Gloster urges the King, in 1' Henry VI: "Glo. . . . You 
know, my lord, your highness Is betroth'd, Unto another lady 
of esteem; How shall we then, dispense with this contract, And 
not deface your honor with reproach?" (Act V, Scene V.) 

Juliet tells Romeo, in declaring her love: "Well, do not swear: 
although I joy in thee, I have no joy of this contract to-night." 
Act II, Scene II.) 

* 1' Henry VI, Act III, Scene II. 

''Collyer, Part. Sec. 2; 1 Lindley, Part, sees. 1, 6; Story, Part 
sees. 23, 24. 
' Ante idem. 

Antony tells Caesar, in Antony and Cleopatra: "Anl. . . . 
I, your partner in the cause, 'gainst which he fought. Could not 
with graceful eyes, attend these wars." (Act II, Scene II.) 
Tarquin tells the poor Lucrece: 

"That done, despitefully I mean to hear thee 
Unto the base bed of some rascal groom. 
To be thy partner in this shameful doom." (670, 672.) 
And Lucrece reflects that she would then have 
"co-partners in my pain." (789.) 



302 THE LAW IN SHAKESPEARE. 

Sec. 272. Fighting in King's palace or presence. — 

"Basset. Villain, thou know'st the law of arms is such, 
That who so draws a sword, 'tis present death. 
Or else this blow should broach thy dearest blood. "^ 

Basset here refers to the ancient law, which obtained 
in England, prior to the Norman Conquest, whereby fight- 
ing in the king's palace, or in his presence, or in that of 
his judges, was made a felony punishable by death. ^ By 
statute (33 Henry VIII, c. 12) bloodshed and malicious 
strikings, whereby blood was shed, in the palaces or 
houses of the king, while he was personally resident there, 
was made a felony, for which the offender should have his 
right hand struck off and for declaration of the solemn 
circumstance of this execution, the statute assigned dif- 
ferent functions to the different members of the king's 
household, in order to terrorize the populace and pre- 
vent such grievous offenses.^ 

Sec. 273. Quid pro quo. — 

''Suff. Lady, wherefore talk you so? 

Mar. I cry you mercy, 'tis but quid for quo."'* 

Quid pro quo, from the Latin, meaning an equivalent, 
denotes, in law, the consideration in a contract, for which 
something is to be done or not done, by the promisor.'^ Of 
course the terms are used by Margaret in a jocular or 
humorous manner. 



^ 1' Henry VI, Act III, Scene IV. 

-I Reeve's History Eng. Law, 198. ,r 

* IV Reeve's History Eng. Law, p. 453 ; Rolfe's 1' Henry VI, p. 
202, notes. 

This barbarous judgment, by the lopping off of the right hand, 
we are told, was actually executed upon Sir Edmund Knivet, 
during the reign of Henry VIII, for striking a man, at Green- 
wich, the King then being there. (IV Reeve's History Eng. Law, 
p. 454). But this statute which imposed this punishment was 
repealed by 9' Geo. IV, c. 31. idem. 

* V Henry VI, Act V, Scene III. 
« Coke Litt. 47b. 



THE LAW IN SHAKESPEARE. 303 

Sec. 274. Condemned woman's privilege of pregnancy. — 

"Puc. Will nothing turn your unrelenting hearts? — 
Then, Joan, discover thine infirmity; 
That warranteth by law to be thy privilege. — 
I am with child, ye bloody homicides: 
Murder not then the fruit within my womb, 
Although ye hale me to a violent death. "^ 

Joan of Arc here claimed the common law privilege, 
which was extended in all cases, to a pregnant woman, 
condemned to death, provided she was found to be with 
"quick child," of having her execution delayed until the 
birth of her child. When this plea was made prior to 
execution, the court directed a jury of twelve matrons, 
or discreet women, to ascertain the fact if the condemned 
woman was ''quick with child," and if the verdict was 
that she was with quick child, the execution was stayed 
from term to term of court, until the child was born, or 
the woman was found to have been pretending preg- 
nancy." By the English common law, however, the plea 
would fail, if it was not found that the child had quick- 
ened, for until this period the foetus was not believed to 
be alive. ^ But by the law of Scotland and of France, it 
was held to be a good plea, when the woman was found 
to be pregnant, whether the child had quickened or not, 
and hence, the plea of the Maid of Orleans, in this in- 
stance, if she was really pregnant, ought to have stayed 
her execution, if the law of the realm was accorded her.* 



^ 1' Henry VI, Act V, Scene IV, 

M Sh. Bl. Comm. 394, 395; 1 Bishop, Cr. Proc, sees. 1322, 1324. 

» Reg vs. Baynton, 14 How. St. Tr. 597, 634. 

^Bouvier's Law Dictionary; 1 Chitty's Cr. Law, 760. 

Chitty states that while the common law did not give a stay, 
unless the child had quickened, the matrons, because of their 
"gentleness of sex," usually found that the child had quickened 
and thus avoided the execution of one of their sex, at their 
hands. 1 Chitty, Cr. Law, 760; 3 Inst. 17; 4 BL Comm. 695; 1 
Hale, P. C. 368, 369. 



304 THE LAW IN SHAKESPEARE. 

Sec. 275. Compromise. — 

"York. . . . And, now the matter grows to com- 
promise, 
Stand'st thou aloof upon comparison."^ 

A compromise is an agreement between two or more 
parties as a settlement of matters in dispute between 
them.- Frequently compromises are brought about by 
arbitrators, with authority to decide what shall appear 
to be just and reasonable between the parties, in order 
to put an end to the differences of which they are made 
the judges.® 

Of course in negotiations for a compromise, if either 
party is arbitrary, or not willing to make concessions to 
the other, to settle the disputed matters, then no compro- 
mise can generally be procured and this is why York 
suggests to the French Dauphin, that he must not stand 
''aloof upon comparison," "now the matter grows to com- 
promise." 

In an early South Carolina case, a jury of matrons stayed the 
execution of a pregnant woman, according to this old practice. 
State vs. Arden, 1 Bay, 487, 490. 

1 1' Henry VI, Act V, Scene V. 
^ Bouvier's Law Dictionary. 
^ ante idem. 



CHAPTER XXII. 

•SECOND PART OF KING HENRY THE SIXTH. 



Sec. 276. 


Articles of agreement. 


277. 


Bargain and sale. 


278. 


Margery Jourdemayn's case. 


279. 


Pursuivant. 


280. 


Bondman. 


281. 


Open to the Law. 


282. 


"Rigour of the Law." 


283. 


To apprehend in the fact. 


284. 


York's title to the Crown of England. 


285. 


Duchess' of Gloster's sentence. 


286. 


Justification for one condemned by Law. 


287. 


Contrary to form of Law. 


288. 


Levying sums of money. 


289. 


Taking bribes. 


290. 


Taxes — Restitution. 


291. 


Bearing false witness — Perjury. 


292. 


Executioner. 


293. 


Land held in common. 


294. 


Sales of meat during Lent. 


295. 


Source of Law — Biting statutes. 


296. 


Jurisdiction regal. 


297. 


Benefit of Clergy. 


298. 


Determining causes. 


299. 


Maiden rent. 


300. 


Bail. 



Sec. 276. Articles of agreement. — 

"Sujf. My lord protector, so it please your grace, 
Here are the articles of contracted peace, 
Between our sovereign and the French king, Charles, 
For eighteen months, concluded by consent."^ 

Articles are the divisions of a written or printed docu- 
ment or agreement and in the sense in which the term 
is here used it is the specification of the distinct matters 



2' Henry VI, Act I, Scene I. 

(305) 



306 THE LAW IN SHAKESPEARE. 

aj^reed upon.^ The fundamental idea of an article is that 
of an object comprising some part of a complex whole, 
such as the statement of the several undertakings of the 
several parties to an agreement, covering the different 
contingencies of the terms of the contract. - 

The contract here contains the legal essentials of a 
valid agreement commencing with the names and desig- 
nation of the parties, the subject matter of the agreement, 
containing the essentials of the undertakings of each 
party; the covenants to be performed and the signatures 
of the parties to the agreement.^ 

^ Bouvier's Law Dictionary. 

-Ante idem. 

^ The Poet, however, described the person of the agent, rather 
than the principal for whom the contract is made. In this form, 
it is but the agreement of Suffolk, as the additions after his 
name, in law, would be but mere descriptio personae. An agree- 
ment should be executed by an agent in the name of his princi- 
pal, by himself, as agent, rather than in the name of the agent, 
as a party thereto. 

Gloster reads this peace agreement, as follows: "GIo. Imprimis, 
It is agreed between the French King, Charles, and William de 
la Poole, marquis of Suffolk,, ambassador for Henry, King of 
England, that the said Henry shall espouse the Lady Margaret," 
etc. . . . "Item. It is further agreed between them," etc. 
2' Henry VI, Act I, Scene I. 

The earl of Westmoreland said, on Henry's attempted dispo- 
sition of the crown, in 3' Henry VI: "West. I cannot stay to hear 
these articles." (Act I, Scene I.) 

Speaking of the form of the French treaty, Buckingham said 
of Cardinal Wolsey: "Buck. Pray, give me favor, sir. This cun- 
ning ca-rdinal. The article o' the combination drew, as himself 
plead'd." (Act I, Scene I.) 

The Earl of Surrey tells the duke of Norfolk, when they are 
presenting their charges against Cardinal Wolsey, in King Henry 
VIII: "Sur. Produce the grand sum of his sins, the articles col- 
lected from his life." (Act III, Scene II.) 

In Coriolanus, Cominius said: "Com. . . . send us to Rome, 
the best, with whom we may articulate, for their own good, and 



THE LAW IN SHAKESPEARE. 307 

Sec. 277. Bargain and sale. — 

"York. ... So York must sit, and fret, and bite his 
tongue, 
While his own lands are bargain'd for and sold."^ 

A contract of bargain and sale, is one whereby the 
owner of land, for a valuable consideration, agrees to sell 
to the bargainee, whereupon a use arises in favor of the 
latter, to whom the seisin is transferred by the statute of 
uses.2 In other words, the statute of uses annexed the 
seisin to such an agreement, whereby a complete estate 
became vested in the bargainee.^ All things for the most 
part which may be granted by any deed, may be granted 
by bargain and sale and an estate may be created in fee, 
for life or for years, by such a deed.* The proper and 
technical words to denote a bargain and sale are "bargain 
and sell," as used by the Poet here, but from the lan- 
guage of the verse quoted, an involuntary alienation is 
contemplated by York, which could only occur after the 
title was divested by confiscation or other means, before 
the bargain and sale occurred.^ 

ours." This means he would enter into articles with him. (Act 
I, Scene IX.) 

Antiochus tells Pericles, Prince of Tyre, when he sees that he 

has discovered his sin: 

"Ant. Prince Pericles, touch not, upon thy life. 
For that's an article within our law, 
As dangerous as the rest." (Act I, Scene I.) 

» 2' Henry VI, Act I, Scene I. 

^'Tiedeman, on R. P. (3' ed.) sees. 542, 543. 

'Coke, Litt. 40b; 2 Bl. Comm. 338. 

*2 Coke, 54. 

''In other words, this deed is a contract, to which the land 
owner would have to assent. Tiedeman, on R. P. (3' ed.) sec. 
543. 



308 THE LAW IN SHAKESPEARE. 

Sec. 278. Margery Jourdemayn's case. — 

"Duchess. What say'st thou, man? hast thou as yet 
conferr'd 
With Margery Jourdain, the cunning witch, 
With Roger Bolingbroke, the conjuror? 
And will they undertake to do me good?"^ 

These lines refer to a case tried during the tenth year 
of King Henry VI, wherein Margery Jourdemayn, John 
Virley, clerk, and friar John Ashwell were, on the 9th of 
May, 1433, brought from Windsor by the constable and 
committed for sorcery, before the Council at Westminster.- 
Afterwards, by order of the Council, they were delivered 
to the custody of the Lord Chancellor of the Kingdom, 
but the woman was afterwards burned at Smithfield, as 
stated at the time in the chronicles, as well as in the play.^ 

Sec. 279. Pursuivant. — 

"Suff. . . . Take this fellow in, and send for his 
master with a pursuivant presently : — we'll hear more 
of your matter before the king."^ 

A pursuivant, from the French, poursuivant, meaning 
a follower, was the third and lowest order of heraldic offi- 
cers. This office was rather a probationary one, through 
which heralds or kings-at-arms, had to pass.^ In ancient 
times, any nobleman of great prowess could name his own 
pursuivant and the dukes of Norfolk, Northumberland 
and the earl of Salisbury, each had his own pursuivant. 

*2' Henry VI, Act I, Scene II. 
*Rolfe's 2' Henry VI, p. 187, notes. 

'Rymer's Faedera, p. 166. See, also. III Reeve's History Eng. 
Law, pp. 453, 551. 

And for history of the statutes against sorcery and witchcraft, 
even as late as the reign of Queen Elizabeth, see V Reeve's His- 
tory Eng. Law, p. 349. 

* 2' Henry VI, Act I, Scene III. 
'Hume's History of England. 



THE LAW IN SHAKESPEARE. 309 

The costume of a pursuivant of the king was a sureoat, 
embroidered with the royal arms, and worn with one 
sleeve hanging down in front, and another behind the 
back, but of more recent years the costume of such officers 
is like that of a herald. 

Sec. 280. Bondman. — 

"Suff. . . . And all the peers and nobles of the 
realm, 
Have been as bondmen to thy sovereignty."^ 

Bondman is a term which has not obtained a strictly 
juridical use, distinct from the vernacular, but it is gen- 
erally used to indicate one compelled to render personal 
servitude and it is not to be used in the same sense as the 
word slave. A slave is an object of property and is pos- 
sessed and owned as a chattel or thing, while a bondman, 
although standing in such relation to the party entitled 
to his services, possesses otherwise, such legal rights as any 

There are four pursuivants belonging to the English College of 
Arms: Rouge Croix, the oldest, so named from the cross of St. 
George; Blue Mantle, instituted either by Edward III, or Henry 
V, and named from the color of the Order of the Garter; Rouge 
Dragon, named from Henry VII's dexter supporter, a red dragon, 
and Portcullis, named from a badge of the same king. 

A Pursuivant and Lord Hastings, have the following colloquy, 
in King Richard III: 

''Hast. Gramercy, fellow: There, drink that for me. (Throw- 
ing him his purse.) 

Purs. I thank your honour." (Act III, Scene II.) 

King Richard bids Ratcliff, in Richard III: "E. Rich. Send 
out a pursuivant at arms to Stanley's regiment." (Act V, 
Scene III.) 

Doctor Butts said, in King Henry VIII, speaking of the treat- 
ment accorded Cranmer, by the peers, before his trial: "Butts. 
There, my lord. The high promotion of his grace, of Canterbury; 
Who holds his state at door 'mongst pursuivants, pages, and 
footboys." (Act V, Scene II.) 

> 2' Henry VI, Act I, Scene III. 



310 THE LAW IN SHAKESPEARE. 

individual may possess, in law and he does not occupy a 
mere property status.^ The Hebrews, for instance, held 
the people of other nations as slaves, possessing the atti- 
tude of mere property; but those of their own nation, 
under the obligation to serve, were rather held as bond- 
men, possessing certain legal rights, as persons, not as 
property." This was rather the legal attitude of the 
villeins, under the serfdom which existed in feudal times, 
and regardless of the nature of his service, the villein, 
under English law, was a legal person, capable of legal 
rights.^ The terms is here used, to indicate persons in one 
degree above mere slaves, or serfs, but compelled to render 
service as the sovereign might demand, or, in this respect, 
to occupy the attitude of "bondmen." 

Sec. 281. Open to the law. — 

"Glo. ... As for your spiteful false objections. 
Prove them and I lie open to the law."* 

Gloster here demands a trial and admits, that, upon the 
proof of the several offenses charged against him, he would 
be amenable to the law. In other words, he asks to put 
his accusers to their proof and demands the evidence of 
his guilt, admitting that if the things charged against him, 
shall be established, he has violated the law and is amena- 
ble for his offenses. The objections or charges are not 
admitted, but are claimed to be "spiteful false objections," 
but if true, then the speaker admits, "I lie open to the 
law." 



^ 1 Hurd, Law of Freedom and Bondage, chs. 4, 5. 

^Cobb's Hist. Sketch, Ch. 1. 

'1 Kurd's Law of Freedom & Bondage, chs. 4, 5. 

Casca said in Julius Caesar: "Casa. So every bondman in 
his own hand bears the power to cancel his captivity." (Act 
I, Scene II.) 

* 2' Henry VI, Act I, Scene III. 



THE LAW IN SHAKESPEARE. 311 

Sec. 282. " Rigour of the law. ' '— 

"York. . . . I do beseech your majesty, 
Let him have all the rigour of the law."^ 

Rigour is here used in the sense of exactness, strictness, 
severity or inflexibility. In other words, York demands 
of the King that the law, in all its strictness shall be 
enforced, without compassion or indulgence. He de- 
mands that the King shall be firm and rigid in the 
enforcement of the law; that no mercy be shown, but 
that the most rugged sternness, or relentless severity shall 
be employed in the enforcement of the law.^ 

Sec. 283. To apprehend in the fact. — 

"Buck. . . . The ringleader and head of all this 
rout, — 
Have practiced dangerously against your state, 
Dealing with witches and with conjurors; 
Whom we have apprehended in the fact."^ 

To be "apprehended in the fact," is to be arrested on a 
criminal charge, while in the commission of the crime.* 
Apprehend is used in speaking of arrests on criminal 
charges, while arrest is used in speaking of civil offenses, 
not criminal in nature. In other words, one may make 
an arrest on civil process, while one can only be appre- 
hended on a criminal warrant,^ so the correct legal term 
is used by the Poet. Factum, is a culpable or criminal act, 

1 2'" Henry VI, Act I, Scene III. 

^ The same term is used, in a different meaning, by the good 
queen Hermione, at her trial, when she aslis not mere stern- 
ness or severity and says: 
"If I shall be condemn'd 
Upon surmises, ... I tell you, 
'Tis rigour and not law." 

(Winter's Tale, Act III, Scene II.) 

»2' Henry VI, Act II, Scene I. 

* Bouvier's Law Dictionary. 

^Bacon's Abr.; Bouvier's Law Dictionary. 



312 THE LAW IN SHAKESPEARE. 

or one not lawful in itself/ so to be apprehended, in the 
fact, is to be taken ''red handed," or while in the com- 
mission of the crime. 

Buckingham caught the Duchess of Gloster, in the 
presence of the witches and while enquiring about the 
several treasonable matters charged and thus, she was 
taken or ''apprehended in the. fact." 

Sec. 284. York's title to the crown of England. — 

''York. . . . Edward the Third, my lords, had seven 
sons; 
The first, Edward the Black Prince, prince of Wales ; 
The second, William, of Hatfield; and the third, 
Lionel, duke of Clarence; next to whom. 
Was John of Gaunt, the duke of Lancaster: 
The fifth was Edmund Langley, duke of York ; 

12 Bl. Comm. 293, 295. 

Paris attempts to apprehend Romeo, who is entering the tomb 
of the Capulets, in Romeo and Juliet, as follows: 
''Par. Stop thy unhallow'd toil, vile Montague; 

Can vengeance be pursu'd further than death? 
Condemn'd villain, I do apprehend thee: 
Obey and go with me; for thou must die.' 
Apprehend, in its strictest sense, applies to taking one into 
custody, in a criminal case. An arrest could be made, at com- 
mon law, by a private person, for a crime committed in his pres- 
ence, and especially as here, where he was taken in the act. 
Paris apprehends Romeo, in the act of breaking the enclosure to 
the Capulet tomb; he demands that he stop his "unhallow'd toil;" 
Romeo has also been adjudged guilty of Tybalt's murder and 
banished, not to return, on pain of death, so Paris, as he had a 
legal right to do, arrests him, and assures him he must now pay 
the penalty of violating the Prince's judgment, when he was 
banish'd. (Act V, Scene III.) 
See Bouvier's Law Dictionary. 

Brabantio, in Othello, gives the following direction: "Some 
one way, some another. — Do you know where we may apprehend 
her and the Moor?" (Act I, Scene I.) 

And when he comes up with Othello, he addresses him as fol- 
lows: "Bm. ... I therefore apprehend and do attach thee," 
etc. (Act I, Scene II.) 



THE LAW IN SHAKESPEARE. 313 

The sixth, was Thomas Woodstock, duke of Gloster; 
AVilliam of Windsor was the seventh, and last. 
Edward, the Black Prince, died before his father; 
And left behind him, Richard, his only son, 
Who, after Edward the Third's death, reign'd as king ; 
Till Henry Bolingbroke, duke of Lancaster, 
The eldest son and heir of John of Gaunt, 
Crown'd by the name of Henry the Fourth, 
Seiz'd on the realm; depos'd the rightful king; 
Sent his poor queen to France, from whence she came, 
And him to Pomfret ; where, as all you know, 
Harmless Richard was murder'd traitorously. 

War. Father, the duke hath told the truth; 
Thus got the house of Lancaster the crown. 

York. Which now they hold by force and not by right; 
For Richard, the first son's heir, being dead. 
The issue of the next son should have reign'd. 

Sal. But William of Hatfield died without an heir. 

York. The third son, duke of Clarence (from whose line 
I claim the crown,) had issue — Phillippe, a daughter, 
Who married Edmund Mortimer, earl of March : 
Edmund had issue — Roger, earl of March: 
Roger had issue — Edmund, Anne, and Eleanor. 

Sal. This Edmund, in the reign of Bolingbroke, 
As I have read, laid claim unto the crown; 
And, but for Owen Glendower, had been king, 
Who kept him in captivity till he died. 
But, to the rest. 

York. His eldest sister, Anne, 

My mother, being heir unto the crown, 
Married Richard earl of Cambridge ; who was son 
To Edmund Langley, Edward the Third's fifth son. 
By her I claim the kingdom : she was heir 
To Roger, earl of March; who was the son. 
Of Edmund Mortimer; who married Phillippe, 
Sole daughter unto Lionel, duke of Clarence; 
So, if the issue of the elder son, 
Succeed before the younger, I am king. 

War. What plain proceedings are more plain than this? 
Henry doth claim the crown from John of Gaunt, 
The fourth son ; York claims it from the third. 
Till Lionel's issue fails, his should not reign. "^ 



>2' Henry VI, Act II, Scene II. 



314 THE LAW IN SHAKESPEARE. 

This descent of the Duke of York is, as history gives 
it, and according to the English law, was a better title 
to the crown of England than that of the house of Lan- 
caster. Richard of York w^as the son of the earl of 
Cambridge, beheaded by Henry the Fifth for asserting 
his claim to the crown; his mother, Anne, the heiress of 
the Mortimers, and thus his title to the crown, as the 
descendant of the third son of Edward the Third, Lionel, 
of Clarence, was stronger, in law, than that of Henry VI, 
a descendant of John of Gaunt, the fourth son.^ York 
was the issue of the elder son, and since, in law, such 
issue would succeed, before that of the younger son, as the 
Poet presents it, his claim was the stronger to the crown. ^ 

Sec. 285. Duchess of Gloster's sentence. — 

"K. Hen. Stand forth, dame Eleanor Cobham, Gloster's 
wife; 
In sight of God, and us, your guilt is great; 
Receive the sentence of the law, for sins 
Such as by God's book, are adjudg'd to death. 

You, madam, for you are more nobly born, 
Despoiled of your honor in your life. 
Shall, after three days open penance done, 
Live in your country here, in banishment, 
With sir John Stanley, in the Isle of Man."^ 

The usual practice of having the prisoner "stand forth," 
to receive the sentence, is here adopted. Like Grotius,^ 
the Poet here makes the King conclude that capital pun- 
ishment, in cases of treason and murder, are not only 
lawful, under the divine law, but indispensable to restrain 

1 1' Greene's England, pp. 561, 564. 

• The right of primogeniture, or the superior claim of the elder 
son, has been recognized, in England, ever since the reign of 
Henry II. I Reeve's History Eng. Law, pp. 254, 255, 

*2' Henry VI, Act II, Scene III. 

* De Jure Belli, b. 2, c. 20. 



THE LAW IN SHAKESPEARE. 315 

the audaciousness of guilt, as the Scripture recognizes that 
"all that a man hath, will he give for his life." 

The King assumes the attitude of the Judge pronounc- 
ing sentence — which is the judgment or judicial declara- 
tion of the court assessing the prisoners punishment — when 
he tells the Duchess to "receive the sentence of the law," 
but of course the evidence of the Duchess' guilt is not estab- 
lished as it should have been, in a court of justice, nor 
is the offeixse one in magnitude sufficient to constitute 
treason, had she been accorded a fair trial. 

Sec. 286. Justification for one condemned by law. — 

"Glo. Eleonor, the law, thou seest, hath judged thee; 
I cannot justify whom the law condemns."^ 

Gioster here bows in humble submission to the decree 
of the law, in pronouncing punishment upon his wife. 
These lines show a beautiful respect for the majesty and 
might of law, in the abstract and this is in keeping with 
all the references which his characters show to the man- 
dates of the law, after the law is applied to the rights of 
the litigants that the Poet introduces. Gioster did not 
assume to raise his right to judge one upon whom the 
law had already judged, or claim the prerogative to usurp 
the judgment seat. "The law, thou see'st hath judged 
thee." Not the King, as such, but the King, as the 



Eleanor Cobham, the mistress of Humphrey, duke of Gioster, 
became his wife in 1440 and in 1441, she with Roger Boling- 
broke, a priest, was seized for conspiracy in a plot to encompass 
the King's death, by sorcery. On Bolingbroke's arrest, she fled 
to a sanctuary, at Westminster. "Her judges found that she 
had made a waxen image of the King and slowly melted it at a 
fire, a process which was held to account for Henry's growing 
weakness, both of mind and body. The Duchess was doomed to 
penance for her crime; she was led bare-headed and bare-footed 
in a penance-sheet through the streets of London, and then 
thrown into prison for life." 1' Greene's England, pp. 562, 563. 

1 2' Henry VL Act III, Scene I. 



316 THE LAW IN SHAKESPEARE: 

mouthpiece of the law, had spoken and the law was 
higher and more sacred than the king, even; the law, 
itself had pronounced judgment. No man should ques- 
tion its high decrees. 

In the history of the trial by battle, when females were 
accused, their roale friends or relatives, acting as justifi- 
cators, or compurgators, by their oaths, had the right to 
justify the female accused and to stand in their place, 
upon their oaths, in the wager of the law.^ But this 
could not be done, after judgment pronounced, so Gloster 
here, could only let the law take its course and he would 
not "justify whom the law condemns." 

Sec, 287. Contrary to form of law. — 

"Car. Did he not, contrary to form of law, 

Devise strange deaths for small offenses done?"^ 

The Cardinal here, no doubt, refers to the provision of 
Magna Charta,^ providing that amercement of a freeman 
for a fault, shall be proportionate to his crime and not 
excessive. Death, "for small offenses done," would cer- 
tainly be contrary to the "form of law," at the time to 
which the play refers.* 

'Hale, Hist. Com. Law, 188; 3 Sli. Bl. Comm. 337. 

In making his peace with the world, before his execution, 
Buckingham said in King Henry VIII: "Buck. The law I bear 
no malice for my death. It has done, upon the premises, but jus- 
tice." (Act II, Scene I.) 



' 2' Henry VI, Act III, Scene L 
^ Magna Charta, C. C. 14, 29. 



*This repository of the rights of Englishmen was wrung from 
King John, by his barons, on the 19th of June, 1215, on the little 
island in the Thames, within the county of Buckinghamshire, 
which is still called Magna Charta Island. Coke, 2' Inst; 4 Sh. 
Bl. Comm. 423; Bouvier's Law Dictionary. 

For history of Magna Charta, and the details and scope of its 
different provisions, the reader is referred to the excellent article 
thereon, in II Reeve's History Eng. Law, pp. 16-50. 



THE LAW IN SHAKESPEARE. 317 

Sec. 288. Levying sums of money. — 

''York. And did he not, in his protectorship, 

Levy great sums of money through the realm. 
For soldiers pay in France and never sent it."^ 

Levy, in the sense in which it is here used, means to 
raise, i. e., Gloster, during his protectorship, is charged 
with having raised money, through the realm, for the pay 
of soldiers and then not sent it for this purpose. Levy, 
in law, is also used in the way of a seizure, as where money 
is raised from a seizure of property for a lawful purpose. 
The term always contemplates that the levy is made by 
lawful authority, for otherwise the payment could not be 
enforced by the levy.- 

Sec. 289. Taking bribes.— 

''York. 'Tis thought, my lord, that you took bribes of 
France, 
And, being protector, stayed the soldier's pay; 
By means whereof, his highness hath lost France."^ 

The giving or receiving of a bribe, is the acceptance 
or offering of any undue reward, by or to any person, 
wdiose ordinary profession or business relates to the ad- 
ministration of justice, in order to influence his behavior 



Gloster tells the Mayor, in King Richard III: "Glo. What: 
think you, we are Turks, or infidels? Or that we would, against 
the form of law. Proceed thus rashly in the villain's death?" 
(Act III, Scene V.) 

Menenius tells the tribunes of the people, after Coriolanus' sum- 
mary condemnation: "Men. Give me leave, I'll go to him, and 
undertake to bring him where he shall answer, by a lawful form, 
(In peace) to his utmost peril." (Act III, Scene I.) 

Cornwall, in King Lear, in ordering the arrest of Gloster, said: 
"Corn. Pinion him like a thief, bring him before us. 
Though well we may not pass upon his life. 
Without the form of justice." (Act IV, Scene VII.) 

»2' Henry VI, Act III, Scene I. 

==2 Bl. Comm. 357; 4 Bl. Comm. 81. 

^2' Henry VI, Act III, Scene I. 



318 THE LAW IN SHAKESPEARE. 

ill office, and to incline him to act contrary to his duty 
and the known rules of honesty and integrity.^ 

For Gloster to have accepted money from a foreign 
nation, at war with his own country, while acting as pro- 
tector of the realm, would of course be accepting a bribe, 
if the effect or object was to incline the party receiving 
the money to fail in the performance of his duty to his 
own country; but of course there was no foundation, in 
fact, for this charge against the good Duke Gloster, but 
the charge was a mere subterfuge, as the Poet makes plain. 

iCoke, 3' Inst., 147, 149; 4 Bl. Comm. 139; 1 Russell, Cr. 156. 

Replying to the charges against him, Gloster said, in 2' Henry 
VI: "Glo. ... I never robb'd the soldiers of their pay, Nor 
never had one penny bribe from France." (Act III, Scene I.) 

Apemantus, the philosopher, in Timon of Athens, tells Timon, 
when he offers him good treatment: "Apem. If I should be 
brib'd too, there would be none left to raill upon thee; and then 
thou would'st sin the faster." (Act I, Scene II.) 

Pleading for his client, in Timon of Athens, Alcibiades said: 
"Alciah. . . . his service done at Lacedaemon and Byzantium, 
were a sufficient briber for his life." (Act III, Scene V.) 

Caius Marcius tells Cominius, in Coriolanus: "Mar. I thank 
you, general. But cannot make my heart consent to take a bribe 
to pay my sword." (Act I, Scene IX.) 
Cassius tells Brutus, in Julius Caesar: 
"Cas. That you have wrong'd me, doth appear in this; 
You have condemn'd the noted Lucius Pella, 
For taking bribes here of the Sardians." (Act IV, Scene III.) 
And Brutus replies: 
"Bru. What, shall one of us. 

That struck the foremost man in all this world. 
But for supporting robbers; shall we now 
Contaminate our fingers with base bribes?" 

(Act IV, Scene III.) 
In Cymbeline, Belarius observes: 
"0, this life 
Is nobler than attending for a check. 
Richer than doing nothing for a bribe, 
Prouder than rustling in unpaid-for silk." 

(Act III, Scene III.) 



THE LAW IN SHAKESPEARE. 319 

Sec. 290. Taxes. — Restitution. — 

''Glo. . . . No, Many a pound of mine own proper 
store, 
Because I would not tax the needy commons, 
Have I disbursed to the garrisons, 
And never ask'd for restitution."^ 

A tax is a contribution, imposed by the government, 
upon the individual citizen of a country, for the service of 
the state." The commons, were those subjects of the Eng- 
lish nation who were not noblemen.^ Restitution is a 
legal term, meaning the return of property or money to 
one lawfully entitled thereto.* 

Gloster denies that he levied unusual assessments against 
the subjects, but claims that he waived the taxes due for 
the wars and made advancements from his own store, to 
relieve the commons, without asking that it be returned 
to him. 

Sec. 291. Bearing false witness. — Perjury. — 

"Glo. ... I shall not want false witness to condemn 
me. 
Nor store of treasons to augment my guilt: 
The ancient proverb will be well effected, — 
A staff is quickly found to beat a dog."^ 

A witness is one who testifies under oath to that which 
he knows to be true.^ A false witness, of course, would 

In Venus and Adonis, it is said: "And therefore hath she 
bribed the Destinies, To cross the curious workmanship of 
nature." (733, 734.) 

1 2' Henry VI, Act III, Scene I. 

n Bl. Comm. 308; 1 Kent's Comm. 254. 

' Bouvier's Law Dictionary. 

* Ante idem. 

King Henry VIII asks Cardinal Wolsey: "K. Hen. Taxation? 
Wherein? and what taxation? — My lord cardinal, you that are 
blani'd for it alike with us, know you of this taxation." (Act I, 
Scene II.) 

"2' Henry VI, Act III, Scene I. 

^ Bacon, Abr. Evidence; 1 Greenleaf, Evid., sees. 98, 328. 



320 THE LAW IN SHAKESPEARE. 

be one testifying to facts not known to be true, or to those 
that were false. 

Gloster knows the prejudice obtaining against him and 
advises his accusers that he knows they will invent charges 
to accomplish his overthrow and establish his guilt by 
false witnesses. 

Sec. 292. Executioner. — 

"Car. . . . Say, you consent, and censure well the 
deed, 
And I'll provide his executioner, 
I tender so the safety of my liege. "^ 

Executioner, in law, is the one who puts criminals to 
death, according to their sentence.- A hangman, in the 
United States, is such a person. The Cardinal, upon the 
excuse of his solicitation for the King, agrees to provide 
Gloster's "executioner," if the Queen and Suffolk consent 
and think well of the act. 

Sec. 293. Land held in common. — 

"Cade. ... I will make it felony to drink small 
beer: all the realm shall be in common, and in Cheap- 
side shall my palfry go to grass."^ 

The Prince tells Richard, in 3' Henry VI: "Prince. Lascivious 
Edward — and thou perjur'd George, ... I am your betters, 
traitors that ye are." (Act V, Scene V.) 

'2' Henry VI, Act IIL Scene L 
' Bouvier's Law Dictionary. 

King Henry tells Richard, in 3' Henry VI: "K. Hen. If mur- 
dering innocents be executing, Why, then thou art an execu- 
tioner." (Act V, Scene VI.) 

Lady Anne tells Richard, in King Richard III: "Anne. Arise, 
dissembler; though I wish thy death, I will not be thy execu- 
tioner." (Act I, Scene II.) 

On the approach of the murderers of Clarence, in King Rich- 
ard III, he is made to say: "Glo. . . . But soft, here come 
my executioners." (Act I, Scene III.) 

'2' Henry VI, Act IV, Scene II. 



THE LAW IN SHAKESPEARE. 821 

Land held in common, is that held by several people by 
several and distinct titles, and not by joint deed, but 
whose occupancy of the land is in common, the only 
unity recognized between them being that of possession/ 
Tenants in common have a right to share in the profits 
of the estate, according to the extent of their several inter- 
ests and all are jointly entitled to the possession of the 
land so held.- 

Cade's promise to hold the realm in common, was of 
course presented for the purpose of securing followers 
and like other socialistic projDagandas, was contrary to 
established laws. 

Sec. 294. Sales of meat during Lent. — 

"Cade. They fell before thee like sheep and oxen, and 
thou behavest thyself as if thou hadst been in thine 
own slaughter-house; therefore thus will I reward 
thee: the Lent shall be as long again as it is, and 
thou shalt have a license to kill for a hundred lack- 
ing one."^ 
These lines no doubt refer to the statutes enacted during 
the reign of Queen Elizabeth, by the terms of which butch- 
ers were forbidden under penalty of the statute, to sell 
meat, during Lent.* It was provided, however, that as an 
exception to the imposition of these terms, a license might 
issue for the killing and sale of a certain number of 
beasts, nominally for the sake of those so disabled by sick- 
ness that they could not do without it.° 
This is the meaning Cade gives the statute, as he con- 

^ Bacon, Abr., Tenants in Common; Coke, Litt. 184b; 2 Bl. 
Comm. 179, 191; 4 Kent's Comm. 358. 

= Tiedeman, R. P. (3d ed.), sees. 178, 179. 

Cade elsewhere assures his followers: "Cade. And hencefor- 
ward all things shall be in common." (2' Henry VI, Act IV, 
Scene VII.) 

*2' Henry VI, Act IV, Scene IV. 

* V Reeve's History Eng. Law. 

sRolfe's 2' Henry VI, p. 219. notes. 



322 THE LAW IN shak:espeare. 

strues it, in favor of Dick the butcher, and his followers, 
for he will, in their special interest, double the period of 
his disability, but set at naught the impositions of the 
law and give him and them free reign to kill as they 
please. 

Sec. 295. Source of law — Biting statutes. — 

"Dick. Only, that the laws of England may come out of 
your mouth. 

• ••«•••• 

Cade. I have thought upon it, it shall be so. Away, 
burn all the records of the realm; my mouth shall 
be the parliament of England. 

John. Then we are like to have biting statutes, unless 
his teeth be pulled out."^ 

As law is but a rule of conduct prescribed by the su- 
preme power,- in England, when the monarchy was abso- 
lute in form, the king's mouth was the source of law, 
hence Cade's promise is not so far from the legal right 
he would have, if he were the absolute monarch of the 
realm, to make laws at his pleasure. He would burn all 
the records of the realm and his will be substituted for 
the acts and regulations of parliament, the law making 
body, under the form of government then obtaining. 

Sec. 296. Jurisdiction regal. — 

"Cade. Well, he shall be beheaded for it ten times. — Ah, 
thou say, thou serge, nay, thou buckram lord: now 
art thou within point-blank of our jurisdiction regal. "^ 

Considering the relish of Englishmen for meat, it is great 
wonder that the Queen had any but sick and disabled citizens, 
during the Lenten season in view of this enforcement of the stat- 
ute referred to. 

1 2' Henry VI, Act IV, Scene VII. 

= 1 Stephen, Comm. 24, 25. 

King Edward tells Clarence, in 3' Henry VI: "K. Edw. Ay, 
what of that? It was ray will and grant; And, for this once, my 
will shall stand for law." (Act IV, Scene I.) 

^ 2' Henry VI, Act IV, Scene VII. 



THE LAW IN SHAKESPEARE. 323 

Jurisdiction is the power to hear and determine a cause.* 
Jurisdiction attaches over the person and over the subject- 
matter of an offense and the court undertaking to deter- 
mine a cause, must generally be vested with jurisdiction 
of both kinds. And territorial jurisdiction is the power 
to determine a given cause, within the territory w^herein 
it is to be decided or tried.- 

Cade gloats over Lord Say, in these lines, and boasts 
that he has power both over the snbject-matter of his 
offense by the law of the sovereignty in which his tribunal 
is held, and also jurisdiction over his person, as he is 
within the power of the court, or, as the Poet puts it : "now 
art thou within point-blank of our jurisdiction regal." 

Sec. 297. Benefit of clergy. — 

"Cade. . . . Thou hast most traitorously corrupted 
the youth of the realm, in erecting a grammar- 
school: and, whereas, before, out forefathers had 
no other books but the score and the tally, thou hast 
caused printing to be used ; and, contrary to the king, 
his crown and dignity, thou hast built a paper mill. 
It will be proved to thy face, that thou hast men 
about thee that usually talk of a noun and verb ; and 
such abominibal words as no Christian ear can endure 
to hear. Thou hast appointed justices of the peace, 
to call poor men before them about matters that 
they were not able to answer. Moreover, thou hast 
put them in prison, and because they could not read, 
thou hast hanged them; when, indeed, only for that 
cause, they have been most worthy to live."^ 

These lines contain a direct reference to the "benefit 
of clergy," which was an exemption recognized by the 
English law, in favor of the culprit demanding it, of the 
death penalty imposed by the law, for the commission of 



1 Bacon, Abr., Courts; Thach. Cr. Cas. 202; 6 McLean, C. C. 355. 

- Bouvier's Law Dictionary. 

=•2' Henry VI, Act IV, Scene VII. 



324 THE LAW IN SHAKESPEARE. 

certain offenses. A milder form of punishment was sub- 
stituted for that provided for by law, in favor of those 
entitled to such benefit.^ 

A clergyman was exempt from capital punishment as 
often as he repeated the offense; but the laity, provided 
they could read, were exempted only for the first offense, 
but peers or peeresses were discharged for their first offense, 
without any reading at all, or any punishment being 
inflicted, but women commoners had no right to invoke 
the benefit of clergy. Instead of the punishment pro- 
vided by law as to commoners who could read, a substitut- 
ed punishment of burning the hand, was assessed under 
this privilege. Although the benefit of clergy originally 
extended only to the clergy, in time it came to be extended 
to all who could read, whether clergymen or not.- This 
privilege, however, was never extended to those guilty of 
treason, or of misdemeanors inferior to felony.-^ 

Cade construed the inability to read as constituting the 
offense for which the subjects had been put to death, but 
his harangue, although wrong, was no doubt intended, by 
the Poet, to present the injustice of such a plea; merely 
because a man was unable to read, he was punished — 
regardless of the irrelevancy of such fact to his guilt or 
innocence — while one possessing this accomplishment, was 
subjected to a lighter form of punishment, or allowed to go 
free. This plea was evidently abhorrent to the Poet's 
sense of justice. 



*1 Chitty, Cr. Law, 667-668. 

2 4 Bl. Comm. ch. 28. 

^1 Bishop's Cr. Law, sees. 622-624. 

This privilege, improperly given to the clergy and others pos- 
sessing learning, was abolished by statute, in England, by 7 Geo. 
IV, c. 28. And the benefit of clergy was abolished by Act of Con- 
gress as to offenses punishable with death, in 1790. 

Cade attempted to reverse the law and make the benefit of 



THE LAW IN SHAKESPEARE. 325 

clergy a crime, instead of a defense, as evidenced by the follow- 
ing: 

"Cade. Here's a villain. 

Smith. H'as a book in his pocket, with red letters in it. 

Cade. Nay, then he is a conjuror. 

Dick. Nay, he can make obligations and write court-hand. 

Cade. I am sorry for't: the man Is a proper man, on mine 
honour; unless I find him guilty, he shall not die, — Come, hither, 
sirrah, I must examine thee; What is thy name? 

Cleric. EmanueL . . . 

Cade. Dost thou use to write thy name? or hast thou a mark 
to thyself, like an honest plain dealing man? 

Clerk. I thank God, Sir, I have been so well brought up, that 
I can write my name. 

All. He hath confessed: away with him, he's a villain and a 
traitor. 

Cade. Away with him, I say; hang him with his pen and ink- 
horn about his neck." (2' Henry VI, Act IV, Scene II.) 

Lord Say was also pronounced a traitor, because he could speak 
French, (idem.) 

And Dick, the butcher, said: "The first thing that we do, let's 
kill all the lawyers." (Act IV, Scene II.) 

In 2' Henry VI, Dick, the butcher, a follower of Cade, is made 
to say: "Dick. But, methinks, he should stand in fear of fire, 
being burnt i'the hand for stealing of sheep." (Act IV, Scene II.) 

For interesting eases, wherein this privilege was invoked in 
the English courts, see 1 Salk. 61; Hale's Pleas of the Crown, by 
Amos, p. 24; Kelyng's Rep. (18 Car. 11.) 

Reeves, in his History of English Law, thus describes how the 
benefit of clergy was taken away from accessories before the 
fact in case of murder and other crimes, during the reign of 
Philip and Mary: "The statute of Edw. VI, which took away 
clergy from the principals in murder, had left accessories to 
enjoy the capacity they derived at common law from the benefit 
of clergy. It happened, in 3' and 4' Phillip and Mary, that one 
Smith had hired two persons to murder one RufEord. The wife 
of Rufford petitioned the House of Commons that Smith might, 
by act of Parliament, be deprived of his clergy. Upon this the 
Commons sent to the Queen, praying that she would order Smith 
to be brought from the Tower to the bar of the house. He was 
accordingly brought and the other parties confessing the whole 
matter, and Smith at length doing the same, the bill was passed. 



326 THE LAW IN SHAKESPEAEE. 

Sec. 298. Determining causes. — 

"Say. Long sitting to determine poor men's causes 
Hath made me full of sickness and diseases."^ 

Determining poor men's causes, was the function that 
Lord Say complains had brought upon him the diseases 
that he was afflicted with. A cause, is used in the sense 
of a cause of action, which accrues to a person when a 
wrong has been committed, or a duty violated. As one 
of the justices in eyre of the realm, it had been the duty 
of Lord Say to go over the kingdom, yearly, to hear the 
causes of the subjects* and this, he claimed, had broken 
down his health. 



Sec. 299. Maiden rent. — 

"Cade. . . . The proudest peer in the realm shall 
not wear a head on his shoulders, unless he pay me 
tribute; there shall not a maid be married, but she 
shall pay to me her maidenhead ere they have it: 
Men shall hold af me in ca.pite: and we charge and 
command that their waives be as free as heart can 
wish, or tongue can tell."^ 

This is a reference to the old custom of exacting what 
was known as maiden rent, from the tenant, by the lord, 
in lieu of the latter's privilege of spending the first night 
with the wife of the tenant. 

Such rent, known to the old English law, as maiden 
rent, was in the nature of a fine, paid to the lord of the 



But when it was sent up to the Lords, it was there strongly 
apposed, particularly by the clergy, who would not consent to 
any diminution of their ancient privileges; however, at last, it 
got through that house, and received the royal assent." And 
the next year there was a general law passed, taking clergy away 
from accessories before the fact in murder and other crimes. 
V Reeves' History Eng. Law, p. 158. 

» 2' Henry VI, Act IV, Scene VII. 

''Crabb's Eng. Law, 103-104; 3 Bl. Coram. 58. 

'2' Henry VI, Act IV, Scene VII. 



THE LAW IN SHAKESPEARE. 327 

manor, in consideration of the lord's relinquishment of 
his customary right of lying the first night with the bride 
of his tenant.^ 

Cade proclaims that he will enforce his right, as lord, 
to this barbarous custom, and makes a play upon the word 
capite, in connection with such custom.- 

Sec. 300. Bail.— 

"York. . . . The sons of -York, thy betters in their 
birth. 
Shall be their father's bail ; and bane to those 
That for my surety will refuse the boys."^ 

Bail, in practice, are those persons who become surety 
for the appearance of a defendant, in court, at his trial 
day.* 

Bail was first introduced, in English law, to mitigate the 
hardship imposed upon offenders, while in the custody of 
the sheriff, under arrest, the security thus offered standing 
to the sheriff in the place of the body of the offender, 
until his day of trial. 

Taking bail was made compulsory upon the sheriff by 
the statute 23 Hen. VI, c. 9,^ and the privilege of the 
defendant was rendered more valuable b}'' subsequent 
statutes.® 



^Cowel; Bouvier's Law Dictionary. 

' As capite, in Latin, means head, his meaning is clear that 
the subjects of the realm should hold by him, through the con- 
cession made by their wives, in accordance with this old custom 
or, otherwise, they should lose their heads, i. e., maidenheads. 
Ill Reeve's History Eng. Law, 510. 

" 2' Henry VI, Act V, Scene I. 
n Chitty, 286. 

5 See Statutes 23 Hen. VI, c. 9; III Reeve's Hist. Eng. Law, 
p. 48L 

«See Statutes, 12 Geo. I, c. 29; 21 Geo. II, c. 3; 19 Geo. Ill, 
c. TO. 



328 THE LAW IN SHAKESPEARE. 

The Poet here makes York demand that his sons be 
accepted as his bail, as if he knew of the statutes giving 
him the right to demand bail, enacted in the reign of 
King Henry VI. 

The Poet concludes that the dagger thrust into the pure breast 
of the loyal wife, Lucrece, "did bail it from the deep unrest Of 
that polluted prison where it breathed." (1725, 1726.) 

In the LXXIV Sonnet, the Poet thus discourses as to death: 
"But be contended: when that fell arrest 
Without all bail, shall carry me away. 
My life hath in this line some interest. 
Which for memorial still with thee shall stay." (1, 4.) 

The Poet tells his friend, in the CXXXIII' Sonnet: 
"Prison my heart in thy steel bosom's ward. 
But then my friend's heart let my poor heart bail." (9, 10.) 



CHAPTER XXIII. 

"THIRD PART OF KING HENRY THE SIXTH." 

Sec. 301. No inter-regnum, under English Law. 

302. Title by confirmation. 

303. Disinheriting heir. 

304. Estate-tail, upon condition. 

305. Acts of Parliament. 

306. Lady Grey's suit for husband's lands. 

307. Concubine. 

308. Richard the Third, an embryonic criminal. 

309. Richard's morbid vanity. 

310. Crime the basis of Richard's character. 

311. Elizabeth's plea of "Sanctuary." 

Sec. 301. No inter-regnum, under English law.— 

"York. He rose against him, being his sovereign, 
And made him to resign his crown, perforce. 

War. Suppose, my lords, he did it unconstrained, 
Think you, 'twere prejudicial to his crown? 

Exe. No ; for he could not so resign his crown, 

But that the next heir should succeed and reign. 

This dispute over the claims of York to the crown, is 
based upon the constitutional principal, in English law, 
that because of the interest of the public in the crown 
and the fact that the Government could not be destroyed, 
the king, as such, could not create a vacancy in the official 
head of the Government, but as the law put it ''the king 
never dies." This principal, which prevented any inter- 
regnum, ^ or vacancy in the Government, along with the 
rights of the direct issue from the last lawful holder, 
known as the law of primogeniture, is the basis of York's 
claim to the crown. That the claim was legally stronger 
than that of the house of Lancaster, is clear to those 

*3' Henry VI, Act I, Scene I. 
2 2 Bl. Comm. 191. 

(329) 



"1 



330 THE LAW IN SHAKESPEARE. 

familiar with the Enghsh common law. The heir, to be 
entitled to take in that character, must have been the 
nearest male heir of the whole blood, to the person who 
was last actually seized. This rule has obtained from the 
earliest ages.^ It is this seisin, which makes a person the 
stirps, or stock, from which all future inheritance, by 
right, is derived by right of blood. Hence, if the heir, on 
whom the inheritance has been cast, by descent, dies before 
he has acquired this seisin, his ancestor not himself, is the 
person last seized and other claimants must make them- 
selves his heirs.- York, therefore, showing a direct descent 
from the last Plantagenet, Edward Third, made out a 
prima facie better title to the crown than Henry VI, as 
these lords decided. 

Sec. 302. Title by confirmation. — 

"York. Confirm the crown to me, and to mine heirs. 
And thou shalt reign in quiet whilst thou liv'st. 



^Bracton, lib. 2, fol. 69a; 2 Hale's Hist. Com. Law, pp. 94, 
95, 98. 

^'Litt. sec. 8; Coke, Litt., lib; 2 Bl. Comm. 209; Hale's Hist. 
Comm. Law, c. 11. 

King Henry, in his dilemma, urged that Richard II had volun- 
tarily given up the crown to Bolingbroke, or Henry IV, and War- 
wick raised the question, after York claimed that it was forced 
upon him, whether or not the rights of hereditary monarchy 
would be affected by his act, even if it had been voluntary, and 
Exeter replied that it could not affect the rights of the next 
heir to the crown, regardless of whether the ancestor had volun- 
tarily or involuntarily attempted to give the crown to another. 
This was as the law would view it. 

In recognition of this constitutional principle of English law, 
the young Prince, asks his father, in 3' Henry VI: "Prince. 
Father, you cannot disinherit me: If you be king, why should 
not I succeed?" (Act I, Scene I.) 

Plowden shows how the death of the king causes the mere dis- 
union of the king's natural body, from his body politic, and the 
kingdom is demised or transferred to his successor, so the royal 
dignity or office remains perpetual. Plowd. 117, 234. 



THE LAW IN SHAKESPEARE. 331 

K. Hen. I am content: Richard Plantagenet, 
Enjoy the kingdom after my decease."^ 

A title by confirmation is a title derived by a conveyance 
or contract by which an estate that was otherwise void- 
able, or subject to dispute, is made firm and unavoidable. - 
To make a valid confirmation the confirmor, or the one 
who makes the confirmation, must be advised of his rights, 
and the title of the confirmee is not strengthened by the 
confirmation to the extent of making an otherwise void 
title good, although one merely voidable may be cured by 
confirmation, as it was a maxim of the common law, qui 
confirmat nihil dat.^ However, as the title of York, to 
the crown, was not void, but only the subject of dispute 
and was, prima facie stronger, in law, than that of Henry 
VI, this confirmation would have been sufficient to defeat 
the house of Lancaster, if the crown had been the subject 
for such disposition by the king. 

Sec. 303. Disinheriting heir. — 

''War. Why should you sigh, my lord? 
K. Hen. Not for myself, lord Warwick, but my son. 
Whom I unnaturally shall disinherit."* 

Disinheritance was the act, by which a person deprived 
his heir of an inheritance, that the heir, without such act, 
would have inherited.^ At common law, in other matters 
than the crown — in which the public was concerned as 
well as the individual holding as king — anyone could give 
his estate to a stranger and thus disinherit his heir appar- 
ent.« The intent to disinherit an heir, however, at com- 
mon law, must be clearly apparent from the language of 

* 3* Henry VI, Act I, Scene I. 

2 9 Coke, 142 a. 

»Coke, Litt. 295; Toullier, De. Civ. Fr. 1. 3, t. 3, c. 6n, 476. 

*3'Henry VI, Act I, Scene I. 

"Cooper, Justin. 495. 

•Taylor vs. Webb, Styl. 319. 



332 THE LAW IN SHAKESPEARE. 

the testator or last owner of property and if such intent 
was not clearly apparent, the heir would not be disin- 
herited.^ 

Sec. 304. Estate-tail, upon condition.— 

"K. Hen. ... I here entail 

The crown to thee, and to thine heirs forever; 
Conditionally, that here thou take an oath, 
To cease this civil war, and, whilst I live. 
To honour me as thy king and sovereign ; 
And neither by treason nor hostility, 
To seek to put me down and reign thyself."^ 

King Henry here attempts to entail the crown to York 
and his heirs,^ conditionally,* such estate tail, to vest, on 
his death, if the condition subsequent, i. e., if the war is 
stopped, if he is honored as his sovereign, until his death, 
and he did not, by treason or hostility, seek to put him 
down and reign himself, during his life, but the Poet did 
not use the words necessary to create such an estate, for 
in the creation of an estate tail, words of limitation must 
be used, which indicate clearly what heirs are to take, the 
usual form of limitation being to one and the heirs of 
"his body."" In other words, the limitation by the King, 
lacked the very essential of an estate tail, which, instead 

* Taylor vs. Webb, supra; Gardner vs. Sheldon, Vaugh. 262; 
Trent vs. Hanning, 7 East, 102, 103. 

Queen Margaret tells the King: "Q. Mar. Thou would'st have 
left thy dearest heart-blood there. Rather than make that savage 
duke thine heir, And disinherited thine only son." (3' Henry 
VI, Act I, Scene I.) 

Clifford tells the king, in 3' Henry VI: "Cliff. . . . Thou, 
being a king, bless'd with a goodly son, Didst yield consent to 
disinherit him, Which argued thee a most unloving father." (Act 
II, Scene II.) 

^ 3' Henry VI, Act I, Scene I. 

'Tiedeman, R. P. (3d ed.). Sec. 38; Coke, Litt. 224a. 
*Tiedeman, R. P. (3d ed.). Sees. 201, 203. 

"Tiedeman, R. P. (3d ed.). Sec. 39 and citations; 2 Bl. Comm. 
112-116. 



THE LAW IN SHAKESPEARE. 333 

of going to one's heirs generally — as here limited — go to 
the heirs of one's '^body."^ If the words, ''seed," "issue" 
or "children" had been used, in connection with the word 
"heirs," the estate, if executed in proper form, would have 
conveyed a good estate tail — if the crown had been a 
proper subject for such conveyance — but in the form here 
given, the technical common law estate tail was not 
created.- 

Sec. 305. Acts of Parliament. — 

"Edw. . . . You — that are king, though he do wear 
the crown, — 
Have caused him, by new act of parliament, 
To blot out me, and put his own son in."^ 

Parliament is the legislative branch of the English 
Government, consisting of the king, house of lords and 
house of commons.* The king is usually called a part of 
parliament, because of his prerogative of veto and the 
necessity of his approval of the "acts" of parliament, to 
give them effect as laws. Since the power of veto has 
never been exercised since queen Anne's time, however, 
the authority of parliament is now practically unlimited.-' 

^Coke, Litt. 27; 2 Bl. Comm. 115. 
==2 Prest. Est. 480-485. 

If Lord Bacon, or Lord Coke had been using words to create 
an estate tail no such failure to use the necessary common law 
words to create such an estate would have occurred. 

The Poet also makes the Queen fail to note this distinction 
and she, likewise, in speaking of the estate tail, fails to use 
words equivalent to the words of limitation necessary at com- 
mon law, in creating this character of estate. 

Queen Margaret asks the King: "Q. Mar. To entail him and 
his heirs unto the crown, What is it, but to make thine sepulchre. 
And creep into it, far before thy time?" (3' Henry VI, Act I, 
Scene I.) 

"3' Henry VI, Act II. Scene II. 

*1 Bl. Comm. 147, 157; 2 Stephen's Comm. 537. 

° May, Imperial Parliament. 



334 THE LAW IN SHAKESPEARE. 

Edward here charged Queen Margaret with wearing the 
crown of England and with having dominated the king 
to pass a law blotting out his title to the crown. 

Sec. 306. Lady Grey's suit for husband's lands. — 

"K. Edw. This lady's husband, Sir John Grey, was slain, 
His lands then seiz'd on by the conqueror : 
Her suit is now, to repossess those lands ; 
"Which we, in justice, cannot well deny."^ 

The w^idow Grey's claim was in the nature of that 
enforced by the old common law writ, Cui in vita, which 
was a writ of entry that lay for a widow against a person 
who was in possession of her land by claim derived from 
her husband in his lifetime.^ But the Poet presents her 
claim as derived from her husband, as it was "his lands" 
that the conqueror had confiscated, not hers. However, 
her suit, was to ''reposses those lands" and Edward, 
whether impressed with the comeliness of the widow or 
the strength of her claim, was not inclined to resist her 
title to the lands. 

Sec. 307. Concubine. — 

"L. Grey. And that is more than I will yield unto. 
I know, I am too mean to be your queen. 
And yet too good to be your concubine."^ 

Lady Grey is made by the Poet, by these lines, to refuse 
to acquire her lands, at the expense of her chastity. A 
concubine, in the law, is a woman who cohabits with a 
man, as his wife, without being married.* Among the 
ancients, concubinage was a species of marriage, and w^as 
the only marriage which those who did not enjoy the jus 
con nuhii, could contract. While recognized by law, as 
a natural marriage, by the ancients, the status gave no 

^3' Henry VI, Act III, Scene II. 

'6 Coke, 8, 9. 

= 3' Henry VI, Act III, Scene II. 

*1 Bishop's Cr. Proc. 1106; 1 Brown's Civ. Law, 80. 



THE LAW IN SHAKESPEARE. 335 

lawful rights, such as those which resulted from the civil 
marriage and the law permitting such natural marriages 
was repealed by the constitution of the Emperor Leo, in 
the year 886.^ 

Sec. 308. Richard III' an embryonic criminal. — 

"Glo. . . . love foreswore me in my mother's womb: 
And, for I should not deal in her soft laws, 
She did corrupt frail nature with some bribe, 
To shrink mine arm up like a wither'd shrub; 
To make an envious mountain on my back, 
Where sits deformity to mock my body; 
To shape my legs of an unequal size ; 
To disproportion me in every part, 
Like to a chaos or an unlick'd bear-whelp. 
That carries no impression like the dam. 
And am I then a man to be belov'd? 
O monstrous fault to harbor such a thought: 
Then, since this earth affords no joy to me, 
But to command, to check, to o'erbear such 
As are of better person than myself, 
I'll make my heaven — to dream uj)on the crown ; 
And, whiles I live, to account this world but hell. 
Until my misshap'd trunk, that bears this head, 
Be round impaled with a glorious crown. "- 

Shakespeare here lets Richard himself present his de- 
formity as an explanation of his criminal aims in life. 
Can it be possible that Shakespeare understood and thus 
attempted to account for his criminality, because of the 
malformation of the man, when in an embryonic condi- 
tion? The science of criminology teaches that this is one 
of the causes of criminals and the Poet in presenting this 
explanation of Richard's character, offered an explanation 
consistent therewith. L^pon this subject August Goll ob- 
serves: ''Embryology teaches us that creatures may be 
born so deformed as to seem to possess no resemblance to 
human beings, while a more minute examination discloses 
them to be in possession of the identical organs which 

^ Code Justinian; Bouvier's Law Dictionary. 
^3' Henry VI, Act III, Scene II. 



336 THE LAW IN SHAKESPEARE. 

characterize normal men; but owing to some peculiar 
sickly conditions the cells have not been able to develop 
normally — some pressure displaced them, prevented their 
functions, and caused malformations to such a degree that 
a hideous monstrosity was the result which otherwise 
might h ave had a free and harmonious development."^ 

1 Goll's Criminal Types, in Shakespeare, pp. 167, 168. 
Elsewhere this author observes, of this character, as presented 
by the Poet: "It is the genesis of his evil courses that calls for 
examination; it is the psychological reason for the coming into 
life of such a monster, the spiritual understanding of the origin 
of the infinite darkness which shrouds his heart, a darkness 
which the human eye vainly tries to pierce so long as it has not 
succeeded in getting at the cause of the darkness itself — this is 
the point of importance in Richard III." Idem. p. 167. 

Queen Margaret thus asks after Richard, in 3' Henry VI: 
"Q. Mar. . . . where is that devil's butcher, Hard-favor'd 
Richard? Richard, where art thou? Thou art not here: Murder 
is thy alms-deed; Petitioners for blood thou ne'er put'st back." 
(Act V, Scene V.) 

King Henry, before his murder by Richard, in the Tower, thus 
upbraids him, for the murder of his son, the Prince: 
"£". Hen. Thy mother felt more than a mother's pain. 

And yet brought forth less than a mother's hope; 

To-wit, an indigest deformed lump. 

Not like the fruit of such a goodly tree. 

Teeth had'st thou in thy head, when thou wast born. 

To signify, — thou cam'st to bite the world: 

And, if the rest be true, which I have heard," etc. 

(3' Henry VI. Act V, Scene VI.) 
And Richard himself, then soliloquizes, as follows: 
^'Olo. ... I, that have neither pity, love nor fear, 

Indeed, 'tis true, that Henry told me of; 

For I have often heard my mother say, 

I came into the world with my legs forward: 

Had I not reason, think ye, to make haste. 

And seek their ruin, that usurp'd our right? 

The midwife wonder'd; and the women cried 

0, Jesus bless us, he is born ivith teeth: 

And so I was; which plainly signifies — 

That I should snarl and bite and play the dog." 

(3' Henry VI, Act V, Scene VI.) 



THE LAW IN SHAKESPEARE. 337 

Sec. 309. Richard's morbid vanity. — 

"Glo. . . , yet, I know not, how to get the crown, 
For many lives stand between me and home ; 
And I, — like one lost in a thorny wood, 
That rents the thorns and is rent with the thorns, 
Seeking a way, and straying from the way; 
Not knowing how to find the open air, 
But toiling desperately to find it out, — 
Torment myself to catch the English crown: 
And from that torment I will free myself. 
Or hew my way out, with a bloody axe."^ 

In seeking a cause for his criminal nature, as if the Poet 
understood the deep science of criminology, Shakespeare 
here presents the natural morbid vanity of the deformed 
person, as one of the reasons for the criminal inclinations 
of Richard III. Upon this phase of the subject the 
scientific criminologist observes: ''Who does not know 
the morbid vanity from which deformed natures suffer? 
Their abnormal vanity continually occupies them with 
the thought of self, which is thereby pushed so unduly 
to the front that they are, as it were, hypnotized by it, and 
are blinded to the proper proportions of things. If their 
bodily defects make them exceptions, they will, also, be 
exceptional in winning great distinctions. They want to 
go far, to see others bend before them, then they may be 
reconciled to their misfortune. . . . They yearn 
after outward recognition, positions of honour, power and 
influence; they wish to hear themselves talked of, they 
wish to enjoy the incense of others, to receive marked 
demonstrations of regard."- 

Sec. 310. Crime the basis of Richard's character. — 

"Glo. . . . Why, I can smile, and murder while I 
smile ; 
And cry, content, to that which grieves my heart; 
And wet my cheeks with artificial tears. 



^3' Henry VI, Act III, Scene II. 

' Goll's Criminal Types in Shakespeare, pp. 193, 194. 



338 THE LAW IN SHAKESPEARE. 

And frame my face to all occasions. 

I'll drown more sailors than the mermaid shall; 

I'll slay more gazers than the basilisk; 

I'll play the orator as well as nestor, 

Deceive more slily than Ulysses could, 

And, like a Sinon, take another Troy: 

I can add colors to the chameleon; 

Change shapes, with Proteus, for advantages, 

And set the murd'rous Machiavel to school. 

Can I do this, and cannot get a crown? 

Tut: were it further off, I'll pluck it down."^ 

Commenting upon this criminal nature of the man, 
Richard, as portrayed by the Poet, the criminal expert, 
Goll said: "Richard III is the 'criminal by instinct' of 
the first water. Solely animated by his own personal am- 
bition, thirst for power, and the crown, without a spark of 
altruistic motive, without a thought at his succession of 
realizing any high aims, he attains his object by cunning, 
lying, impudence, or hypocrisy, and, chiefest by a series 
of the blackest crimes. No act of his is the result of 
momentary moods, impetuous emotions ; everything is the 
necessary consequence of cold, clear calculation. "- 

Sec. 311. Elizabeth's plea of sanctuary. — 

"Queen Elizah. I'll hence forthwith unto the sanctuary, 
To save at least the heir of Edward's right. 
There shall I rest secure from force and fraud."^ 

'3' Henry VI, Act III, Scene II. 

'Goll's Criminal Types in Shakespeare, pp. 165, 166. 

Speaking elsewhere of the splendid portrayal of the criminal 
by instinct which this character affords criminal science, Goll 
observes: ". . . in every case, he substitutes for the rights 
of all, his own rights; and in these 'own rights' he includes 
everything which his personal lusts and desires urge him to ob- 
tain. . . . this right is the fixed foundation of his mind ; it 
shows its effect everywhere, at all times and in all directions, as 
soon as an impulse to action makes itself felt in him." Idem. 
p. 161. 

'3' Henry VI, Act IV, Scene IV. 



THE LAW IN SHAKESPEARE. 339 

During the period of the world's history when the law's 
redress of wrongs was so inadequate and the ambition and 
cupidity of the race so often imposed such hardships upon 
the nobility, it is little wonder that they established a place 
where they would be secure from such attacks as those 
which threatened the Queen, in this play. When the 
dangerous game for place and power had gone against one 
and the arbitrament of war had decided for an opponent 
who sought one's life and family, the privilege of sanc- 
tuary was one very dear to Englishmen and it alone, fur- 
nished an abode free from the ''force and fraud" of the 
outer world. ^ The right of sanctuary dates from an early 
period in English history, for Alfred, Ethelred, and all 
subsequent Saxon kings, expressly recognized the right, 
by their laws, and in a state of society like that among the 
Anglo-Saxons, the immunity indulged to places of wor- 
ship, was not only politic, but humane and necessary^ as 
well. It prevented the shedding of blood and preserved 
the peace. Hence, we find, that from the earliest time, in 
England, places of public worship were held in such rev- 
erence that criminals flying thither were, during their 
stay, allowed protection from arrest, whatever their crime 
might be.^ If the person was drawn violently from the 
place where he had embraced sanctuary, he could plead 
this in abatement of the prosecution, during the reign of 
Edward III,^ but during the reign of Henry VIII, by 
statute, (27 Henry VIII, c. 19) the benefit of sanctuary 
was denied to all offenders guilty of high treason.* 

^ For description of the Sanctuary at Westminster, where Eliz- 
abeth fled, with her mother and three daughters, in 1470, which 
was destroyed in 1775, see Rolfe's 3' Henry VI, p. 215, notes. 

- 1 Reeves's History Eng. Law, p. 198. 

^ III Reeve's History Eng. Law. p. 331. 

* IV Reeve's History Eng. Law, p. 469. 

In a recent article in Law Notes, (Vol. 14, p. 51, June, 1910) 
discussing the ancient privilege of Sanctuary, the author ob- 
serves: 



340 THE LAW IN SHAKESPEARE. 

"That system was not always consistent or clear, but its main 
outlines were as follows: Sanctuaries were of two kinds — 
general, as all churches and churchyards; special, as St. Mar- 
tin's le Grand and Westminster. No doubt these last had orig- 
inally also a religious sanction. Such places were twice con- 
secrate; Pope and King, the canon and the common law, united 
in their favor. They protected felons, but not those guilty of 
sacrilege or (some held) of treason. They were not properly 
for debtors, whose reception was nevertheless justified by an 
ingenious quibble. Imprisonment might endanger life, and 
therefore (so the learned argued) the runaway debtor must 
be received. A man took sanctuary thus: — Having stricken 
(let us say) his fellow, he fled to the cathedral and knocked 
(with how trembling a hand!) at the door of the galilee. Over 
the north porch were two chambers where watchers abode night 
and day. On the instant the door swung open, and had scarce 
closed behind the fugitive when the galilee bell proclaimed to 
the town that another life was safe from them that hunted. 
Then the prior assigned him a gown of black cloth marked on 
the left shoulder with the yellow cross of St. Cuthbert, and 
therewith a narrow space where he might lie secure of life, 
though ill at ease. So it was at Durham. At Westminster the 
sanctuary man bore the cross keys for a badge, and walked in 
doleful state before the abbot at procession times; and there 
were, no doubt, countless variations. A phrase of the time re- 
veals how close the watch was now and again. Under Edward 
II it was complained that the sanctuary man might not remove 
so much as a step beyond the precincts, causa supcrffiii de- 
ponendi, without being seized and haled to prison. He was 
fed and lodged in some rough sort for forty days, within which 
time he must confess his crime before the coroner at the church- 
yard gate, and so constitute himself the king's felon. Then 
he swore to abjure the realm. The coroner assigned him a port 
of embarkation (chosen by himself), whither he must hasten 
with bare head, carrying in his hand a cross, not departing, 
save in direst need, from the king's highway. He might tarry 
on the shore but a single ebb and flow of the tide, unless it 
were impossible to come by a ship, in which case he must wade 
up to his knees in the sea every day. He was protected for 
another forty days, when, if he could not find passage, he re- 
turned whence he came, to try his luck elsewhere." 

• •••••••*•• 

"On the whole the privilege was strictly respected. For in- 
stance, the king's justices were wont to hold session in St. 



THE LAW IN SHAKESPEARE. 341 

Martin's Gate. They sat on the very border. The accused were 
placed on the other side of the street; a channel ran between 
them and their judges, and if they once got across tJiat they 
claimed sanctuary, and all proceedings against them were an- 
nulled. And one sees the reason why Perkin Warbeck took such 
care 'to squint one eye upon the crown and the other on the 
sanctuary' (as Bacon curiously phrases it) ; yet the great case of 
Becket is there to show that nothing was absolutely sacred in 
these violent years. Nor does it stand alone. In 1191, Jeffrey, 
Archbishop of York, and son of Henry II, was seized at the altar 
of St. Martin's Priory, Dover, and dragged, episcopal robes and 
all, through dirty streets to the castle; this, too, by order of 
William Longchamp, Bishop of Ely, and Papal legate. In 1378. 
Archbishop Sudbury complained in Parliament that one Robert 
Hawley had been slain at the high altar even while the priest 
was saying a mass. It was rumored indeed that one Thurstian, a 
knight, chasing a sanctuary man with drawn sword, was of a, 
sudden stricken with grievous ailments. But this and other 
like stories did not deter the citizens of London (circa 1349) 
from assembling at supper time in a great crowd, and dragging 
forth a soldier who had escaped on the way from Newgate to 
Guildhall, where he was being taken for trial. In another case 
(temp. Henry VI), where a youth had taken sanctuary after 
having foully slain a kind mistress, the good women about St. 
Martin's broke in and dispatched him with their distaffs. Of 
those who took sanctuary to good purpose the most famous was 
Elizabeth, widow of Edward IV, who, in 1471, registered herself 
a sanctuary woman in Westminster, and there sat, in Sir Thomas 
More's phrase, 'alow in the rushes.' But you have read the 
tragic story in Shakespeare. And in a later age 'beastly Skelton' 
(as Pope will have him), from that same Westminster safely 
lampooned the mighty Wolsey, though for that he needs must 
live and die there." 

"To catalogue the evils of the sanctuary system were to show 
lack of historical sympathy, nay, even of humor. The former 
days were not as these; it had its place with the shrine and the 
pilgrimage, the knight-errant, and the trial by ordeal in the 
strange economy of a vanished world. As the times grew modem 
its practical inconvenience was felt for the first time. Yet the 
occasion of the first assault on the privilege of sanctuary was one 
where the benefits were conspicuous, and the assailant had the 
worst of motives. It was the case just noted of Edward IV's 
widow; she had the young Duke of York as yet safe with her. 
Her enemies were at a loss for the moment, and Buckingham, 



342 THE LAW IN SHAKESPEARE. 

then the sworn ally of Richard of Gloucester, took occasion in the 
Privy Council to attack her place of refuge. 'There were two 
chief plague-spots in London,' he snarled: 'one at the elbows of 
the city (Westminster), the other in the very bowels thereof 
(St. Martin's le Grand). These places were the refuge of theeves, 
mirtherers, and malitious, heynous traytors! nay,' he added, 
'men's wives ran hither with their husbands' plate, and say 
they dare not abide their husbands for beating,' with more to 
the same effect. Had not Elizabeth yielded, Westminster might 
have witnessed a violation as affecting as that of Canterbury." 



CHAPTER XXIV. 

"KING RICHARD THE THIRD." 

Sec. 312. Richard's crimes prompted by his isolation 

313. Law of God and man. 

314. Acquittal of the accused. 

315. Accessory before the fact. 

316. Avouch. 

317. Disputing with Lunatic. 

318. Clothing villany with "holy writ." 

319. Warrant no protection against murder. 

320. Guilty conscience. 

321. Reward. 

322. Death without lawful conviction. 

323. Divine Law against murder. 

324. Benefit of "Sanctuary." 

325. Moveables. 

326. Bigamy. 

327. Levitical Law against niece marrying uncle. 

328. Richard the Third's inherited criminal instinct. 

329. Demise. 

330. Corrupted Justice. 

331. Swords as Laws, under Richard's reign. 

Sec. 312. Richard's crimes prompted by his isolation. — 

"Glo. ... I, that am rudely stamp'd, and want love's 
majesty, 
To strut before a wanton ambling nymph; 
I, that am curtail'd of this fair proportion, 
Cheated of feature by dissembling nature, 
Deform'd, unfinish'd, sent before my time. 
Into this breathing world, scarce half made up, 
And that so lamely and unfashionable. 
That dogs bark at me, as I halt them ; — 
Why I, in this weal piping time of peace, 
Have no delight to pass away the time ; 
Unless to spy my shadow in the sun, 
And descant on mine own deformity; 
And therefore. — since I cannot prove a lover 

(343) 



344 THE LAW IN SHAKESPEARE. 

To entertain these fair well-spoken days, — 

I am determined to prove a villain, 

And hate the idle pleasures of these days."^ 

In looking for the psychological reason for his very 
pronounced criminal appetite and the marked cruelty in 
his make-up, the criminologist can but look to the natural 
isolation which Richard's deformity forced upon him, as 
the genesis for his criminal course. This bodily defect 
must have been construed by the Poet as the reason for 
his criminalit}^, for he again and again presents it, as the 
reason for his extreme sensitiveness. Such deformity 
would naturally lead to so many humiliations, in a proud 
sensitive nature, as to make of him a lonely, revengeful 
creature, with his hand raised against all the world. 

Of this bodily defect, as a basis for his criminality, the 
criminal expert, Goll, in contemplating the character of 
Richard, observes: ''One only feels duties, as such, to 
one's own community. -The soldier feels no duties to the 
enemy, the European feels himself released from all duties 
of civilization, when he is called to action, among savage 
tribes. And to Richard everybody else is an enerny, a 
foreigner, with whom he has no connection, to whose race 
he does not belong. . . . Because he stands alone, 
every man's hand, has, from the first day, been lifted 
against him, therefore his hand, too, is lifted against 
every man, against all these hated, well-made people, who 
together form one community, opposed to him alone. He 
is at war with them all. And in war, war's deeds are 
done."- 



^ King Richard III, Act I, Scene I. 

= Goll's Criminal Types in Shakespeare, pp. 197, 198. 

In making love to Lady Anne, Richard taunts himself with his 
isolation: "I no friends to back my suit withal. But the plain 
devil and dissembling looks." (Act I, Scene II.) 

Richard thus moralizes, after the determination to put his wife 
to death, in King Richard III: "K. Rich. . . . Uncertain 
way of gain: But I am in so far in blood, that sin will pluck 



THE LAW IN SHAKESPEARE. 345 

Sec. 313. Law of God and man. — 

"Anne. Villain, thou know'st no law of God 'nor man ; 
No beast so fierce, but knows some touch of pity."^ 

Anne here declares that Richard is devoid of the first 
element of citizenship, being without fear of the law of 
either God or man. One without fear of the law of man 
alone, is a criminal, for criminality consists of following 
one's inclinations, regardless of the law, which protects 
the rights of others. If, added to this, one is also regard- 
less of the obligations of the Divine law, and recognizes 
no adherence thereto, he is, if possible, below the beasts, 
for, as the Poet has Anne say: "No beast so fierce but 
knows some touch of pity."^ 



on sin. Tear-falling pity dwells not in this eye." (Act IV, 
Scene II.) 

Referring to Richard III, Queen Margaret tells the Duchess of 
York, in King Richard III: "Q- Mar. Richard yet lives, hell's black 
intelligencer; Only reserv'd their factor to buy souls, and send 
them thither." (Act IV, Scene IV.) 

Contemplating his own character, before the battle with Rich- 
mond, King Richard III thus concludes as to himself: 
"K. Rich. I shall despair. — There is no creature loves me; 
And, if I die, no soul will pity me: — 
Nay, wherefore should they; since that I myself 
Find in myself no pity to myself. 
Methought the souls of all that I had murder'd 
Came to my tent: and every one did threat 
To-morrow's vengeance on the head of Richard." 

(Act V, Scene III.) 

*King Richard III, Act I, Scene II. 

' God was supposed, in the olden times, to lend assistance to 
the innocent and a prisoner was asked, before being put upon 
his trial, whether he would go to trial by ordeal, or by jury, i. e., 
by God or Ms country. If the former, he had the trial by battle, 
in which God was supposed to help the innocent, but if the latter, 
he was tried by a jury. 1 Chitty, Cr. Law, 416. 



346 THE LAW IN SHAKESPEARE. 

Sec. 314. Acquittal of the accused. — 

"Glo. . . . Vouchsafe, divine perfection of a woman, 
Of these supposed evils, to give me leave. 
By circumstance, but to acquit myself."^ 

Richard here asks of Anne the privilege of establishing 
his innocence of the charges she has brought against him. 
In criminal practice, acquittal is the absolution of a per- 
son charged with a crime or misdemeanor.^ Acquittals 
are either by introduction of the facts, after a trial, or by 
law, because of the application of the law to the facts as 
shown to exist. The acquittal here invoked, is, of course, 
because of the facts as Richard claims them to exist. 

Sec. 315. Accessory before the fact. — 

"Glo. ... Is not the causer of the timeless deaths, 
Of these Plantagenets, Henry and Edward, 
As blameful as the executioner?"^ 

Richard here puts the question as to whether or not the 
accessory before the fact, to these several murders, is not 
equally guilty, with the persons who carry out the mur- 
ders as planned. An accessory in the perpetration of a 
crime, is one who, although not the chief actor therein, 
is in some way concerned in the crime, either before or 
after the crime is committed. An accessory before the 
fact, is one who, though absent when it was committed, 
yet procured, counselled or commanded its commission.* 
An accessory after the fact, is one who, knowing a crime 
to be committed, receives, relieves, comforts or assists the 
felon. ^ Richard insists that the accessory before the fact 
is just as guilty as the executioner and attempts to thus 
shift the guilt from his own guilty shoulders to those of 
his brother. 



^ King Richard III, Act I, Scene II. 

' Coke, 2' Inst., 364. 

'King Richard III, Act I, Scene II. 

n Hale, Cr. PI. 615. 

M Bl. Comm. 37. 



THE LAW IN SHAKESPEARE. 347 

Sec. 316. Avouch. — 

"Glo. ... I will avouch, in presence of the king: 
I dare adventure to be sent to the Tower. "^ 

To avouch is to assert publicly, or deliberately, a mat- 
ter of fact, without equivocation, or vacilation, either by 
written declaration or by word of mouth, so that the fact 
thus asserted may be used as evidence of its existence. - 
Richard here asserts his willingness to make public state- 
ment of the facts asserted, even if it results in his being 
arrested and sent to the Tower. 



Gloster tells Anne, in King Richard III: "Glo. . . . This 
hand, which, for thy love, did kill thy love. Shall, for thy love, 
kill a far truer love; To both their deaths shalt thou be acces- 
sary." (Act I, Scene II.) 

Explaining to her wronged lord, how her chastity was forced, 
the noble Lucrece narrated: 

"Immaculate and spotless is my mind; 
That was not forced; that never was inclined 
To accessary yieldings, but still pure 
Doth in her poison'd closet yet endure." (1656, 1660.) 

' King Richard III, Act I, Scene III. 

" Bouvier's Law Dictionary. In Deutoronomy occurs the fol- 
lowing: "Thou hast avouched the Lord this day to be thy God." 
Deut. 26, 17. 

Speaking of his contemplated charges against Cardinal Wolsey, 
Buckingham said, in King Henry VIII: "Buck. To the king I'll 
say't; and make my vouch as strong, as shore of rock." (Act I, 
Scene I.) 

Horatio is made to say, in Hamlet: "Hor. Before my God, I 
might not this believe. Without the sensible and true avouch. Of 
mine own eyes." (Act I, Scene I.) 

Brabantio charged Othello with seduction of his daughter, be- 
fore the Duke, in the following lines: 
"Bra. I therefore vouch again. 

That with some mixtures powerful o'er the blood, 
Or with some dram conjur'd to this effect. 
He wrought upon her." (Act I, Scene III.) 

Othello tells the Senators, in regard to Desdemona accompany- 
ing him to the wars: "Vouch with me, heaven; I therefore beg 
it not. To please the palate of my appetite." (Act I, Scene III.) 



348 THE LAW IN SHAKESPEARE. 

Sec. 317. Disputing with lunatic. — 

"Dor. Dispute not with her, she is lunatic."^ 

A lunatic, in law, is one who is without the power of 
reasoning which is possessed by individuals in health.- 
A lunatic was said to be non compos mentis, not of sound 
mind, or undt i.standing, and for this reason the person so 
found was no! responsible, in law, for his or her acts.^ 

Of course not having any understanding or reasoning 
powers, a lunatic would be incapable of reasoning or dis- 
pute, in an intelligent manner, so this is why all further, 
dispute is discouraged, in this instance. 

Sec. 318. Clothing villainy with holy writ. — 

"Glo. . . . And thus I clothe my naked villiany 
With old odd ends, stol'n forth of holy writ; 
And seem a saint, when most I play the devil."* 

This verse is frequently quoted by lawyers, to meet the 
conditions in lawsuits, Avhen an attorney or a party to the 
cause assumes a holy attitude as a cloak for some piece of 
villainy. The Poet seemed to possess a natural dislike 
for hypocrisy and never hesitated to express, in no un- 
measured terms, his contempt for those who assumed a fair 
seeming outside, for the purpose of Avinning favor, or by 
feigning to be better than they really were. A false pre- 
tender to virtue and piety, or one who assumes such virtues 
when he has them not, is, indeed, an object of contempt, 
to all alike, so in presenting this side of human nature, the 
Poet but performs his object, of expressing the universal 
truth in human nature, as he sees it. 

^King Richard III, Act I, Scene III. 
^ Coke, Litt. 247. 
M Coke, 124. 

Lord Stanley advises Queen Elizabeth, in King Richard III: 
"Stan. . . . Bear with her weakness, which, I think, pro- 
ceeds. From wayward sickness, and no grounded malice." (Act 
1, Scene III.) 

'King Richard III, Act 1, Scene III. 



THE LAW IN SHAKESPEARE. 349 

Sec. 319. Warrant no protection against murder. — 

"1 3Iurd. What: art thou afraid? 

2 Murd. Not to kill him, having a warrant for it ; but to 
be damn'd for killing him, from the which no war- 
rant can defend me."^ 

The murderer here replies that he is not afraid of the 
law of man, for being armed with his warrant for the 
death of the prisoner, he is legally entitled to protection 
for his act. This, of course, is true, as matter of law.^ 
But a willful murder is never justified because of the 
possession of a warrant by the officer doing the killing.^ 
It is not so much the law of man, as it is the law of God, 
that the murderer fears, in this instance, however, for he 
is not without some religious scruples and knows the war- 
rant can furnish him no protection for the violation of 
the Divine law against murder.* 

Sec. 320. Guilty conscience. — 

"1 Murd. So when he open his purse to give us our re- 
ward, thy conscience flies out. 

2 Murd. I'll not meddle with it, it is a dangerous thing, 
it makes a man a coward ; a man cannot steal, but it 
accuseth him; a man cannot swear but it checks 
him; a man cannot lie with his neighbor's wife, 

^King Richard III, Act I, Scene IV. 

^ 1 Bishop's Cr. Proc. 187-193. 

' 1 Bishop's Cr. Proc. 206-218. 

* Exodus, XX, 13. 

A capital sentence, in England, has always been carried into 
effect by warrant. 1 Bishop's New Cr. Proc, Sec. 1336. 

Before commission of the murder, when they go to Gloster, for 
the warrant, the first murderer said: "We are my lord; and 
come to have the warrant." And he tells them: "Glo. . . . 
I have it here about me." (Act I, Scene III.) 

Menenius tells the tribunes of the people, in Coriolanus, on 
their condemning Coriolanus, untried : "Men. Do not cry havoc, 
where you should but hunt, with modest warrant." (Act III, 
Scene I.) 



350 THE LAW IN SHAKESPEARE. 

but it effects him: 'Tis a blushing, shame-faced 
spirit, that mutinies in a man's bosom; it fills one 
full of obstacles."^ 

Conscience, in the law, is that faculty which leads us to 
decide as to our actions, condemning that which is wrong 
and commending the right. In other words, it is self- 
knowledge, or the principle which enables us to determine 
between right and wrong. The law, being based upon 
reason, pays the greatest deference to the individual con- 
science, so that what is known as the conscience clause of 
criminal laws, exempts those who have conscientious 
scruples against the death penalty, from jury service. - 
Courts of equity are said to be "courts of conscience," and 
those who act in obedience to the dictates of reason or con- 
science, are protected in the law. The murderer, before 
commission of the crime, acts in violation of such dic- 
tates and is entitled to no law for such an act, because 
the law runs with and not against the conscience. 

The above lines and others wherein the Poet presents 
the promptings of the conscience to the criminal, are fre- 
quently quoted in lawyers' work. 



^King Richard III, Act I, Scene IV. 
'2 Kent's Coram. 13, et suh. 

Before the sleeping Clarence awakes, the 2d murderer said: 
" 'Faith, some certain dregs of conscience are yet within me." 
(King Richard III, Act I, Scene IV.) 

Queen Margaret tells Richard, in King Richard III: "Q. Mar. 
. . . . The worm of conscience still begnaw thy soul." (Act 
I, Scene III.) 

Speaking of the tyrant, Richard, Oxford is made to say, in 
King Richard III: 
"Oxf. Every man's conscience is a thousand sword. 

To fight against that bloody homicide." (Act V, Scene II..) 

Speaking, after awakening from his dream, before the battle 
with Richmond, Richard III said: "K. Rich. My conscience 
hath a thousand several tongues. And every tongue brings in a 
several tale. And every tale condemns me for a villain." (Act 
V, Scene III.) 



THE LAW IN SHAKESPEARE. 351 

In bidding farewell to his friends, before his execution, Buck- 
ingham tells them, in King Henry VIII: "Buck. . . . And. 
if I have a conscience, let it sink me. Even as the axe falls, if 
I be not faithful." (Act II, Scene I.) 

The duke of Suffolk, talking with the lord Chamberlain, as to 
the contemplated divorce of the king and his attraction for Anne 
Boleyn, said: 

"Cham. It seems, the marriage with his brother's wife, has 
crept too near his conscience. 

Suff. No, his conscience has crept too near another lady." 
(Act II, Scene II.) 

Urging his conscience as a reason to excuse his infatuation for 
Anne Boleyn, King Henry VIII said: "Would it not grieve an 
able man to leave so sweet a bed fellow? But, conscience, con- 
science, O, 'tis a tender place, and I must leave her." (Act II, 
Scene II.) 

Speaking with Cardinal Wolsey, as to his contemplated divorce 
suit, King Henry VIII said: "K. Hen. O my Wolsey, The quiet 
of my wounded conscience; Thou art a cure fit for a king." (Act 
II, Scene II.) 

And again, the King said: "K. Hen. This respite shook the 
bosom of my conscience, enter'd me, yea, with a splitting power, 
and made to tremble the region of my breast." 

• • • • •,• • • • • • 

"Thus hulling in the wild sea of my conscience, I did steer 
toward this remedy, whereupon we are now present here together; 
that's to say, I meant to rectify my conscience." (Act II, 
Scene IV.) 

After his fall Cardinal Wolsey said, in regard to the charges 
against him: "Wol. I feel within me, a peace above all earthly 
dignities, a still and quiet conscience." (Act III, Scene II.) 

And speaking of Lord Chancellor More, chosen in his place, he 
said: "May he continue long in his highness' favor, and do 
justice for truth's sake, and his conscience." (Idem.) 

Speaking of the beauty of Anne Boleyn, in King Henry VIII, a 
gentleman (?) said: "Our king has all the Indies in his arms. 
And more, and richer, when he strains that lady: I cannot blame 
his conscience." (Act IV, Scene I.) 

Cranmer tells his peers, in the Council Chamber, in King 
Henry VIII: "Cran. . . . That I shall clear myself, Lay all 
the weight ye can upon my patience, I make as little doubt, as 
you do conscience in doing daily wrongs." (Act V, Scene II.) 



B52 THE LAW IN SHAKESPEARE. 

3ec. 321. Reward. — 

•'1' Murd. Remember our reward, when the deed's done, 
2' Murd. Come, he dies; I had forgot the reward.''^ 

A reward is an offer of recompense, given by authority 
of law, for the performance of some act for the public 
good, which is to be paid when the act is performed.^ A 
reward may be either offered by the Government, or by 
a private person and, of course, in this instance it was 
the latter case. 

The reward was recognized, at common law, as such 
a potent factor in its effect upon the one desirous of the 
reward, that informers, entitled to reward, were not com- 
petent witnesses, in actions wherein the conviction or 
acquittal of a person, being tried, depended on the evi- 
dence of such informer.^ 



Aaron, the Moor, said to Lucius, in Titus Andronicus: 
"Aar. I know thou art religious. 

And hast a thing within thee, called conscience." 

(Act V, Scene I.) 

Contemplating the effect of his play, upon his Uncle, Hamlet 
said: ''Ham. . . . The play's the thing, Wherein I'll catch 
the conscience of the king." (Act II, Scene II.) 

And after discoursing upon the uncertainties of that some- 
thing after death which "must give us pause," Hamlet concludes: 
"Thus conscience does make cowards of us all; And thus the 
native hue of resolution. Is sicklied o'er with the pale cast of 
thought." (Act III, Scene I.) 

*King Richard III. Act T, Scene IV. 

-4 Bl. Comm. 294. 

U Phillipps, Evid., 92, 99. 

Speaking of Buckingham's arrest, King Richard asks, in Rich- 
ard III: 

"K. Rich. Hath any well-advis'd friend proclaim'd 
Reward to him that brings the traitor in?" 

(Act IV, Scene IV.) 



THE LAW IN SHAKESPEARE. 353 

Sec. 322. Death without lawful conviction. — 

"Clar. . . , Before I be convict by course of law, 
To threaten me with death, is most unlawful."^ 

To take away or deprive anyone of any right, except by 
course of law, is most unlawful, but of all the rights of the 
citizen, the right of personal security is the greatest and 
hence, to take one's life, except by "course of law," is 
the greatest injustice that can be offered one. A convic- 
tion, in practice, is the legal proceeding, by record, by 
wdiich the guilt of a person accused of crime, is legally 
ascertained and upon which the sentence or judgment is 
founded.- It is necessary that a lawful conviction precede 
a judgment or sentence and of course, to go clandestinely 
to a prison and take one, a prisoner, without trial, or law- 
ful conviction and take his life, is the rankest injustice, 
as Clarence contended with his murderers. 

Sec. 323. Divine law against murder. — 

''Clar. Erroneous vassal: the great king of kings 
Hath in the table of his law commanded. 
That thou shalt do no murder; Wilt thou then. 
Spurn at his edict, and fulfill a man's? 
Take heed, for he holds vengeance in his hand. 
To hurl upon their heads that break his law."^ 

When the murderers told Clarence that they were to 
kill him, in accordance with the order of the King, he 
confronts them with the ten commandments and espe- 
cially the commandment against murder,* and this law 
or edict he cites as the law of "the great King of kings." 
As compared to the mere order of the king, the law of 



'King Richard III, Act I, Scene IV. 
= 1 Bishop's Cr. Law, 223. 
=• King Richard III, Act I, Scene IV. 
* Exodus, 20, 13. 

The murderer asks Clarence: "1 Murd. How can'st thou 
urge God's dreadful law to us. When thou hast broke it in such 
dear degree?" (Act I, Scene IV.) 



354 THE LAW IN SHAKESPEARE. 

the Lord, given to Moses on Mount Sinai, is invoked by 
Clarence, with the plea that if this Divine law is violated 
the murderers had best take heed, for the vengeance of the 
Lord will be hurled upon their heads that break his law. 

Sec. 324. Benefit of sanctuary. — 

"Buck. , . . You break not sanctuary in siezing 
him. 
The benefit thereof is always granted 
To those whose dealings have deserv'd the place, 
And those who have the wit to claim the place : 
This prince hath neither claimed it, nor deserv'd it: 
And therefore, in mine opinion, cannot have it : 
Then, taking him from thence that is not there, 
You break no privilege nor charter there. 
Oft have I heard of sanctuary men ; 
But sanctuary children, ne'er till now."^ 

The right of sanctuary is here referred to and Buck- 
ingham contends that the privilege or benefit of sanctuary 
does not extend to children, but only to adults who have 
the wit to claim the privilege. Of course this is a narrow 
construction of the law. The right of sanctuary, at com- 
mon law, was the right to claim exemption from service 
of criminal or civil process while the person against whom 
such process was addressed, was the inmate of a religious 
house, or sanctuary. Complete immunity to the civil 
law was afforded by this privilege.- Religious sanctuaries 
were quite common, in Europe, at an early day and they 
afforded complete protection to all persons from arrest, 
whether accused of crime, or pursued for debt.^ 

But it was always essential to plead the right of sanc- 
tuary and if a criminal who had resorted to a sanctuary, 
neglected to claim the exemption from the civil laws, he 

»King Richard III, Act III, Scene I. 

^ Bouvier's Law Dictionary. 

'Under the Anglo-Saxons, the immunity indulged to places 
of worship was both humane and politic, for it avoided the 
shedding of blood. I Reeve's History Eng. Law, p. 198. 



THE LAW IN SHAKESPEARE. 355 

was held to have waived the benefit of sanctuary, so to this 
extent the claim of Buckingham was correct, as presented 
by the Poet.^ 

Sec. 325. Movables. — 

"Glo. . . . And, look, when I am king, claim thou 
of me 
The earldom of Hereford, and all the movables 
Whereof the king, my brother, was possess'd,"^ 

Eichard here promises Buckingham all the personal 
property and chattels of which the King died possess'd, 
as movables, in law, are those things which attend the 
person of the owner, in contradistinction to those things 
which are immovable, or fixed. ^ This is peculiarly a law 
term and is rarely used by others than lawyers, because 
of its technical meaning. 



*III Reeve's History Eng. Law, p. 331; IV Reeve's History 
Eng. Law, p. 253; Bro. Sanct. 11. By 26 Henry VIII, c. 13^ the 
privilege of sanctuary was denied to those guilty of high trea- 
son, and by other statutes during this reign, those claiming 
sanctuary were subjected to certainly limitations and required, 
while enjoying the privilege, to wear certain insignia, or badges 
to distinguish them. IV Reeve's Hist. Eng. Law, p. 469. 

Cardinal Wolsey, after his disgrace, sought the benefit of 
sanctuary, at the Abbey of Leicester, in King Henry VIII, as 
follows: "GriJ. . . . O father Abbot, an old man, broken 
with the storms of state. Is come to lay his weary bones among 
ye; give him a little earth for charity." (Act IV, Scene I.) 

Aufidius is made to say in Coriolanus: 
"Auf. . . . nor sleep, nor sanctuary, being naked, sick: nor 
fane, nor Capitol 
The prayers of priests, nor times of sacrifice, 
Embarquements all of fury, shall lift up 
Their rotten privilege and custom 'gainst 
My hate to Marcius." (Act I, Scene IX.) 

*King Rcihard III, Act III, Scene I. 

'2 Bl. Comm. 384; 2 Stephen's Comm, 67; Tiedeman, R, P. 
(3d ed.). Sec. 1. 



356 THE LAW IN SHAKESPEARE. 

Sec. 326. Bigamy.— 

"Buck. ... A beauty-waning and distressed widow, 
Even in the afternoon of her best days, 
Made prize and purchase of his wanton eye, 
Seduc'd the pitch and height of all his thoughts 
To base declension and loath'd bigamy."^ 

Because of the former contract, by King Edward, to 
marry the Lady Lucy, Buckingham here urges that he 
was, at law, her lawful husband and hence his later mar- 
riage with Lady Gray, was illegal, since he was the hus- 
band of a living wife already. This conclusion, of course, 
is far fetched, but it was used for the purpose. 

Bigamy is the M^Ilful contracting of a second marriage, 
when the contracting party knows that the first is still 
subsisting.^ The construction adopted by Buckingham, 
in this verse, is rather that of the canonists, who treated 
it as bigamy to have once married a widow. ^ 

Sec. 327. Levitical law against niece marrying uncle. — 

"K. Rich. Tell her, the king, that may command, en- 
treats. 

Q. Eliz. That at her hands, which the king's King for- 
bids."* 



Later, in the same play, Buckingham, in vain, urges his claim 
to "The earldom of Hereford and the movables," which had 
been promised him. (King Richard III, Act IV, Scene II.) 

' King Richard TIT, Act III, Scene VII. 

»1 Russell, Crimes, 187; 2 Kent's Comm. 69. 

= 6 Bacon's Abr., 454, 500. 

For effect, in the spiritual court, of the espousal agreement 
made by Edward, with Lady Lucy, see 6 Bacon's Abr., p. 461. 

Urging the illegality of King Edward's marriage to Elizabeth 
Gray, because of the pre-contract of marriage by the King to 
Lady Lucy. Buckingham contends, in King Richard III: "Btick. 
You say, that Edward is your brother's son; So say we too, but 
not by Edward's wife: For first, he was contract to Lady Lucy." 
fAct III, Scene VII.) 

*King Richard III, Act IV, Scene IV. 



x 



THE LAW IN SHAKESPEAEE. 357 

In this attempt to induce the mother to deliver her 
daughter into the hands of the murderer of her sons, 
Richard calculates, without reckoning with the mother 
instinct. After violating every sacred thing on earthy the 
Poet hurls back^ the proffed advantage offered the mother, 
for her daughter's preferment in marriage with the mur- 
derer. Other relations could be violated, with impunitj. 
Not the eternal source of humanity. Richard's dialectics 
were puerile against this shield of nature. 

The mother points him to the Levitical law, "Thou 
shalt not uncover the nakedness of thy father's brother,"* 
as a Divine impediment which would forbid her daughter 
from contracting such an illegal marriage^ for this, as she 
tells him, "the king's King forbids." 

Sec. 328. Eichard III' inherited criminal instinct* — 

"Duch. . . . Thou cam'st on earth to make the 

earth my hell. 
A grievous burden was thy birth to me; 
Tetchy and wayward was thy infancy; 
Thy school-days, frightful, desperate, wild and 

furious ; 
Thy prime of manhood, daring, bold, and venturous ; 
Thy age confirm'd, proud, subtle, sly and bloody^ 
More mild, but yet more harmful, kind in hatred: 

* Leviticus, Ch. XVIII, 14. 

For construction and application of this spiritual law, in both 
the civil and ecclesiastic courts, in Europe, see 6 Bacon's Abr., 
pp. 454, 500. 

Replying to King Richard's suit, for her daughter's hand. 
Queen Elizabeth asks him: 

"Q. EUz. What were I best to say? her father's brother 
Would be her lord? Or shall I say, her uncle? 
Or. he that slew her brothers and her uncles? 
Under what title shall I woo for thee? 
That God, the law, my honour, and her love. 
Can make seem pleasing to her tender years?" 

(Act IV, Scene IV.) 



358 THE LAW IN SHAKESPEARE. 

What comfortable hour can'st thou name, 
That ever grac'd me in thy company?"^ 

From these lines it is apparent that the Poet, in his 
representation of the character of Richard, bases his crim- 
inal instincts upon what, in modern times, would be 
known to the law as inherited neurosis. Tracing his in- 
herited criminal instinct, the criminologist has said : "His 
grandfather is executed by Henry V, for villainous treach- 
ery to his king, hired by French money for the act, yet 
with the secret intention of placing one of his own blood 
on the throne. Richard's father spent hLs whole life in 
agitating and plotting to get his presumed right to the 
throne recognized in which he finally succeeded, until he 
was killed in the battle of Sandal after having been taken 
prisoner by Henry VI, Queen Margaret and Clifford. 
That such a mind, restless, intriguing, and greedy after 
power, might be inherited by the son, Richard, and in 
him appear in a more marked degree, is, according to the 
law of heredity, quite a near possibility, and may at least 
explain a certain inclination to crime in him."- 



» King Richard III, Act IV, Scene IV. 

* Goll's Criminal Types in Sliakespeare, pp. 168, 169. 

Queen Margaret refers to Richard's natural criminality, as 
follows, in King Richard III: "Q. Mar. . . . Thou that wast 
seal'd in thy nativity, The slave of nature and the son of hell." 
(Act I, Scene III.) 

The Duchess of York thus bewails the birth of her son, Rich- 
ard, in King Richard III: 

"Duch. . . . O my accursed womb, the bed of death; 
A cockatrice hast thou hatch'd to the world, 
Whose unavoided eye is murderous." (Act IV, Scene I.) 
Queen Margaret taunts the Duchess of York, with having given 
birth to such a criminal as Richard III, as follows: 
"Q. Mar. . . . Forth from the kennel of thy womb hath crept, 
A hell-hound, that doth hunt us all to death: 
That dog, that had his teeth before his eyes. 
To worry lamba, and lap their gentle blood; 
That foul defacer of God's handiwork; 



THE LAW IN SHAKESPEARE. 359 

Sec. 329. Demise. 

"Q. Eliz. . . . Tell me what state, what dignity, what 
honour, 
Canst thou demise to any child of mine?"^ 

The Queen here asks to know what conveyance or grant 
Richard can make to any of her children, which will ma- 
terially assist them. A demise, at law, is a posthumous 
grant, either in fee, for life, or for years.^ Unless, upon 
his dissolution, her child would be benefited, there is 
apparently no reason for the union asked for. 

Sec. 330. Corrupted justice. — 

''Buck. . . . Vaughan and all that have miscarried 
By underhand corrupted foul injustice, 

Even for revenge mock my destruction."^ 
After having assisted Richard to rise to the kingdom by 
the crimes that made it possible for him to possess the 
crown, and after he had assisted him to corrupt the foun- 
tains of justice and trample under foot the rights of oth- 
ers, it is a just retribution that brings Buckingham to a 
realization of what it is to prosper by "underhand cor- 
rupted foul injustice." It is no longer the rights of 

That excellent grand tyrant of the earth, 

That reigns in galled eyes of weeping souls, 

Thy womb let loose, to chase us to our graves." 

(Act IV, Scene IV.) 

The Duchess of York, tells Richard II, as he goes to war: 
"Duch. Either thou wilt die, by God's just ordinance. 
Ere from this war thou turn a conqueror, 
Or I with grief and extreme age shall perish. 
And never look upon thy face again." (Act IV, Scene IV.) 

»King Richard III, Act IV, Scene IV. 

'2 Bouvier's Inst., 1774, et seq. 

Of course the Queen here, does not concede that Richard is the 
lawful king, but treats his reign as a usurpation of the right to 
the crown, hence he could not transmit such right, on his death. 

'King Richard III, Act V, Scene I. 



360 THE LAW IN SHAKESPEARE. 

others that he sees denied them, but it is now his very- 
own that is threatened; his own life is in the way of the 
tyrant who has concluded to murder him, rather than 
comply with his promise to give him the lands and mov- 
ables of the earl of Hereford, for his assistance in the 
criminal elevation he had risen to. Buckingham cannot 
now seek justice, after denying it to others and must 
suffer loss of his own life by the same foul ''corrupted 
injustice" he had dealt out to others.^ 

Sec. 331. Swords as laws. — Under Richard's reign. — 

^'K. Rich. . . . Conscience is but a word that cow- 
ards use, 
Devis'd at first to keep the strong in awe; 
Our strong arms be our conscience, swords our law."^ 

In keeping with the whole course of Richard's career, 
and the criminal instinct, which has as a basis, the dis- 
regard of law and others rights, the Poet here sums up 
the whole total of Richard's character. He had, from 
the first, known no law, but his own ambition and greed; 
the rights of others wxre to him, but as an obstacle to be 
overcome, when in the wav of gratification of his own 
ambition; devoid of conscience, he used the strong arm 
of the kingdom, to further his own self-interests and 
knew no law, but that of the sword. A fitting close, is 
this summing up of the character of this kingly outlaw, 
who decried the law and the rights of his fellows; ridi- 
culed conscience, and in lieu thereof, advocated nought 
but "strong arms" and ''swords" for "our law." 



^ An act is said to be corruptly done, when it is done with the 
intent to give some advantage inconsistent with official duty 
or the lawful rights of others. Bouvier's Law Dictionary. 

Replying to the entreaties of the Cardinals to place her cause 
in the King's hands. Queen Katherine said: "Q. Katli. . . . 
Heaven is above all yet; there sits a Judge, that no king can 
corrupt." (Henry VIII, Act II, Scene V.) 

^ King Richard III, Act V, Scene III. 



CHAPTER XXV. 

"KING HENRY THE EIGHTH." . 

Sec. 332. Privity. 

333. Wasting manors in military preparations. 

334. Bucltingham's trial for treason. 

335. "Come into Court." 

336. Pleading cause. 

337. Session of Court. 

338. Challenging prejudiced Judge. 

339. Retainers. 

340. Appearance in Court. 

341. Under "hand and seal." 

342. Motion to dismiss appeal. 

343. Dilatory pleas. 

344. Adjournment of Court. 

345. Trial at Law. 

346. Inventory. 

347. Commission for office. 

348. Writ of Praemunire. 

349. Decree of divorce from Katherine. 

350. Simony. 

351. Purging one's self of guilt. 

352. Verdict based on perjury. 

353. Accusing one, "face to face." 

354. Accusing Counselor. 

355. Acting as both Judge and Juror. 

356. Crime of heresy. 

357. Appeal by King's ring. 

Sec. 332. Privity.— 

''Buck. Why the devil, 

Upon this French going-out, took he upon him, 
Without the privity o' the king, to appoint 
Who should attend on him?"^ 

Privity, in the law, is the mutual or successive relation- 
ship to the same rights of property.^ There is privity of 

»King Henry VIII, Act I. Scene I. 
='Bouvier's Law Dictionary. 

(361) 



362 THE LAW IN SHAKESPEARE. 

contract, which is the relation existing between two con- 
tracting parties/ and the privity of estate, which is the 
relationship existing between those being interested in 
the same lands, as landlord and tenant.^ 

Buckingham uses the word in the popular, rather than 
the legal meaning, of consent or concurrence, meaning to 
say that the Cardinal, in this instance, had acted without 
the concurrence or consent of the King. 

Sec. 333. Wasting manors in military preparations. — 

"Buck. 0, many 

Have broke their backs with laying manors on 'em 
For this great journey. What did this vanity 
But minister communication of 
A most poor issue. "^ 

The subject of discussion here is the unprofitable result 
of the recent war w4th France and Abergavenny observes 
that he had kinsmen 

". . . three at least, that have 
By this so sicken'd their estates that never 
They shall abound as formerly." 

Buckingham replies, with a play on the legal term 
''manor," meaning that many of the English lords had 
assumed such military authority and preparations as to 
squander their estates, or waste their manors in the w^ar 
with France. 

A manor, in English law, is a freehold estate, held by 
the lord of the manor, who is entitled by immemorial 
custom, to maintain a tenure between himself and the 
copyhold tenants, whereby a feudal relation is maintained 

*Viner, Abr.; Lawson, Contracts (2d ed.), 276, 305. 
= Tiedeman, R. P. (3d ed.), sees. 138, 157. 

The Friar, in describing the causes of the death of Juliet and 
Romeo, said: "All this I know, and to the marriage, Her nurse 
is privy." (Act V, Scene III.) 

'King Henry VIII, Act I, Scene I. 



THE LAW IN SHAKESPEARE. 363 

between them.^ But as sub-infeudation was abolished, in 
England, by the statute qui emptores,- and no manor 
could arise by operation of law, since that date, it follows 
that all existing manors must trace their existence to a 
time preceding the enactment of this statute.^ 

Sec. 334. Buckingham's trial for treason. — 

"1 Gent. . . , The great duke 

Came to the bar; where, to his accusations, 

He pleaded still not guilty, and alleg'd 

Many sharp reasons to defeat the law. 

The king's attorney, on the contrary, 

Urg'd on the examinations, proofs, confessions 

Of divers witnesses; which the duke desir'd 

To him brought, viva voce, to his face: 

At which appear'd against him, his surveyor; 

Sir Gilbert Peck, his chancellor; and John Court 

Confessor to him; with that devil monk, 

Hopkins, that made this mischief. 

All these accused him strongly ; which he fain 
Would have flung from him, but, indeed, he could 

not: 
And so his peers, upon this evidence. 
Have found him guilty of high treason. Much 
He spoke, and learnedly, for life : but all 
Was either pitied in him, or forgotten. 

When he w^as brought again to the bar, — to hear 
His knell rung out, his judgment, — he was stirr'd 
With such an agony, he sweat extremely. 
And something spoke in choler, ill and hasty : 
But he fell to himself again, and, sweetly, 
In all the rest show'd a most noble patience."* 

This narration of the trial of the duke of Buckingham, 
for treason, is the same as the histories of the trial give 

»Tiedeman, R. P. (3d ed). 

-This statute was passed during the reign of Edw. I. 

^ Tiedeman, R. P. supra. 

*King Henry VIII, Act II, Scene I. 



364 THE LAW IN SHAKESPEARE. 

it/ The conviction of the Duke occurred in the tenth 
year of the King's reign, upon the most flimsy pretexts, 
such as the charge that he had declared all the acts of 
Henry VII to be improperly done. To encompass the 
conviction, the Chief-Justice held that "if one intend the 
death of the king it is high treason, for that he is the 
head of the commonwealth," though no act be done, and 
the guilty intent to commit the treason, was established 
by words alone.- History records that the execution of 
this Duke was obtained by the pressure of the royal 
power, without a pretence of legal cause,^ and certain it 
is that no act since the commencement of this reign, when 
the tyranny of the Star Chamber was inaugurated, to 
coerce and overrule the peers and members of parliament, 
so aroused and terrified the populace and made the way 
for the arbitrary power, which later culminated in the 
King's divorces and trampling under foot the sacred laws 
of both church and state, and the terrorizing of the peo- 
ple, to accomplish his arbitrary will, as this execution 
of the duke of Buckingham, in the name of law.^ 

Sec. 335. "Come into Court."— 

"Scribe. Say, Henry, king of England, come into the 

court. 
Crier. Henry, King of England, etc. 
K. Hen. Here. 
Scribe. Say, Katherine, queen of England, come into 

court. 
Crier. Katherine, queen of England," etc.^ 

The practice was founded by the Normans, in England, 
of having a "crier" to make the various proclamations in 
court, under the direction of the judges or scribes, and 
the duty of this officer, as presented in this verse, was to 

^Year-Book, 13 Hen. VIII, fol. 12. 

-Ante idem. 

'Finlason's note, to IV Reeve's Hist. Eng. Law, p. 275. 

* Mackintosh's Hist. Eng., vol. II, c. 3. 

= King Henry VIII, Act II, Scene IV. 



THE LAW IN SHAKESPEARE. 365 

call the parties litigant, when a case was on for trial, in 
order that the parties to the cause would be given due 
notice of the trial and appear in person in court. ^ The 
form of the old judgments, by default, was that the "de- 
fendant, being called, comes not, but makes default," etc., 
and this was an essential part of the decree. 

So the Poet in the preliminaries leading up to the trial 
of the divorce suit between Katherine and Henry VIII, 
followed the practice obtaining then in England. 

Sec. 336. Pleading cause. — 

"Wol. You have here, lady, 

(And of your choice,) these reverend fathers; men 

Of singular integrity and learning, 

Yea, the elect of the land, who are assembled 

To plead your cause."^ 

Pleading is the formal mode of alleging or setting up 
the facts which constitute the support or defence of a party 
litigant, in a trial in a court of justice.^ The object of 
pleading is to secure a clear and distinct statement before 
the court of the claims of the different litigants, so that the 
controverted points may be exactly known, examined and 
decided, to the end that justice may be done. 

The Cardinal here, insists that the rights of the Queen 
are being protected according to the formal modes of the 
procedure obtaining at that period, as she has "men of 
singular integrity and learning," . . . "who are as- 
sembled to plead" her cause. 



^Wharton's Law Lexicon; Bouvier's Law Dictionary. 

= King Henry VIII, Act II, Scene IV. 

'Coke, 48b; Coke, Litt. 303; 7 Bacon's Abr. 457. 

Notwithstanding all this assurance, the Queen knew that re- 
gardless of the justice of her cause, or the power of her plead- 
ing, the Judges would decide against her, as they were impan- 
elled to do the King's will, so her course in this trial was a 
wise one, since a worthy plea is not proof against a prejudiced 
judge. 



366 THE LAW IN SHAKESPEARE. 

Sec. 337. Session of court. — 

"Cam. His grace 

Hath spoken well, and justlj^: Therefore, madam, 
It's fit this royal session do proceed."^ 

Session, is the time for which a court regularly sits for 
the transaction of the business which may come before it. 
Session is the same as a term of court, for it includes the 
day when the court convenes and ends on the day of the 
adjournment of court.^ 

In refusing the application for a continuance, by the 
Queen, the Cardinals desired to subserve the will of the 
King and rush the determination of the cause to a con- 
clusion at that session of the court. 



Sec. 338. Challenging' prejudiced judge. — 

"Q. Kath. ... I do believe, 

Induc'd by potent circumstances, that 



In asking the right of an attorney for Queen Katherine, in 
her divorce suit, Cardinal Wolsey, addresses the King: "Wol. 
I know your majesty has always lov'd her, So dear in heart, not 
to deny her that A woman of less place might ask by law. 
Scholars, allow'd freely to argue for her." (Act II, Scene II.) 

^King Henry VIII, Act II, Scene IV. 
^ Bouvier's Law Dictionary. 

In Othello, the Moor of Venice (Act I, Scene II), the follow- 
ing occurs: 
"0th. Where will you that I go. 

To answer this your charge? 
Bra. To prison: till fit time 

Of law, and course of direct session. 

Call thee to answer." 
From these lines Shakespeare places the arrest of Othello at 
a time when the court was not in session, but during the vacation 
of court and Brabantio tells him he must go to prison to await 
the next session of court. A session of court is when the court 
convenes for the trial of cases. The court consists of the judge, 
sheriff, clerk, jury and other court officers and the meetings of 
the court are called the sessions. 



THE LAW IN SHAKESPEARE. 367 

You are mine enemy; and make my challenge, 

You shall not be my judge : for it is you 

Have blown this coal betwixt my lord and me,^ — 

Which God's dew quench : Therefore, I say again, 

I utterly abhor, yea, from my soul, 

Refuse you for my judge."^ 

Since impartiality is the first duty of a judge, if he has 
even the slightest interest or bias in a cause to be tried 
before him, he ought to disqualify himself from sitting as 
a judge, even without objection of a party interested, for 
the maxim is, aliquis non debet esse judex in propria 
causa.^ If the Cardinal had had due regard to the pro- 
prieties of the situation, therefore, when the Queen pub- 
licly charged his prejudice and unfairness toward her, he 
would have refused to sit in judgment on her cause, re- 
gardless of the strict legal right of the Queen to challenge 
him because of such prejudice. But the practice obtain^ 
ing at that period did not provide for such challenge on 
account of bias of the judge, although it did because of 
such bias by a juror, and she was perhaps not within the 
strict letter of the law, in urging this objection to the 
trial by Cardinal Wolsey. 



^King Henry VIII, Act II, Scene IV. 
^8 Coke, 118. 

Urging her objection to Cardinal Wolsey, because of the influ- 
ence the king had over him, as her judge, Queen Katherine again 
said: "Again, I do refuse you for my judge; and here, before 
you all, appeal unto the pope, to bring my whole cause 'fore his 
holiness, and to be judg'd by him." (Act II, Scene IV.) 

The Queen had no legal right to challenge the judge to try her, 
for the exceptions or challenges which go to the jurors, on their 
preliminary examinations, are not extended to the Judge, but 
the right claimed by the Queen, because of the bias and prejudice 
of the Judge against her, is equivalent to that now recognized 
by law, under what is known as the change of venue statutes, 
where a party can complain of the- bias and prejudice of the 
Judge and secure an impartial tribunal to try the cause. (Coke, 
1' Inst., 294.) 



368 THE LAW IN SHAKESPEARE. 

Queen Katherine denied the authority of the Cardinal to try 
the divorce case between herself and the King, as the marriage 
contract was both a civil contract and a spiritual rite, as viewed 
by the Church and she did not, according to the Catholic faith, 
recognize the right of a temporal Court, to sever the holy bonds. 
That this contention was strongly urged in the courts and 
many cases justified the contention, see 6 Bacon's Abr., pp. 
454, 500. 

The legislation during the reign of Henry VIII, showed a con- 
tinuous strife and agitation against the power of the Church 
of Rome, principally as a means of enabling the King to avoid 
his different marriages. To cut off Catherine's appeal to Rome, 
the statute 24 Henry VIII, c. 12, was passed rehabilitating the 
statutes of Edward I and III and Richard II and Henry IV, 
against foreign jurisdiction, providing, among other things, that 
in all matrimonial causes, the same should be heard and finally 
determined within the King's jurisdiction and authority and not 
elsewhere, regardless of any appeals, or process from the see of 
Rome (IV Reeve's Hist. Eng. Law, pp. 314, 315). Prior to this 
statute, to show the legality of the Queen's appeal, in her divorce 
suit, to the Pope of Rome, it had been decided only a few years 
before, in this same reign, that as matrimony was a spiritual 
rite, where a papal bull of dispensation in a marriage had been 
pleaded, this would be given effect, and would make an other- 
wise void marriage legal, (Year-Book, 12 Plenry VIII, fol. 6) and 
this being true, it would naturally follow that the same effect 
would be given on appeal from the civil courts, a conclusion like- 
wise formerly recognized by a decision preceding the trial of 
the Queen's divorce suit. (Sandes' case, Year-Book, Hen. III.) 
True, it had been held that no appeal would lie to Rome as to 
causes which could be effectually determined in England, (Year- 
Book, Edw. V) but of course this could not apply to a cause such 
as a marriage contract, for this is purely a spiritual rite and 
one over which the Church alone had jurisdiction (Year-Book, 
20 Hen. VL 25.) 

After the King's marriage to Anne Boleyn, and the act of 
succession, (25 Hen. VIII, c. 22) it was thought prudent by all 
means to stigmatize the marriage with Catherine as illegal, so 
a clause was inserted in the statute making all marriages illegal 
within the Levitical degree and of course this included a mar- 
riage to the widow of a brother. But after tiring of the Mother 
of Elizabeth, the King then had passed a statute, (32 Hen. VIII, 
c. 38) making all marriages solemnized by the Church, and fol- 
lowed by copulation and birth of children legal, and he soon 



THE LAW IN SHAKESPEARE. 369 

Sec. 339. Retainers. — 

"Q. Kath. . . . You have, by fortune, and his high- 
ness' favours, 
Gone slightly o'er low steps; and now are mounted 
Where powers are your retainers : and your words, 
Domestics to you, serve your will, as't please 
Yourself pronounce their office."^ 

The Queen, in this verse spoke in the legal terms of 
lawyers. A retainer is a fee given to a lawyer to insure his 
future services either in the prosecution or defense of a 
lawsuit, or the performance of some other legal service. - 
The Cardinal, according to the expressions of the Queen, 
had reached such height that he did not bot];;ier with small 
affairs, but received retainers from the powers of the earth 
alone. 

Sec. 340. Appearance in Court. — 

"Q. Kath. ... I will not tarry; no, nor ever more, 
Upon this business, my appearance make 
In any of their courts."^ 

Appearance, in legal practice, is the coming into court, 
of a party to a cause, whether as plaintiff or defendant.* 
No formality is required on the part of the plaintiff in 
entering his appearance for the filing of the suit does this ; 
but on the part of the defendant, more particularity is 
required. Appearance may either be entered by person- 
ally appearing to the action, or by entering the appear- 
ance in a formal way, by entries of record in the court. 
When one desires to plead to the jurisdiction of the court, 

afterward espoused Catherine Howard. This latter statute was 
to abolish the effect of the canonical decree, as this marriage was 
forbidden by the canon law, although not by the Levitical de- 
gree. (IV Reeve's Hist. Eng. Law, pp. 314-317; 330-335.) 

^ King Henry VIII, Act II, Scene IV. 
*3 Chitty, Practice, 116. 
'King Henry VIII, Act II, Scene IV. 
*Bouvier's Law Dictionary. 



370 THE LAW IN SHAKESPEARE. 

as Katheriiie did, in this instance, appearance by an attor- 
ney is improper, for the appointment of the attorney, as 
an officer of the court, would admit the jurisdiction.^ A 
married woman, when sued without her husband, at com- 
mon law, had the right to personally appear,^ so Katherine 
had evidently had good legal advice, in pursuing the 
course she did in refusing to enter her appearance in the 
court presided over by Cardinal Wolsey. 

Sec. 341. Under hand and seal. — 

"K. Hen Unsolicited 

I left no reverend person in this court ; 
But by particular consent proceeded. 
Under your hands and seals. "^ 

"Under hand and seal," are formal words, in the law, 
indicating the formal execution of a document, required 
to be sealed, to give it validity. It is the customary man- 
ner of closing a written document, to be executed by two 
or more, the formal words being, "Witness our hands and 
seals," or "Under our hands and seals," as adopted by the 
King here. The King is addressing himself to the law 
members of his court, assuring them that he had acted 
in a disinterested manner, having the writs issued in a 
legal, formal manner, by leaving no "reverend person" 

^ 5 Watts & S., 215. 
*1 Chitty, PI. 398. 

The Poet treats the entry of an appearance in the legal way 
and after Katherine had questioned the jurisdiction of the Court, 
she left, so that she would not be held to have waived the ques- 
tion of the court's jurisdiction over her person. As an appear- 
ance is treated as a voluntary entry of one's person into court 
and dispenses with the necessity of process, the good Queen 
thus claimed her rights in a strictly legal manner and did not 
pursue a course that would estop her from afterward treating 
the proceeding as a nullity or questioning the jurisdiction of the 
court, over her person. (Bouvier's Law Dictionary.) 

^King Henry VIII, Act IL Scene IV. 



THE LAW IN SHAKESPEARE. 371 

in the court, but proceeding "under . . . hands and 
seals." If certain judicial writs were presented without 
the prerogative seal, they were void; the officer sealin^g 
such writs was called the "sealer of writs," and the undue 
prominence given by the Poet to the seals attached to 
these writs, shows his familiarity with the requirements 
of the practice obtaining in such cases.* 

Sec. 342. Motion to dismiss appeal. — 

''Cam. . . , Meanwhile must be an earnest motion 
Made to the queen, to call back her appeal, 
She intends unto his holiness.'^ 

A "motion," in legal practice, is the application of one 
of the parties to a cause, or his counsePs application, for 
him, for some rule or order which he thinks is necessary, 
in the ordinary progress of the cause, to get relieved from 
some matter which would work injusticCj if the motion 
were refused.^ The Cardinal observes that the Queen's 
appeal will delay the termination of the King's suit for 
divorce and recommends that "earnest motion" shall be 
made to persuade her to dismiss her appeal to the Pope. 

Sec. 343. Dilatory pleas. — 

*'K. Hen. I may percieve, 

These cardinals trifle with me: I abhor 
This dilatory sloth and tricks of Rome."* 

Dilatory pleas are those which have for their object the 
dismissal, suspension, or obstruction of a suit, without 
touching the merits of the controversy, until the impedi- 
ment or obstacle insisted upon shall be removed.^ The 
Queen's course in this divorce suit, came within the class 



1 3 Coke, Inst., 169. 

-King Henry VIII, Act II, Scene IV. 

33 Bl. Comm. 305. 

* King Henry VIII, Act II, Scene IV. 

•* Bouvier's Law Dictionary. 



372 THE LAW IN SHAKESPEARE. 

of pleas known as dilatory pleas, in that she did not want 
to submit herself to the jurisdiction of the court, or meet 
the cause on its merits, but endeavored to obstruct the pro- 
ceeding by other than a trial on the merits. 

The King here objects to the tactics followed by the 
Queen and the Cardinals in granting her additional time, 
in the cause. First, she asked for a continuance of the 
cause, to enable her to confer with her friends in Rome, 
and this being denied her, she objected to the proceeding, 
before Cardinal Wolsey, because of his bias and prejudice 
against her; this being denied her, she questioned the 
jurisdiction of the court; refused to enter her appearance 
and left the court. The Cardinals then decided that they 
had no jurisdiction, unless they could persuade her to 
withdraw or dismiss her appeal to Rome and of this prac- 
tice, the King complained, and called it "dilatory sloth." 

Sec. 344. Adjournment of court. — 

"Cam. So please your highness, 

The queen being absent, 'tis a needful fitness 
That we adjourn this court till further day."^ 

Adjournment of court is to put off or re-set another day 
for the trial of a cause, or the transaction of the business 
of the court.^ Adjournments are either sine die, or to 
court in course, or temporary or until some other day, 
before the regular term of court, in course. The adjourn- 
ment mentioned by the Cardinal here, is the latter kind 
and w^as made necessary by the action of the Queen, in 
refusing to enter her appearance and to submit to the 
jurisdiction of the court over her person. 

»King Henry VIII, Act II, Scene IV. 
==2 Sh. Bl. Comm. 186. 

Menenius tells Brutus, in Coriolanus: "Men. . . . you wear 
one a good wholesome forenoon, in hearing a cause between an 
orange-wife and a fosset-seller; and then rejourn the controversy 
of three-pence to a second day of audience." (Act II, Scene I.) 



THE LAW IN SHAKESPEARE. 373 

Sec. 345. Trial at law. — 

"Cam. . . , if the trial of the law o'ertake you, 
You'll part away disgrac'd."^ 

A trial at law, is the examination, before a competent 
tribunal, according to the laws of the land, of the facts put 
in issue in a cause, for the purpose of determining such 
issue. 2 The object of the threat of the Cardinal was to 
deter the Queen from her course in insisting upon her 
appeal to Rome, or a trial according to the forms of law, 
and the inducement is held out that the King, because of 
his previous regard for her, will deal more gently with 
her than a court, influenced by him would do, and that 
she had better avoid a trial at law, because of the result- 
ing disgrace that would accrue to her, from this proceed- 
ing. Of course this was a subterfuge, to assist the King 
in his unholy inclinations. 

Sec. 346. Inventory. — 

"K. Hen. Forsooth, an inventory, thus importing, — 
The several parcels of his plate, his treasure, 
Rich stuffs and ornaments of household ; which 
I find at such proud rate, that it out-speaks 
Possession of a subject."^ 

An inventory is a list, schedule, or enumeration, in 
writing, containing, article by article, the goods and chat- 
tels, rights and credits, together with the lands and tene- 
ments of a person or persons.* 

* King Henry VIII, Act III, Scene I. 
^ 3 Bl. Comm. 333. 

^ King Henry VIII, Act III, Scene IT. 
"2 Bl. Comm. 514; 4 Bacon's Abr., 86. 

Surrendering his earthly effects to the king, after the issuance 
of the writ of praemunire against him, Cardinal Wolsey said, in 
King Henry VIII: 
"Wot. And, — pr'ythee, lead me in: 

There take an inventory of all I have. 

To the last penny; 'tis the kings." (Act III, Scene II.) 



374 THE LAW IN SHAKESPEARE. 

The King here enumerates the articles composing the 
inventory, or the general classes of the assets of the Car- 
dinal, such as his plate, treasures, etc., which would nat- 
urally be the form of the legal inventory, if the same 
were prepared by a lawyer. The list totaling so much as 
to show the dangerous nature of the Cardinal's acquisitions 
the King concludes to confiscate his property, under the 
writ of 'praemunire, known to the law at that time. 

Sec. 347. Commission for office. — 

"Wol Stay, 

Where's your commission, lords? words cannot carry 
Authority so weighty."^ 

A commission, in law, in the sense used by the Cardinal, 
is a written document, in the nature of letters-patent, 
granted by the King or Government, under the public 
seal, to persons appointed to an office, giving authority 
to perform the duties of the office.^ 

The Cardinal will not take the mere words of the 
Lords, for their authority to thus confiscate his office and 
immure his person, but demands their commission, or 
authority from the king. 

Sec. 348. Writ of Praemunire.— 

"8u§. Lord cardinal, the king's further pleasure is. 
Because all those things, you have done of late 

Taunting Cardinal Wolsey over the lost inventory of his riches, 
at the expense of the King, King Henry VIII said to him: 
"K. Hen. Good my lord, you are full of heavenly stuff, and bear 
the inventory, of your best graces in your mind." (Act III, 
Scene II.) 

A citizen, speaking of the wrongs suffered at the hands of 
Gains Marcius, in Coriolanus, said: "1 Cit. . . . the leanness 
that afflicts us, the object of our misery, is as an Inventory to 
particularize their abundance." (Act I, Scene I.) 

» King Henry VIII. Act III, Scene II. 
* Rutherforth, Inst., 105. 



THE LAW IN SHAKESPEARE. 375 

By your power legatine within this kingdom, 

Fall into the compass of a praemunire, — 

That therefore such a writ be sued against you; 

To forfeit all your goods, lands, tenements, 

Chattels and whatsoever, and to be 

Out of the king's protection: — This is my charge."^ 

A writ of praemunire was a writ addressed to a repre- 
sentative of the Pope to compel the restitution of prop- 
erty taken without the authority of the civil Government, 
and to punish the papal representative for his act in main- 
taining the Pope's authority, in defiance of the rights 
of the Civil Government.^ The writ owed its existence 
to certain statutes passed during the reign of Edward I 
and later reigns and was due to the growing tendency upon 
the part of the Government, to restrain, within proper 
limits, the grasping hand of the Roman church, in civil 
affairs. The writ provided for the enforcement of these 
statutes used the words praemunire facias, to command a 
citation of the guilty person, hence this name was applied 
not only to the writ, but to the offense of maintaining 
the Papal power, in defiance of the civil authorities.^ 

The Cardinal is charged with having, while acting for 
the Pope, defied the civil authority of the King, and 
hence of having fallen "into the compass of a praemu- 
nire," his goods and tenements are declared forfeited and 
he is without the protection of the king. 



^ King Henry VIII, Act III, Scene II. 

'Coke, Litt. 129. 

»Coke, Litt. 129; 7 Bacon's Abr., 690, 694. 

As presented by the Poet, the proper form of judgment in a 
praemunire, at the suit of the king was against the defendant, 
"that he be out of the protection of the king; that his lands and 
tenements, goods and chattels, shall be forfeited to the king." 
Coke, Litt. 129b; 3 Coke, Inst., 125, 218; 7 Bacon's Abr., p. 693. 

For history of the law upon the writ of praemunire, see III 
Reeve's Hist. Eng. Law, pp. 122, 123. 



376 THE LAW IN SHAKESPEARE. 

Sec. 349. Decree of divorce from Katherine. — 

''1 Gent. . . . The archbishop 

Of Canterbury, accompanied with other 
Learned and reverend fathers of his order, 
Held a late court at Dunstable, six miles off 
From Ampthill, where the princess lay ; to which 
She oft was cited by them, but appear'd not: 
And, to be short, for not appearance, and 
The king's late scruple by the main assent 
Of all these learned men she was divorc'd, 
And the late marriage made of none effect."^ 

In this verse, the Poet show^s that the decree of divorce 
from his marriage with Katherine, was by default, as she 
failed to enter her appearance, although "she oft was 
cited by them," and the king was thereby adjudged to 
have never contracted a lawful marriage with her. 

The basis for this judgment was the king's scruple, or 
his conscience, which was the reason assigned why his 
marriage was void, since it was within the Levitical degree, 
and against the mandate of the statute. (32 Hen. VIII, 
c. 88.) 

Katherine's appeal was disallowed by the "reverend 
fathers of his order," and by the Archbishop of Canter- 
bury, since it was concluded by them that the marriage 
was within the Levitical degree and the temporal and not 
the spiritual courts had cognizance of the offense, if the 
marriage w^as illegal, which they decided it to be. 

The prohibition by the Levitical law, was carried to 
uncles and nieces, aunts and nephews, because upon the 
death of father and mother, they come into the law as 
standing in loco parentis, and it was considered necessary 
to propagate the same reverence of blood as if the relatives 
were of nearer relationship.- 

* King Henry VIII, Act IV, Scene I. 
^ 6 Bacon's Abr., p. 458, et seq. 

This late Court at "Dunstable, six miles off," to which Queen 
Katherine was "oft cited," and which was presided over by the 



THE LAW IN SHAKESPEARE. 377 

Sec. 350. Simony. — 

"Grif. . . . He was a man 

Of an unbounded stomach, ever ranking 
Himself with princes: one, that by suggestion 
Ty'd all the kingdom : simony was fair play ; 
His own opinion was his law: I'the presence 
He would say untruths; and be ever double, 
Both in his words and meaning."^ 

Simony, at the common law, w^as the buying or selling 
of holy orders or of ecclesiastical benefices. In other 
words, it was an unlawful agreement to receive temporal 
rewards for something holy or spiritual.- 

The offense of simony was regarded with such severity, 
at the common law, that a general pardon, was held not 
to extend to one guilty of this offense;^ but "neither the 
consideration of the greatness of the offense of simony, 
nor the provision made against it by the canon or common 
law, was sufficient to put a stop to this offense," as ob- 

"learned men," named by the Poet, as the action referred to was 
judicially reported, on the Queen's failure to appear, after service 
of the citations, treated her as in contempt; and decreed that her 
"pretended marriage always was and still is null and invalid; 
that it was contracted and consummated contrary to the will and 
law of God; that it is of no force or obligation and that it always 
wanted and still wants, the strength and sanction of law." (1 
State Trials, 259, 260.) This decision, of course, was in sub- 
serviance to the will of the King, regardless of the legality of 
the marriage, but if the first premise had been well taken, then 
the conclusion was right, for a contract or other act, which is 
void, — aside from the marriage contract, which on grounds of 
public policy will be upheld, after many years to legitimize chil- 
dren born during the existence of the relation — is not helped by 
lapse of time, but the maxim is, ''Quod ab initio nan valet intractu 
temporis non convalescet" or as this is usually translated, that 
which was void, in the beginning, cannot be made valid by lapse 
of time, so the decree, as the Poet gives it, and ag it was, in 
fact, had the outward semblance to legality. 

^ King Henry VIII, Act IV, Scene I. 
^ Bouvier's Law Dictionary. 
3 9 Bacon's Abr., 23. 



378 THE LAW IN SHAKESPEARE. 

served by Matthew Bacon, in his Abridgment/ so it was 
at length prohibited, under severe penalties, by the stat- 
ute 31 Elizabeth, c. 6, enacted during the life of the Poet. 



Sec. 351. Purging one's self of guilt. — 

"K. Hen. ... I know, 

You cannot with such freedom purge yourself, 
But that, till further trial, in those charges, 
Which will require your answer, you must take 
Your patience to you and be well contented 
To make your house our tower."- 

Purging one's self of crime, at common law, was the 
clearing of one's self of an offense charged, by denying 
the guilt on oath or affirmation.^ 

Canonical purgation was the denial of the offense, be- 
fore at least twelve persons, who would state that they 
believed the accused, while vulgar purgation, consisted of 
superstitious trials by hot and cold water, by fire, by hot 
irons and such like barbarities that tried the temper and 
nerve of the accused one.* 

The purgation referred to by the King, in this instance, 
was rather that of the canonical purgation, until which, 
he advises the Tower and patience. 



Sec. 352. Verdict based on perjury. — 

"K. Hen. . . . not ever 

The justice and the truth o' the question carries 
The due o' the verdict with it: At what ease 

* 9 Bacon's Abr., 6. 

For discussion of the common law offense of simony and his- 
tory of the legislation in England, to prevent this offense, see 
V Reeve's History Eng. Law, p. 192. 

" King Henry VIII, Act V, Scene I. 
' Bouvier's Law Dictionary. 
^ 3 Bl. Comm. 341. 



THE LAW IN SHAKESPEARE. 379 

Might corrupt minds procure knaves as corrupt 

To swear against you? such things have been done."^ 

The King here warns his friend against the danger of a 
perjured witness or two being used against him, at his 
trial. Of course, if evidence which is not true should be 
offered on the trial of any issue, then "the justice and 
the truth o' the question," would not carry "the due o' the 
verdict with it," but wrong would triumph, instead of 
right and falsehood, instead of truth, prevail. The preva- 
lency of the crime of perjury, about the time at which the 
trial was to be had, is a sufficient excuse for the King's 
admonition, as to the ease with which "corrupt minds pro- 
cure knaves as corrupt to swear against you," for the 
severity of the offense, according to the statutes,^ and the 
punishment either of imprisonment, or by the pillory, 
did not seem to abate the crime, until the enactment of 
the 29 Elizabeth, c. 5, by which the severity of the punish- 
ment zi^s increased.* 

Sec. 353. Accusing one, face to face. — 

"Gran. ... I do beseech your lordships, 
That, in this case of justice, my accusers, 
Be what they will, may stand face to face, 
And freely urge against me."* 

The accused here, but asked what the law accorded him, 
had his trial been in a temporal court, for Magna Charta 
provided that "no freeman shall be taken or impris- 
oned, . . . except by legal judgment of his peers, 

^ King Henry VIII, Act V, Scene I. 

="7 Bacon's Abr., 424-438. 

"Coke, 3' Inst., 163-168; 4 Bl. Comm. 137-139. 

King Henry VIII tells Cranmer, in warning him against his 
approaching trial: "K. Hen. . . . Ween you of better luck, 
I mean of perjur'd witness, than your master, Whose minister 
you are, whiles here he liv'd Upon this naughty earth." (Act V, 
Scene I.) 

^King Henry VIII, Act V, Scene II. 



380 THE LAW IN SHAKESPEARE. 

or the law of the laiid."^ By the organic provisions of 
the United States Constitution, each person accused of 
crime is entitled to have the witnesses brought "face to 
face" before him,^ as Cranmer prayed, in this instance, 
and in denying him this right, he was clearly denied one 
of the rights' f an accused citizen, as recognized by Eng- 
lish law. 

Sec. 354. Accusing Counsellor. — 

"Suf. Nay, my lord, 

That cannot be: you are a counsellor, 

And, by that virtue, no man dare accuse you."^ 

The excuse for denying Cranmer the benefit of having 
the accusers against him, appear "face to face," is made 
that since he is a King's Counsellor, no man dare accuse 
him. The King's counsel were those barristers who were 
selected by him to be of counsel for the realm and because 
of their nearness to the king's person, the plea is urged 
that no one dare make accusations against one so em- 
ployed, without privilege so to do from the king. 

Sec. 355. Acting as both judge and juror. — 

"Cran. ... if your will pass, 

I shall both find your lordship judge and juror."* 

Cranmer objects to the trial being had by one occupy- 
ing the position of both judge and juror, for while it was 
the province of the jury to determine only issues of fact, 
and of the jury to pass upon issues of law, if both func- 

M Bl. Comm. 423; 2 Coke, Inst, 39. 

^The accused, by Constitution of the U. S. is entitled to be 
confronted with the witnesses against him. U. S. Con. Art. VI. 
'King Henry VIII, Act V, Scene II. 

In Othello, after lago's coarse speech, Desdemona asks Cassio: 
"How say you, Cassio: is he not a most profane and liberal 
counsellor?" (Act II, Scene I.) 

*King Henry VIII, Act V, Scene II. 



THE LAW IN SHAKESPEARE. 381 

tions are to be discharged by one acting in both capacities, 
he intimates that because of the prejudice of the Lord, he 
would lose his rights. 

Sec. 356. Crime of heresy. — 

"Gar. My lord, my lord, you are a sectary, 

That's the plain truth: your painted gloss discovers, 
To men that understand you, words and weakness."^ 

A sectary, or sectarian, in religion, is one who separates 
himself from an established church, and adheres to some 
sect, or following, at variance with the established religion. 
The offense, at common law, was known as heresy, which 
consisted not in the total denial of Christianity, but of 
some of its essential doctrines, publicly and obstinately 
avowed.^ 

Sec. 357. Appeal by king's ring. — 

"Cran. ... I have a little yet to say. Look there, 
my lords; 
By virtue of that ring, I take my cause 
Out of the gripes of cruel men, and give it 
To a most noble judge, the king, my master. 

Cham. This is the king's ring. 

Sur. 'Tis no counterfeit.^ 

This refers to the custom of regarding the holder or 
possessor of the king's private ring, as entitled to the pre- 

1 King Henry VIII, Act V, Scene II. 
' Blackstone's Comm. 

The accusation against Cranmer, reminds us of what Milton 
said: "I never knew that time in England, when men of truest 
religion were not counted sectaries." 

2 King Henry VIII, Act V, Scene II. 

The King tells Cranmer, in King Henry VIII: "K. Hen. . . . 
if entreaties will render you no remedy, this ring deliver them 
and your appeal to us there make before them." (Act V, 
Scene I.) 



382 THE LAW IN SHAKESPEARE. 

rogatives of the king's person and to be exempt from the 
punishment he would otherwise be accorded, were he not 
invested with this insignia of royalty. The custom ob- 
tained at this time, of offering the ring of the king, which 
was construed as a claim of the royal prerogative, by the 
king, of himself passing judgment upon the accused per- 
son and of denying to the court the right to proceed with 
a cause. Hence, Cranmer says he takes his cause out of 
their jurisdiction, by the ring. 



CHAPTER XXVI. 

'TROILUS AND CRESSIDA; 



Sec. 


358. 


Ravishment. 




359. 


Per se. 




360. 


Justice residing between right and wrong. 




361. 


Impressment for military service. 




362. 


Attestation. 




363. 


Damage and indemnity of war. 




364. 


Law's protection of marital relation. 




365. 


A "privileged man." 




366. 


Underwriting one. 




367. 


A kiss in fee farm. 




368. 


Execution of contract by parties "interchangeably." 




369. 


Right warring with right. 




370. 


Consanguinity. 




371. 


Rejoindures. 




372. 


Attestation by "sight and hearing." 


Sec. 


358. 


Ravishment. — 



"Prog. . . . The ravish'd Helen, Menelaus' queen, 
With wanton Paris sleeps; And that's the quarrel."^ 

"Ravished," in criminal pleading, is a technical word 
essential, in an indictment for rape.^ 

No other word will generally answer and the defendant 
is usually charged with having "feloniously ravished," 
the prosecutrix, or woman mentioned in the indictment.^ 

The prologue here recognizes the condonement of the 
ravishment, by Helen, for it is mentioned that she "with 
wanton Paris sleeps," but the fact of the original rape or 
ravishment, is mentioned as the cause of the quarrel. 



^ Troilus and Cressida, Act I, Scene I. 
* 5 Bacon's Abr., p. 48, et seg. 

'The word implies that the act was forcible and against the 
will. 3 Chitty's Cr. Law, 812. 



(383) 



384 THE LAW IN SHAKESPEARE. 

Sec. 359. Per se. — 

"Alex. They say he is a very man, per se. 
And stands alone."^ 

''Per se/' when used in the law, means by itself, or him- 
self. A man's act is held to be negligence, per se, or 
when one appears as Counsel in his own cause, he is said 
to appear, per se, or by himself. 

The Poet here makes Alexander refer to Troilus as a 
man, per se, meaning that he is a man, by himself, or in 
himself. The expression is one familiar to lawyers and 
courts and is used in this generic way, by law writers 
and courts.^ 

Sec. 360. Justice residing between right and wrong. — 

"Ulyss. . . . Take but degree away, untune that 
string, 
And, hark, what discord follows: each string meets 
In mere oppugnancy : The bounded waters 
Should lift their bosoms higher than the shores. 
And make a sop of all this solid globe: 
Strength should be lord of imbecility, 
And the rude son should strike his father dead : 
Force should be right : or, rather right and wrong 
(Between whose endless jar justice resides,) 
Should loose their names, and so should justice too"^ 

The language of Ulysses is that between contending fac- 
tions or by way of compromise justice is more nearly ap- 
proached. In other words, in the practical administra- 
tion of justice, it is found that the one who claims to 
be right is not always so, to the extent claimed, and the 
one who is claimed to have violated this right, or to have 
perpetrated the wrong, is not always as wrong as it is 
claimed, but between the two the right, or the real jus- 
tice of the contention, resides. 



^ Troilus and Cressida, Act I, Scene II. 

23 Bl. Comm. 181. 

* Troilus and Cressida, Act I, Scene III. 



THE LAW IN SHAKESPEARE. 385 

This reasoning urges respect for the law, through which 
justice is enforced, and intimates that without such re- 
spect, might or force alone can gain control. In the prac- 
tical administration of justice, the expressions are most 
correct, for in the permission of the law that each one 
shall enjoy his own, it is found not always to be in the 
proportion that it is urged such right should be enjoyed, 
but rather that "justice resides," between the "endless 
jar" of right and wrong.^ 

Sec. 361. Impressment for military service. — 

"Achil. Your last service was sufferance, 'twas not volun- 
tary; no man is beaten voluntary; Ajax was here the 
voluntary, and you as under an impress."^ 

The ships of the British Navy were formerly manned by 
impressment, and the practice had not only the sanction 
of custom, but the force of law and many acts of parlia- 
ment were passed, from the reigns of Philip and Mary 
to that of George III, to regulate the system of impress- 
ment, in England.^ The practice was to seize, by force, 
such seamen, rivermen and other citizens as the circum- 
stances demanded for service in the navy. An armed 

^Coke. 2' Inst., 56; Toullier, Droit, Civ. Fr. tit. prel. n. 5. 

^ Troilus and Cressida, Act II, Scene I. 

'V Reeve's History English Law, 140, et sub; Bacon, Abr. 

In Antony and Cleopatra, Enobarbus tells Cleopatra, compar- 
ing her sailors with those of C^sar: "Your ships are not well 
manned; Your mariners are muleteers, reapers, people ingross'd 
by swift impress." (Act III, Scene VII.) 
And in Hamlet, Marcellus asks Horatio: 
"Mar. Good now, sit down, and tell me, he that knows. 
Why this same strict and most observant watch 
So nightly toils the subject of the land; 
And why such daily cast of brazen cannon, 
And foreign mart for implements of war; 
Why such impress of shipwrights, whose sore task 
Does not divide the Sunday from the week." 

(Act I, Scene I.) 



386 THE LAW IN SHAKESPEARE. 

body of sailors, preceded by officers of the law usually 
went to the seaport towns and laid violent hands on all 
eligible men and conveyed them, by force to the ships 
of war. Under the law all men of seafaring habits be- 
tween 18 and 55 years were liable to be seized, subject to 
certain exemptions and what was known as the "Press- 
gang" were authorized to board any merchant-vessel, in 
any port in the world and seize British subjects, a right 
frequently abused in different parts of the world, by Eng- 
lish seamen. 

Of course those men seized and forced to serve were 
not usually as good seamen as the volunteers, who went 
into the service willingly, and this is what Achilles means, 
in the lines above quoted. 

Sec. 362. Attestation. — 

^^ Paris. . . . But I attest the gods, your full consent 

In King Richard II, the King, referring to the impi;essment 
of Bolingbroke, said: 

". . . For every man that Bolingbroke hath press'd 
To lift shrewd steel against our golden crown, 
God for his Richard hath in heavenly pay 
A glorious angel." (Act III, Scene II.) 

In King Lear, Lear is made to say, to Edgar: "Nature's above 
art in that respect. — There's your press-money." (Act IV, 
Scene VI.) 

And in same play, (Act V, Scene III) Edmund speaks of 
turning "our impress'd lances in our eyes." 

Of the wonderful power of love, the maid discourses, in A 
Lover's Complaint: 

"0 most potential love: vow, bond, nor space. 
In thee hath neither sting, know, nor confine. 
For thou art all, and all things else are thine. 
When thou impressest, what are precepts worth 
Of stale example? When thovi wilt enflame. 
How boldly those impediments stand forth 
Of wealth, of filial fear, law, kindred, fame: 
Love's arms are peace, 'gainst rule, 'gainst sense, 'gainst 
shame." (264, 271.) 



THE LAW IN SHAKESPEARE. 387 

Gave wings to my propension and cut off 
All fears attending on so dire a project."^ 

Attest is here used in the sense of bearing witness^ In 
law, attestation is the verification, by a witness or wit- 
nesses, of the truth of a given state of facts, which is in 
issue, in a given case.^ In the law of conveyancing, at- 
testation is the verification of the execution of the deed or 
will, by the witnesses who subscribe and "attest" the 
same.* 

Sec. 363. Damage and indemnity of war. — 

"Pri. . . , Thus one again says Nestor, from the 
Greeks ; 

Deliver Helen and all damage else — 
As honour, loss of time, travel, expense, 
Wounds, friends, and what else dear that is consumed 
In hot digestion of this cormorant war, — 
Shall be struck o§."^ 

The King here presents the Greek's offer to end the 
war, by payment of all damage, all expenses and delivery 
of Helen, the real cause of the Greek and Trojan war. 

Damage, in law, is the indemnity or compensation paid 
by one who has sustained an injury, either in his person, 
property, or relative rights, through the wrongful act of 
another.' The wrongful act of Paris, in ravishing and 
abducting the queen of the Greeks, is the act for which 
damages is claimed and expenses and other indemnity. 
If damages are not paid and the other redress asked not 
offered, the war is to continue, but otherwise it is to be 
stopped. This is the proposition or peace offering and 
the conditions upon which alone peace can be obtained. 

^Troilus and Cressida, Act II, Scene II. 

^ Rolfe's Troilus and Cressida, p. 219, notes. 

^ Bouvier's Law Dictionary. 

*Tiedeman's R. P. (3d ed.). 

' Troilus and Cressida, Act II, Scene II. 

n Kent's Comm. (10th ed.) 630; Bouvier's Law Dictionary. 



388 THE LAW IN SHAKESPEARE. 

Sec. 364. Laws protection of marital relation. — 

"Hect. . . . Nature ci'aves, 

All dues be render'd to their owners; Now 
What nearer debt in all humanity, 
Than wife is to the husband? if this law 
Of nature be corrupted, through affection ; 
And that great minds, of partial indulgence 
To their benumbed wills, resist the same; 
There is a law, in each well-order 'd nation. 
To curb those raging appetites that are 
Most disobedient and refractory. 
If Helen, then, be wife to Sparta's king, — 
As it is known she is, — ^these moral laws 
Of nature, and of nations, speak aloud 
To have her back return 'd: Thus to persist 
In doing wrong, extenuates not wrong. 
But makes it much more heavy. "^ 

Hector places in this verse, the rights of the marital 
relation, upon natural laws. The thought is that the 
rights of the husband, which attach by virtue of the rela- 
tion of the marital contract, are founded in moral and 
natural laws and it is a fraud upon him to trample these 
just and natural rights under foot. Indeed, as the lan- 
guage indicates, the marital relation is the basis of the 
family or domestic obligation, and it is necessary for the 
good of society that such legal relation is protected. Hec- 
tor stands for the clean and pure and wholesome things 
in life and only asks for the benefit of the law of the 
domestic relation,' for Menelaus. 

The husband is legally and morally, entitled to the 
society and affection of his wife and can sue for and 
recover damages for the interference with this relation.^ 

^Troilus and Cressida, Act II, Scene II. 
^Reeve's Dom. Rel. 
= Bishop's Mar. & Dlv. 

Hector's conclusion is that what the law does, as between indi- 
viduals, justice ought to do, between nations, as well. Rolfe's 
Troilus and Cressida, p. 222, notes. 



THE LAW IN SHAKESPEARE. 389 

But Hector places the right upon a broader and more solid 
foundation, that of the good of society^ as a whole, hence 
he concludes, "these moral laws of nature, and of nations, 
speak aloud," in favor of the right of the husband of the 
ravish'd queen. 

Sec. 365. A privileged man. — 

''Achil. He is a privileged man. — Proceed, Thersites."* 

"A privileged man" is one who has a right to commit 
some act, or do some thing, but for which privilege he 
would not have the right to do, as one who is recognized to 
have the right to speak slanderous words, or to write in a 
libelous manner of another, which he enjoys by reason of 
being a "privileged man."^ The expression is purely a 
legal expression and is frequently used, in legal proceed- 
ings, eepecially in damage suits, for libel or slander, where 
the defense is that of a special privilege.' 

Sec. 366. Underwriting one. — 

''A gam. . . . Disguise the holy strength of their 
command. 
And underwrite in a deserving kind 
His humorous predominance."* 

To underwrite is to insure or guarantee a certain re- 
sult, as where one underwrites or agrees that he will make 
good a certain loss in a certain event, as an insurer.^ 
The thought is that his "humorous predominance" shall 
be underwritten or guaranteed. 

^ Troilus and Creesida, Act II, Scene III. 
^ Heard, Libel & Slan., See. 89. 
^Ante idem. 90, 103, 110. 

Diomedes tells Troilus in Troilus and Cressida: "Dio. O, be 
not mov'd, prince Troilus: Let me be privileg'd by my place, and 
message, To be a speaker free." (Act IV, Scene IV.) 

* Troilus and Cressida, Act II, Scene III. 
^ Bouvier's Law Dictionary. 



390 THE LAW IN SHAKESPEARE. 

Sec. 367. A kiss in fee-farm. — 

"Pan. . . . Alas, the day, how loath you are to 
oflPend day-light: and t'were dark, you'd close sooner 
So, so; rub on, and kiss the mistress. How now? 
a kiss in fee-farm? build there, carpenter, the air is 
sweet."^ 

Pandarus, on seeing the lovers kiss, asks if it is to be a 
kiss "in fee-farm/' intending to enquire if there is to be 
no ''fealty" or other obligations, on the part of the one 
kissed, meaning to place Cressida, as the tenant, render- 
ing her rent to the lord paramount. "A fee-farm tenant" 
was one who held of another in fee, or in perpetuity at 
an annual rental, generally in kind, rendering only fealty 
and no other services being required, unless according to 
the enfoeffment, such were required.- Pandarus advises the 
full. enjoyment of the relation the lovers occupy and with- 
out let or hindrance proposes that this relation shall con- 
tinue for life, or forever, by the token of the kiss. 

Sec. 368. Execution of contract by parties "interchange- 
ably".— 

"Pan. Words pay no debts, give her deeds: but she'll 
bereave you of the deeds too, if she call your activity 
in question. What billing again? Here's — In wit- 
ness whereof the parties interchangeably — Come in, 
come in; I'll go get a fire."^ 

Pandarus here suggests the pre-contract of marriage 
which will serve Cressida for a marriage contract, in law, 
and actually closes the form of the contract with the 
formal words, used in law, at the end of such contracts, 
i. e., "7n Witness whereof, the parties inter cha7igeably," 
of tlie scrivenor, in the preparation of such contracts. 

One making a pre-contract of marriage, was held in- 
capable of afterwards entering into a similar contract 

'Troilus and Cressida, Act III, Scene II. 
'2 Bl. Comm. 43; Cowel, Spellman, Gloss. 
'Troilus and Cressfda, Act III, Scene II. 



THE LAW IN SHAKESPEARE. 391 

with another ; provided it was made per verba de presenti, 
it was held to be, in fact, a marriage, with all the legal 
requirements.^ 

The closing part of such a contract, in recognition of 
the mutual binding effect of the covenants, as those exist- 
ing interchangeably, or inter partes, simply recognizes 
what the law implies, of course, that the terms of the con- 
tract apply to more than one, or to both parties to the 
agreement alike, but the technical sense of the expression, 
by its long use and currency is so understood that it is 
rarely dispensed with, in agreements between two or 
more persons.^ 

Sec. 369. Right warring with right. — 

"Tro. ... virtuous fight. 

When right with right wars, who shall be most 
right ?"3 

In the contests for the enforcement of right, right is 
generally pitted against wrong, hence the anomaly of 
right contending with right, ^^uggests the difficulty of 
making correct decision. 

Of course if both parties were right, the fight would 
be a virtuous one, for virtue would dwell on both sides, 
hence the conclusion that it would be an open enquiry 
who would be "most right." 

Sec. 370. Consanguinity. — 

''Cres. ... I will not, uncle: I have forgot my 
father ; 
I know no touch of consanguinity: 
No kin, no love, no blood, no soul so near me, 
As the sweet Troilus."* 



*6 Bacon's Abr., 454, et seq. 
= 5 Coke, 182; Lawson Contracts (3' ed.), 405. 
^ Troilus and Cressida, Act III, Scene II. 
*Troilus and Cressida, Act IV, Scene II. 



392 THE LAW IN SHAKESPEARE. 

Cressida here denies the obligations of the relation 
among all the different persons descending from the same 
common stock or ancestor. Consanguinity is either col- 
lateral or lineal, and it is the latter kind, of which the 
Poet speaks, in this verse, for Cressida has descended from 
her father and claims that she has forgotten him. She 
declares that she knows "no kin, no love, no blood" . . . 
so near as the "sweet Troilus." 

Sec. 371. Rejoinders. — 

"Tro. . . . injury of chance 

Puts back leave-taking, justles roughly by 
All time of pause, rudely beguiles our lips 
Of all rejoindure, forcibly prevents 
Our lock'd embrasures, strangles our dear vows 
Even in the birth of our own laboring breath."^ 

In pleading, at common law, the defendant had the 
right of rejoinder or answer to the plaintiff's replication, 
or reply to the original answer of the defendant, in a 
civil cause. A rejoindure, in pleading thus contemplated 
a former answer and a former reply and then a rejoin- 
dure.- The injury arising from the immediate separation 
Troilus treats as a cause preventing further rejoindure, as 
well as the cause of dispensing with further "embrasures," 
even in the birth of their "laboring breath." 

Lineal consanguinity is that which recognizes the descent or 
ascent in a direct line, as daughter and parent; collateral con- 
sanguinity is that which refers to persons descending from the 
same common ancestor, but not from each other. 2 Bl. Comm. 
202. 

* Troilus and Cressida, Act IV, Scene IV. 
= Coke, Litt. 304; Archbold, Civil PI. 278. 

This plea by way of rejoindure, in most of the United States 
is now prevented and the answer of the defendant is the only 
plea he has. 



THE LAW IN SHAKESPEARE. 393 

Sec. 372. Attestation by sight and hearing. — 

"Tro. . . . Sith yet there is a credence in my heart, 
An esperance so obstinately strong, 
That doth invert the attest of eyes and ears."^ 

An attesting witness to an instrument, at common law, 
was one, who, at the request of the parties executing it, 
signed his name, in evidence of his having witnessed the 
execution of the contract.^ 

The attesting witness was not required to witness the 
parties execute the instrument, but it was only required 
that he sign in their presence, at their request and that 
they acknowledge that they had executed it.^ Of course 
if he actually saw and heard them say they signed it, then 
he would attest it by both "sight and hearing"; then he 
would have the best primary evidence of the fact attested, 
or proved, and Troilus here, wishes that his eyes and ears 
had deceived him, or that this primary evidence should 
prove wrong. 

^Troilus and Cressida, Act V, Scene II. 

*3 Campb. 232. 

^2 Greenl. Evid., Sec. 678. 



CHAPTER XXVII. 

"TIMON OF ATHENS." 

Sec. 373. Pawn. 

374. Death penalty for homicide. 

375. Joint and corporate action. 

376. Hereditary taints. 

377. Pity the virtue of Law. 

378. Plunging into Law. 

379. Defending manslaughter. 

380. Killing in self-defense. 

381. Felon in irons. 

382. "Law is strict." 

383. A cynic's view of Law — Thievery justified. 

384. Bawds not competent witnesses. 

385. Pleading false titles. 

386. The scope of Justice. 

387. Answering public Laws. 

Sec. 373. Pawn.— 

"Old. Ath. Most noble lord, 

Pawn me to this your honour, she is his."^ 

A pledge or pawn is a bailment of personal property as 
security for some debt or engagement.- The Old Athenian 
asks Timon of Athens to pledge or pawn his honour, 
instead of his personal property and he will take this 
as security for the performance of the engagement re- 
ferred to. In other words, he will consent to the alliance, 
if the honour of Timon is given him, as security that the 
husband of his daughter shall be endowed equally with 
his daughter. 



'Timon of Athens, Act I, Scene I. 

* Story, Bailments, Sec. 286; Lawson, on Bailments, sec. 1. 

Alcibiades thus pleads for the life of his client in Timon of 
Athens: "Alcib. . . . And, for I know your reverend ages 
love, security, I'll pawn my victories, all my honour to you, upon 
his good returns." (Act IH, Scene V.) 

(394) 



THE LAW IN SHAKESPEARE. 395 

Sec. 374. Death penalty for homicide. — 

"Tim. Whither art going? 

Apem. To knock out an honest Athenian's brains. 

Tim-. That's a deed thou'lt die for. 

Apem. Right, if doing nothing be death by the law."^ 

Timon here advises Apemantus that under the Athenian 
law, to knock out the brains of an Athenian, will subject 
him to the death penalty, for homicide was punishable 
\>Y death by the law of Athens.- But the philosopher 
reminds him that his threat was to knock out the brains 
of an "honest Athenian" and intimates that since he 
could not find such a one, his offense would be doing 
nothing. 

Sec. 375. Joint and corporate action. — 

''Flav. . . . They answer, in a joint and corporate 
voice. 
That now they are at fall, want treasure, cannot 
Do what they would. "^ 

"A joint and corporate voice," would be as one body, 
or with one voice, since a corporate entity, in law, is an 

Aufidius, in condemning Coriolanus, for sparing Rome, said: 
"Auf. I rais'd him and I pawn'd mine honour for his truth." 
(Act V, Scene VI.) 

Speaking of the lax morals of Antony, Csesar said to Lepidus, 
in Antony and Cleopatra: 
"Caes. . . . 'tis to be chid 

As we rate boys; who, being mature in knowledge, 
Pawn their experience to their present pleasure. 
And so rebel to judgment." (Act I, Scene IV.) 

Imogen, in her talk with lachimo, in Cymbeline, agrees, if he 
leaves his alleged box of jewels in her care, to "pawn" her 
"honour for their safety." (Act I, Scene VII.) 

In King Lear, Kent says to the King: "My life, I never held, 
but as a pawn. To wage against thine enemies." (Act I, Scene I.) 

^ Timon of Athens, Act I, Scene I. 
= Hugo's Histoire du Droit, 161. 
'Timon of Athens, Act II, Scene II. 



396 THE LAW IN SHAKESPEARE. 

association of persons united into one legal person, or 
corporation.^ Flavins tells his master that all the friends 
he had applied to had the same excuse, or with one "joint 
and corporate voice" gave him the same answer. 

Sec. 376, Hereditary taints. — 

"Tim.. . . . These old fellows 

Have their ingratitude in them hereditary: 
Their blood is cak'd, 'tis cold, it seldom flows. "^ 

As in the description of the character of Richard III 
and other plays, the Poet here indicates that he believed 
in hereditary transmission of peculiar types or traits. 
Any kind of property which is the subject of inheritance 
is called hereditary property or hereditament?^ Of course 
ingratitude is not a species of property that can be so trans- 
mitted, but like other hereditary taints or peculiarities 
might be said to appear in successive generations. 

^ 2 Bacon's Abr., 436. 

- Timon of Athens, Act II, Scene II. 

3 2 Bl. Comm. 17; Coke, Litt, 5b. 

Timon thus curses Athens and her institutions: "The Senator 
shall bear contempt hereditary, the beggar native honour." (Act 
IV, Scene III.) 

Timon of Athens tells Apementus: "Tim. If thou wilt curse, 
thy father, that poor rag. Must be thy subject; who, in spite, 
put stuff to some she-beggar, and compounded thee, poor rogue 
hereditary." (Act IV, Scene III.) 

Menenius tells Brutus, in Coriolanus: "Men. . . . Yet you 
must be saying Marcius is proud; who, in a cheap estimation, is 
worth all your predecessors, since Deucalion; though, perad- 
venture, some of the best of them were hereditary hangmen." 
(Act II, Scene I.) 

On Caesar's complaint of Antony's faults, Lepidus is made to 

say, in Antony and Cleopatra: 

"Lev. His faults, in him, seem as the spots of heaven, 
More fiery by night's blackness; hereditary, 
Rather than purchas'd; what he cannot change. 
Than what he chooses." (Act I, Scene IV.) 



THE LAW IN SHAKESPEARE. 397 

Sec. 377. Pity the virtue of law. — 

"Alcib. I am an humble suitor to your virtues; 
For pity is the virtue of the law, 
And none but tyrants use it cruelly."^ 

Pity or mercy is said to be the saving grace of all sys- 
tems of criminal jurisprudence, and the partial or total 
remission of punishment, before sentence,^ seems to call 
forth the universal approval of Shakespeare, for with his 
broad vi6w of human life and his charity, it is but nat- 
ural that he would always "temper justice with mercy." 
Such is peculiarly the Poet's sphere, for the emotional 
side of life could but appeal to the imagination of one 
so thoroughly attuned to the weaknesses and foibles of 
his kind and possessed himself with the "divine gift of 
pity," he would naturally want to temper harsh laws 
with this virtue. 

Sec. 378. Plunging into law. — 

"Alcib. . . . It pleases time and fortune, to lie heavy, 
Upon a friend of mine, who, in hot blood, 
Hath stepp'd into the law% which is past depth 
To those that, without heed, do plunge into it."^ 

The old General in this verse, is made to state a fact 
well known to lawyers, that when one rushes into law, 
with a cause, he has frequently a long while to relent at 
his leisure. The moral suggested by the Poet is that one 
should be quite sure of one's position before rushing into 
law, for otherwise he may discover, unless he heed, that 
he is "past depth" in the meshes of the law. 

^ Timon of Athens, Act III, Scene V. 
*1 Kent's Comm. 265. 

The false Tamora, is made to plead for mercy. In Titus Andro- 
nicus, as follows: 

'Tarn. Wilt thou draw near the nature of the gods? 
Draw near them, then, in being merciful; 
Sweet mercy is nobility's true badge." (Act I, Scene II.) 
'Timon of Athens, Act III, Scene V. 



398 THE LAW IN SHAKESPEARE. 

Sec. 379. — Defending manslaughter. — 

"1 Sell. You undergo too strict a paradox, 
Striving to make an ugly deed look fair: 
Your words have took such pains, as if they labour'd 
To bring manslaughter into form, set quarrelling 
Upon the head of valour; which, indeed. 
Is valour misbegot, and came into the world 
When sects and factions were newly born."^ 

The Senator is made to suggest to Alcibiades that he 
actually puts a good, seemly outside upon the crime of 
manslaughter, to assist his client to avoid the penalty for 
his rash act in taking the life of one of his fellows. Man- 
slaughter is the unlaw^ful killing of a human being, with- 
out malice, express or implied.- As Alcibiades and the 
Senator are careful not to call the killing, in this instance 
by the name of murder or homicide, but to discriminate, 
the element of willfulness or malice being wanting, the 
Poet of course knew and understood the different elements 
that go to constitute the various degrees of this ojffense. 

Sec. 380. Killing in self-defense. — 

"Alcib. ... To kill, I grant, in sin's extremest gust, 
But, in defense, by mercy, 'tis most just."® 

The right of self-defense is said to be based upon the 
first law of nature and so the courts and all laws recognize 
that to take human life in the defense of one's own per- 
son, is not murder. Alcibiades urged this defense for 
his client, in an appropriate and proper plea, for what 
criminal lawyer could select more appropriate words in 
w^hich to couch his plea than by admitting the crime of 
murder, he drew the just distinction between the willful 
killing and the defense of one's person, in the Poet's 
words? 



* Timon of Athens, Act III, Sceae V. 
== 4 Bl. Comm. 190. 
'Timon of Athens, Act III, Scene V. 
*1 Bl. Comm. 180; 2 RoUe, Abr., 547. 



THE LAW IN SHAKESPEARE. 399 

Sec. 381. Felon in irons. — 

"Alcib. ... if there be such valor in the bearing, 
what make we 
Abroad? why then, women are more valiant, 
That stay at home, if bearing carry it; 
And th' ass, more captain than the lion; the felon, 
Loaded with irons, wiser than the judge. 
If wisdom be in suffering."^ 

A felon is one who has been convicted and sentenced 
for a felony, or for the higher degrees of crime. ^ Until 
sentence, the party accused would not necessarily be kept 
in irons, so the correct word is used to indicate one, tried 
and convicted and properly placed in irons. If "wisdom 
be in suffering," the pleader urges that the "felon, loaded 
with irons" could be considered "wiser than the judge," 
for of course his suffering is the more severe. 

Sec. 382. * ' Law is strict. ' *— 

"Alcib. . . . If by his crime, he owes the law his life, 
Why, let the war receive't, in valiant gore; 
For law is strict, and war is nothing more."^ 

Alcibiades urges that his client may be sent to war to 
fight for his country, instead of being made to suffer the 
penalty of the law and put to death, where he can do him- 
self or his country no service. 

The plea is that frequently urged for felons, by their 
legal representatives and by custom the plea was fre- 
quently granted.* 

The statement that the "law is strict," accords with the 
Poet's general idea of law, for he recognized the law as 
an iron rule of conduct that must not be removed for the 
benefit of individuals, but enforced for the benefit of the 



* Timon of Athens, Act III, Scene V. 
'Coke, Litt. 391. 

^ Timon of Athens, Act III, Scene V. 
*Benet, Mil. Law; Selden, Tit. Hon. 



400 THE LAW IN SHAKESPEARE. 

public at large. In continuously having his characters 
seek a mollifying construction of the law, he sought to 
assist it, in places where its strictness and universality 
needed softening or tempering. 

Sec. 383. A cynics' view of law — Thievery justified. 

"Timon. . . . I'll example you with thievery: 
The sun's a thief, and with his great attraction 
Robs the vast sea; the moon's an arrant thief, 
And her pale fire she snatches from the sun ; 
The sea's a thief, whose liquid surge resolves 
The moon into salt tears ; the earth's a thief. 
That feeds and breeds by a composture stolen 
From general excrement; each thing's a thief. 
The laws, your curb and whip, in their rough power 
Have uncheck'd theft."^ 

In attempting to induce the bandits to further acts of 
thievery and robbery, by instancing the natural sources 
of power and growth — as though it was a natural law to 
steal — the Poet presents a misanthrop's view of life as an 
inducement whereby he can cause misery to his fellows. 
Of course the very opposite of this view is the correct 
principle to act upon, for if thievery and lawlessness will 
cause misery — which is Timon's object — then an adher- 
ence to the principle which compels a due regard to the 
rights of others, will, by a parity of reasoning, bring 
happiness. 

In calling the bandits' attention to the fact that the 
laws not only curbed, controlled and prevented their acts 
of robbery and pillage, but likewise whipped them, or 
punished them for their infractions, the Poet grasped and 
expressed the dual objects of criminal laws, not only to 
command the right, but to also punish the wrong, with- 
out which they would, of course, be ineffectual, as laws.^ 



* Timon of Athens, Act IV, Scene III. 

*0f this passage. Doctor Rolfe observes, in his Timon of 
Athens (notes, p. 212): "This seems to be a cynical reference 



THE LAW IN SHAKESPEARE. 401 

Sec. 384. Bawds not competent witnesses. — 

''Tim. Hold up, jou sluts, 

Your aprons mountant: You are not oathable, — 
Although, I know, you'll swear, terribly swear, 
Into strong shudders, and to heavenly agues. 
The immortal gods that hear you, — spare your 
oaths."^ 

Timon tells Phrynia and Timandra, that because of 
their infamous lives, they are not competent witnesses; 
that they are not oathable or legally competent to testify. 
Infamous persons were not competent witnesses, at com- 
mon law and all persons who did not regard the binding 
effect of an oath, such as persons w^ho were convicted of 
dissolute, immoral lives, could not take an oath, in court. ^ 
In most countries, a general reputation for lack of chastity, 
in male or female, affects the competency of the w^itness 
for credibility, but not otherwise. However, Timon tells 
these infamous w^omen what the law was correctly, for 
their lives were so notorious that their oaths would not 
have been received in a court of justice. 



to the arbitrary exercise of legal authority in taxation and sim- 
ilar exactions; the laws, though they restrain and punish petty 
thieves, like you, nevertheless, by the might that makes right, 
plunder without restraint." Then he adds: "I have met with no 
comment on the passage, and can suggest no other explanation of 
it, but I have little doubt that this is the meaning," and of this, 
it seems puerile to add, that I have reached the same conclusion. 

^ Timon of Athens, Act IV, Scene III. 

'1 Greenleaf Evid., 373, 374; 3 Bacon's Abr., 486, 507. 

At common law, the objections to a witness were such as were 
absolute or such as applied only between particular persons. Of 
the former kinds were "an infamous person, as an usurer, or one 
condemned by a public judgment; a perjured person; a woman 
who was, or had been a common prostitute and all persons who 
were stigmatized by the secular laws." (IV Reeve's History 
Eng. Law, p. 80.) 



402 THE LAW IN SHAKESPEARE. 

Sec. 385. Pleading false titles. — 

"Tim. . . . Crack the lawyers voice, 

That he may never more false title plead, 
Nor sound his quillets shrilly."^ 

This verse is one frequently quoted by lawyers. Plead- 
ing for one's title to property is one of the ordinary func- 
tions of the lawyer. The Poet here uses satire to show 
that the lawyer is accustomed to plead for false titles as 
well for those which are true. He asks that his voice 
may be cracked, so that he may be compelled to stop this 
practice and of sounding his "quillets shrilly." 

Of course, professionally, if one has a title at all, whether 
it is the best title to property or not, he is entitled to have 
his right thereto passed on by a competent court, for until 
this is done, it cannot be determined what his rights in 
the premises were. In other words, every asserted right 
is entitled to a representative and the fact that a lawyer 
speaks in a losing cause, is not always evidence that his 
cause was wrong. But, of course, Timon was soured, in 
a measure on the world, and that is why he urged such 
satire against the lawyer. 

Sec. 386. The scope of Justice. — 

^'Alcib. . . . Till now you have gone on and fill'd 
the time 
With all licentious measure, making your wills 
The scope of justice ; till now myself and such 
As slept within the shadow of your power 
Have wander'd with our travers'd arms and breath'd 
Our sufferance vainly."- 

Justice has been defined as "the constant and perpetual 
will to render unto every man his own."^ This generous 
and altruistic idea of the virtue is an essential for its 



* Timon of Athens, Act IV, Scene III. 
"Timon of Athens, Act V, Scene IV. 
'Touillier, Droit, Civ. Fr. tit. prel. n. 5. 



THE LAW IN SHAKESPEARE. 403 

enjoyment, for otherwise, expediency too often will over- 
come justice and prevent its attainment. While true that 
the individual or general interest of mankind largely 
determines justice, in a given case, and the prevalent sense 
of justice is encumbered with the hypothesis of innate 
notions of the virtue generally, it is not true, in civilized 
states that the expedient or selfish always controls or shapes 
the ideas of justice which obtain, but the virtue is generally 
cherished from the innate love of our fellowmen, and in- 
cidentally of his rights, without which our own are liable 
to suffer, as our own ideals of justice propagate a disre- 
gard for this virtue. The contrast between the just and 
the expedient is apparent, when it exists, and the natural 
love of mankind for his fellows, coupled with the primal 
idea of self-preservation, and the necessity of recognizing 
justice, as the groundwork of our existence, makes the 
recognition of justice such a moral necessity that no society 
can do other than exalt the proper ideals of justice and 
equality, which hopes to prosper. Hence, it is that Alci- 
biades, in his address to the Senators, pointed out a peril 
at the very basis of the Government, when he called their 
attention to the fact that their idea of justice had been con- 
fined into altogether too narrow a limit and that the rights 
of others were subverted to whatever they choose to recog- 
nize, by their wills. In these observations, the Poet was 
striking at the foundation of society and expressed the 
philosophy which underlies civilization. 

Sec. 387. Answering public laws. — 

"Alcib. . . . not a man 

Shall pass his quarter, or offend the stream 
Of regular justice, in your city's bounds. 
But shall be remedied, to your public laws, 
At heaviest answer."^ 



*Timon of Athens, Act V, Scene V. 



404 THE LAW IN SHAKESPEARE. 

Alcibiades here promises that the criminal or public 
laws, for the redress of public wrongs within the munici- 
pality of Athens, shall be rigorously enforced. That the 
"stream of regular justice," shall not be interfered with, 
but that it shall be permitted to flow as formerly and with- 
out let or hindrance so far as he is concerned. 



CHAPTER XXVIII. 







"CORIOLANUS." 


Sec. 


388. 


Piercing statutes. 




389. 


Manacles. 




390. 


Alias. 




391. 


Complaint. 




392. 


Bencher. 




393. 


Pleaders. 




394. 


Tarpeian rock. 




395. 


Resisting Law. 




396. 


Process. 




397. 


Death by the Wheel. 




398. 


Trial by Comitia. 


Sec. 


388. 


Piercinff statutes. — 



"1 Cit. . . , repeal daily and wholesome acts estab- 
lished against the rich; and provide more piercing 
statutes daily, to chain up and restrain the poor. K 
the wars eat us not up, they will ; and there's all the 
love they bear us."^ 

A statute is generally defined as a law enacted by the 
legislative power, or a written expression of the legislative 
will, in the form necessary to make it the law of the state 
or country where it is to obtain. ^ The Poet many times 
speaks of ''biting statutes" and "piercing statutes/' show- 
ing that he had the lawyers' regard for such strict legis- 
lative provisions as made it hard upon the individual citi- 
zen, when enforced, with the Poet's sympathy for the in- 
dividual in any hardship that he suffered, even though it 
resulted from the enforcement of the law. Speaking of 
the repeal of such statutes as were enacted for the benefit 
of the poor, the idea is that such acts were rendered nuga- 
tory by inconsistent provisions, by which an implied re- 



^Coriolanus, Act I, Scene I. 

* Bacon, Ahr., Statutes; Coke, 2' Inst., 200; Bouvier's Law Diet. 

(405) 



406 THE LAW IN SHAKESPEARE. 

peal of a previous statute may be effected.^ The legal 
observations in these lines are made in strict accord with 
the struggle then going on, between the plebeians and 
the patricians, for supremacy and show an accurate knowl- 
edge, not only of the legal requirements of legislative 
enactments, but also of the historical facts existing at this 
period of the world's history. 

Sec. 389. Manacles. — 

"Com. If 'gainst yourself you be incens'd, we'll put you 
(Like one that means his proper harm), in man- 
acles."^ 

"Manacles" are hand-cuffs, or other fastenings for the 
hands or limbs, to shackle, confine or restrain the use of 
the limbs or natural powers, so that criminal or insane per- 
sons cannot escape or inflict bodily injury upon others.' 

»16 Pet. 342. 

The Poet refers to "Biting Statutes" in 2' Henry VI. (Act 
IV, Scene VII.) 

*Coriolanus. Act I, Scene IX. 
** Webster's Dictionary. 

Yolumnia tells Coriolanus, in her appeal for clemency, and the 
safety of Rome: "Fo?. . . . for either thou Must, as a for- 
eign recreant, be led, with manacles, through our streets, or else 
triumphantly, tread upon thy country's ruin." (Act V, Scene 
III.) 

Cleopatra thus consoles herself with her approaching death: 
"C.leo. . . . And it ts great 

To do that thing that ends all other deeds; 

Which shackles accidents, and bolts up change; 

Which sleeps, and never palates more the dung, 

The beggar's nurse and Caesar's." (Act V, Scene II.) 

Postbumus puts the ring on Imogen's finger, in Cymbeline, and 
tells her: "For my sake, wear this; it is a manacle of love; 
rn place it upon this fairest prisoner." (Act V, Scene II.) 

The Messenger satd, in Cymbeline: "Knock off his manacles; 
bring your prisoner to the king." (Act V, Scene IV.) 



THE LAW IN SHAKESPEARE; 407 

Sec. 390. Alias.— 

"Men. Why, then you should discover a brace of un- 
meriting, proud, violent, testy magistrates (alias 
fools,) as any in Rome."^ 

Alias is a Latin term, meaning "otherwise," when used 
in the sense in which it is here employed. It literally 
means, another, as it is generally used and an alias writ 
is one used after another writ has already been issued in 
the same cause. 

Sec. 391. Complaint. — 

"il/en. I am known to be a humorous patrician, and one 
that loves a cup of hot wine, wdth not a drop af 
allaying Tiber in't; said to be something imperfect, 
in favoring the first complaint. "- 

The speaker here describes himself as a humorous patri- 
cian, who takes his drinks "straight," or without dilution, 
and a weakness that makes him favor the "first com- 
plaint." A complaint is the allegation, made to a proper 
officer, that some other person has been guilty of a desig- 
nated offense, with an offer to prove the fact, and a re- 
quest that the offender may be punished. It is a tech- 
nical term, descriptive of proceedings before magistrates.^ 

One so full of sympathy for his fellow-man, that after 
hearing his complaint, he would be so moved as to always 
favor the one first heard, would be so emotional and so 
loyal to his first impulses, as to be more or less "imper- 
fect," in this particular, as the Poet here intimates. 

Sec. 392. Bencher. — 

"Bru. Come, come, you are well understood to be a per- 
fecter giber for the table, than a necessarv bencher 
In the Capitol."* 



* Coriolanus, Act II, Scene I. 
" Coriolanus, Act II, Scene I. 
»11 Pick. (Mass.) 436. 
*Coroilanus, Act II, Scene I. 



408 THE LAW IN SHAKESPEARE. 

Brutus thus charges that Menelaus was a better ''after 
dinner speaker" than one to dispense justice in the Cap- 
itol. ''Bench" is a tribunal for the administration of jus- 
tice and a "Bencher" is one who occupies the bench and so 
dispenses justice.^ A "Bencher" at English law, was also 
one who was a senior, at the Inns of Court and was accord- 
ingly entrusted with the direction or government of the 
Inn, with the absolute power of punishing barristers guilty 
of misconduct, by admonishing or rebuking them; by 
forbidding them to dine in the hall, or b}'' expelling them.^ 

Sec. 393. Pleaders.— 

"Bru. We must suggest the people, in what hatred 
He still hath held them ; that, to his power, he would 
Have made them mules, silenc'd their pleaders, and 
Disproportioned their freedoms."^ 

Brutus here threatens to incite the people by appealing 
to their prejudice against Coriolanus, caused by his ad- 
verse attitude and friendliness for the patricians and 
against the plebeians. He would tell them that he would 



^ Bacon, Abr., Courts; Viner, Abr., Courts. 

* Wharton's Law Lexicon, (2 Lond. Ed.); Bouvier's Law Dic- 
tionary. 

The Romans used the word tribunalia, to indicate the seats of 
the higher judges, and sub-sella, to refer to those of the lower 
judges. I Reeve's Hist. Eng. Law, 4; Spellman, Gloss. Bancus. 

The Court of Common Pleas, in England, was formerly called 
Bancus, the Bench, to distinguish it from Bancus Regis, the 
King's Bench. Viner, Abr., Courts (n. 2). 

'Coriolanus, Act II, Scene I. 

In Titus Andronicus, Saturninus is made to say: 
"Sat. Defend the justice of my cause with arms; 
And, countrymen, my loving followers. 
Plead my successive title with your swords." 

(Act I, Scene I.) 



THE LAW IN SHAKESPEARE. 409 

allow them no voice at all, in the affairs of government ; 
would deny their authority by vote in the comitia, to ratify 
or endorse the acts of public magistrates and that he would 
make them mere ''mules," to perform their duties of 
citizenship in silence, and deny them the right of their 
tribunes to speak for them and in their interests and be- 
half. Pleading is here used in the sense of making a 
forensic argument, for the populace, which is not its 
strict use in the profession. 



Sec. 394. Tarpeian rock. — 

"Sic. Therefore, lay hold of him ; 

Bear him to the rock Tarpeian, and from thence 
Into destruction cast him."^ 

The whole of the Capitoline hill was originally called 
by the name of Tarpeian rock, but the term was latterly 
confined to a portion of the southern part of the rock, 
which was very precipitous. There is a legend that in 
the time of Romulus, a vestal virgin, named Tarpeia, the 
daughter of St. Tarpeius, governor of the Romans, being 
bribed by gold by the soldiers of the Sabines, opened a 
gate to the fortress, to admit the Sabine king, who with 
his soldiers had come to revenge the rape of the Sabine 
women, and Tarpeia was crushed and buried on a part 
of the hill, which bears her name. 

The rock subsequently became used for the killing of 
persons condemned on the charge of aspiring to restore 
the monarchy, during the republic, or of treason to the 
State, such adjudged criminals being hurled from the 
rock, and the famous Manlius, the victorious defender 
of the capital, during the invasion of the Gauls, lost his 
life in this way.^ 

*Coriolanus, Act III, Scene I. 
* Gibbon, Niebuhr, Arnold. 



410 THE LAW IN SHAKESPEARE. 

Sec. 395. Resisting Law. — 

"Sic. ... he hath resisted law, 

And therefore law shall scorn him further trial 
Than the severity of the public power, 
"Which he so sets at nought."^ 

Sicilius declares that one who has scorned the forms of 
law, should be dealt with in a summary manner, as an 
outlaw and in this instance that Coriolanus was entitled 
only to a trial by the comitia, or the vote of the people, 
whose power he had spurned. This verse shows the 
Poet's respect for law, in the abstract, as the medium 
through which the rights of the citizens are enjoyed. 
"He hath resisted law," as presented here, is a serious 
charge and one that the speaker believes entitles the party 
guilty of such offense to no legal protection. Like poor 
Shylock's plea, when he "stands for law," this illustrates 
the deep insight into the world of law, as the only correct 
medium through which the proper ideals of equality and 
justice can be attained and shows the lawyer's respect 
for the law, in the abstract, that ought to be better under- 
stood by all citizens. 

Sec. 396. Process.— 

"Men. One word more, one word. 

This tiger-footed rage, when it shall find 
The harm of unscann'd swiftness, will, too late, 
Tie leaden pounds to his heels. Proceed by process; 
Lest parties (as he is belov'd) break out. 
And sack great Rome with Romans."- 

Menelaus advised and counsels temperate and lawful 
means only to punish the accused one. Admonishes 
against the danger of the mob and the overthrow of law^ 
and suggests that when the law is trampled under foot 
in the one instance, it is likely to spread and bring a 



* Coriolanus, Act III, Scene I. 
= Coriolanus, Act III, Scene I. 



THE LAW IN SHAKESPEARE. 411 

widespread reign of lawlessness upon Rome. "Proceed by 
process." This is lawyer-like advice, to enjoy only the 
rights which the law guarantees, through the remedial 
procedure of the courts, which crystallized into funda- 
mental or organic law, in this country, by our provision 
that no one should be denied his rights, except upon "due 
process of law."^ 

"Process" is a word used to convey the means of com- 
pelling a defendant to appear in court, after suing out 
the original writ, in a civil suit, or after indictment found, 
in a criminal case.- Coriolanus' friend advises against 
his arrest without process, but counsels proceeding in a 
lawful, orderly manner only. 

Sec. 397. Death by the wheel. — 

"Cor. Let them pull all about mine ears; present me 
Death on the w^heel, or at the wild horses heels; 
Or pile ten hills on the Tarpeian rock, 
That the precipitation might down stretch 
Below the beam of sight, yet will I still 
Be thus to them."^ 



' See 14th Amendment to U. S. Con. 
^ 3 Sh. Bl. Comm. 279. 

Cleopatra asks Antony: 
''Cleo. Is come from Caesar; therefore, hear it, Antony. — 
Where's Fulvia's process? Caesar's, I would say." 

(Act I, Scene I.) 

Doctor Rolfe gives the definition of process, presented by Malone 
and taken from the Dictionary of Minsheu (1617) as follows: 
"The writings of our common lawyers sometimes call that the 
process by which a man is called into court and no more." (Rolfe's 
Antony and Cleopatra, p. 213, notes.) 

The King, in Hamlet, after dispatching Rosencrantz and Gilden- 
stern, remarks: "After the Danish sword and thy free awe, 
Pays homage to us, thou may'st not coldly set. Our sovereign 
process." (Act IV, Scene III.) 

» Coriolanus, Act III, Scene IT. 



412 THE LAW IN SHAKESPEARE. 

This is a defiance, on Coriolanus' part, of the attempted 
power of the plebeians and a challenge that he will not 
abide it, regardless of the consequences to himself. Such 
a speech is in strict accord with the stern bravery and 
uncompromising dignity of this proud patrician, viewed 
in the light of the struggle between the patricians and 
plebeians at this period.^ Punishment by the ''wheel" 
was inflicted upon a criminal who was placed on a revolv- 
ing wheel and his bones w^ere then broken, until he ex- 
pired.^ It was in vogue in ancient Rome and Coriolanus, 
as here quoted, was willing to suffer this torture rather 
than surrender his principles. 

Sec. 398. Trial by Comitia. — 

"Sic. Draw near, ye people. 

Aedi. List to your tribunes; audience: Peace, I say. 

Cor. First, hear me speak. 

Both Tri. Well, say. — Peace, ho. 

Cor. Shall I be charg'd no further than this present? 

Must all determine here? 
Sic. I do demand. 

If you submit you to the people's voices, 

Allow their officers and are content 

To suffer lawful censure for such faults 

As shall be prov'd upon you? 
Cor. I am content. 



Sic. Answer to us. 
Cor. Say then; 'tis true, I ought so. 
Sic. We charge you, that you have contriv'd to take 
From Rome, all season'd office, and to wind 



^Gibbons' Rome; Niebuhr, Arnold. 
^Bouvier's Law Dictionary. 

Paulina refers to torture by the wheel, in Winter's Tale, when 
she asks Leontes: 

"Paul. What studied torments, tyrant, hast for me? 
What wheels? racks? fires? etc." (Act III, Scene II.) 



THE LAW IN SHAKESPEARE. 413 

Yourself into a power tyrannical; 

For which, you are a traitor to the people. 



Sic. Mark you this, people? 

Git. To the rock with him; to the rock with him."^ 

The Poet here gives the real significance to the semi- 
historical traditions obtaining some 500 years B. C. when 
Caius Marcus, surnamed Coriolanus, struggled to prevent 
the poor plebeian from being placed upon an equal foot- 
ing, in the affairs of government, with the rich patrician. 

The plebeian soldiers, after their victory over the Vols- 
cians, had threatened to form a rival cit}'', unless their 
right of voting in such trials was recognized, and thus the 
comitia tribuna, a sort of rival power in the affairs of 
the government, to the consulate of the patricians, was 
recognized. The comitia was the regularly convened 
meeting of the Roman people, for the purpose of voting 
on some public question. The different departments of 
government, now recognized, were not separated at this 
period of the world's history ; it was a fundamental prin- 
ciple of Roman Government that the supreme power was 
inherent in the people, though it might be delegated by 
them to elected or hereditary magistrates. All important 
matters, however, had to be brought before the sovereign 
people, who could ratify or reject, the proposals made to 
them, without a discussion. The power of the people, 
swayed, as they were by improper appeals and motives, 
led, ultimately, to a period of moral and political corrup- 
tion, which was followed by the military despotism of the 
Caesars. And although the first few emperors called the 
people together, in pursuance to this former custom of 
the republic, the meetings were only to ratify the acts 
of the emperors, and finally the power of the comitia, 
which the Poet presents as condemning Coriolanus to 



* Coriolanus, Act III, Scene II. 



414 THE LAW IN SHAKESPEARE. 

banishment, became an institution known only to the 
traditions of the past greatness of the eternal city.^ 

^ See Gibbon, Niebuhr, Arnold. 

As this trial by the comitia, is presented, Shakespeare makes 
Coriolanus defy the power of the people, as follows: "Cor. I'll 
know no further: Let them pronounce the steep Tarpeian death, 
vagabond exile, flaying," etc., and to this defiance, Sicinius, ap- 
peals to the people: "-Sic. ... In the name o' the people. And 
in the power of us the tribunes, we, even from this instant, banish 
him our city; In peril of precipitation from off the rock Tarpeian, 
never more to enter our Roman gates; I' the people's name, I say, 
it shall be so." And the people ratify this judgment, as follows: 
"Cit. It shall be so; it shall be so; let him away; he's banish'd, 
and so it shall be." (Coriolanus, Act III, Scene II.) 



CHAPTER XXIX. 

"JULIUS CESAR." 

Sec. 399. English statutes of "Laborers and Mechanics." 

400. Idealism the basis of Brutus' crime. 

401. Cassius the typical criminal revolutionist. 

402. Cassius' suggestion of the crime. 

403. Brutus' struggle with his conscience. 

404. The people's cause, the motive for Brutus' murder. 

405. "The Law of children." 

406. "The King can do no wrong." 

407. Caesar's will. 

408. The effect of error. 

409. Antony's tribute to Brutus' character. 

Sec. 399. English statutes of laborers and mechanics. — 

"Flavins. Hence! home, you idle creatures, get you 
home. 
Is this a holiday? What: know you not. 
Being mechanical, you ought not walk 
Upon a labouring day without the sign 
Of your profession?"^ 

The regulation of the rights of laborers, mechanics and 
artisans was a frequent source of legislation in England, 
at an early day. During the reign of Edward III, be- 
cause of the scarcity of mechanics and laborers, they took 
occasion to demand exorbitant wages and refused to work 
unless they received wages commensurate with their ideas 
of the value of their services. It became necessary to 
reduce them to subordination, as the nobility supposed, 
so various statutes were enacted with this end in view. 

By statute, 23 Edw. Ill, c. 2, every able-bodied male or 
female, without land and able to work, was required to 
work at the wages customary, the six preceding years of the 
king's reign ; they were required to bring their implements 
of trade into town and there be hired at a common, public 

^ Julius Caesar, Act I. Scene I. 

(415) 



416 THE LAW IN SHAKESPEARE. 

place; any workman or artisan failing to comply with 
the act, was to be punished by imprisonment, and the 
justices for the execution of the act were to hold sessions 
four times a year, at the Annunciation, on St. Margaret, 
St. Michael and St. Nicholas's day; they were required 
to regulate the conduct of laborers, and artisans and 
laborers, or mechanics, absenting themselves before the 
termination of their contract, were to be branded on the 
forehead with a red hot iron, containing the letter "F," 
to denote their falsity.^ By statute during the reign of 
Richard II, (12 Richard II, c. 6) it was ordained that 
no servant, laborer nor artificer should carry a sword or 
buckler, except in time of war, or when traveling with 
their masters, but they were allowed bows and arrows and 
such other small trifles, on Sundays and public holidays.- 
By 13 Richard II, c. 8, the justices at their sessions between 
Easter and St. Michael were to make proclamation of how 
many and what kind of victuals all masons, carpenters, 
tilers and others craftsmen should take by the day,^ and 
by 7 Henry IV, c. 17, it was provided that, whereas, "for 
the pride of clothing and other evil customs that servants 
do use in the same," the crafts in cities and buroughs 
had become depleted and laborers of this class most scarce, 
the act proceeded to remedy this evil, resulting from "the 
pride of clothing," etc.* It was no doubt to some of 
these English acts that the Poet refers in the above lines, 
for he always gave the foreign countries of which he wrote, 
the laws and manners and customs of England. 

Sec. 400. Idealism the basis of Brutus' crime. — 

''Bru. . . . But wherefore do you hold me here so 
long? 
What is it that you would impart to me? 



^ III Reeve's History Eng. Law, pp. 132, 133. 
= 111 Reeve's History Eng. Law, 366, 367. 
' Ante idem. 
* III Reeve's History Eng. Law, pp. 413, 414. 



THE LAW IN SHAKESPEARE. 417 

If it be aught toward the general good, 

Set honour in one eye, and death i' the other, 

And I will look on both indifferently: 

For, let the gods so speed me, as I love 

The name of honour more than I fear death. "^ 

In analyzing the motives which led Brutus to murder 
his friend, the expert criminologist, August Goll, observes : 
"This is precisely the nature of the pronounced theorist. 
His train of ideas amounts almost to a rubric. He cannot 
concur in anything, unless it is founded on a theory, a 
principle, a syllogism. . . . From the moment the 
voice of his feelings seems to him to be prompted by his 
reason, his freedom of action is practically at an end. 
Without this theory he can do nothing, with it he can 
do all. Once formed, he must follow^ it and take the 
consequences of it. It becomes the highest moral duty 
to himself. No consideration of wife, friends, his own 
welfare, can shake him a hair's breadth from the respon- 
sibility, the duty, which his theory lays upon him, which 
appears to have become one, with his innermost ethical 
self. If the theory lead him to outrage all human feel- 
ings, so much the more it is his duty to follow it and 
to conquer sentiment. That is what his honour demands ; 
and — 'I love the name of honour more than I fear death.' 

On no account must one think that Brutus's feeling of 
gratitude and friendship for Caesar must have been false 
and insincere, or that they were not deep, because he can 
find it in his heart to kill him. . . . The greater we 
picture to ourselves Brutus's love of and gratitude to 
Csesar, the greater he himself is, because his altruism has 
had the more to conquer, and the nearer he attains to the 
absolutely heroic."^ 



' Julius Csesar, Act I, Scene II. 

^ Goll's Criminal Types in Shakespeare, pp. 54, 55, 57. 

Goll points out that Brutus will not even desert his ideals, after 
the misfortunes of his private life and the strokes of adversity 
have blasted all his hopes, for "in purity of thought he is the 



418 THE LAW IN SHAKESPEARE. 

Sec. 401. Cassius the typical criminal revolutionist. — 

"Cas. ... I cannot tell what you and other men 
Think of this life; but, for my single self, 
I had as lief not be, as live to be 
In awe of such a thing as I myself. 
I was born free as Caesar; so were you: 
We both have fed as well; and we can both 
Endure the winter's cold as well as he."^ 

This portrayal of Cassius, shows the envy and hatred 
of the typical criminal revolutionist, who cannot brook 
the sight of one grow^n greater than himself. Considering 
the criminal character of this conspirator, as presented by 
the Poet, Goll said: "Cassius, with his mixture of polit- 

same: he carries the banner of the ideal as high as ever. He 
belongs to those whom adversity does not make smaller, nor 
experience more clever. He has learned nothing from his earlier 
errors, because they were the outcome of his innermost nature, 
not of insufBcint knowledge." (Goll's Criminal Types in Shake- 
speare, p. 70.) 

Illustrating the high ideals of Brutus, where the public inter- 
est was in issue, Plutarch describes how he had taken sides with 
Pompey, as against Caesar, although his father had been put to 
death by Pompey. He said: "Thinking it his duty to prefer the 
interest of the public to his own private feelings, and judging 
Pompey's to be the better cause, he took part with him; though 
formerly he used not so much as to salute or take any notice of 
Pompey, if he happened to meet him, esteeming it a pollution to 
have the least conversation with the murderer of his father." 
(Plutarch's Life of Marcus Brutus.) 

And referring to the object of the conspirators in urging Brutus 
to take part with them, Plutarch said: "Their opinion was that 
the enterprise wanted not hands or resolution, but the reputation 
and authority of a man such as he was, to give, as it were, the 
first religious sanction, and by his presence, if by nothing else, to 
justify the undertaking; that without him they should go about 
this action with less heart and should lie under great suspicions 
when they had done it, for, if their cause had been just and 
honorable, people would be sure that Brutus would not have re- 
fused it." (Plutarch's Life of Marcus Brutus.) 

* Julius Caesar, Act I, Scene II. 



THE LAW IN SHAKESPEARE. 419 

ical and personal hatred, with his power to let the one 
strengthen the other, is the type of one of the groups of 
which the adherents of revolution consists, the great haters, 
those who, as Auguste Comte says, about the followers of 
the great French Revolution, are perpetually in a condi- 
tion of 'chronic rage' which enables them, whenever they 
consider the right moment has come, to perform the most 
horrible actions — the men of whom the anarchists of the 
present time, are the lineal descendants. Cassius possesses 
the energy proper to this hatred, to gather, lead, and agi- 
tate, to compel the others to follow. Always active, recon- 
noitering, intriguing, enlisting followers, considering 
chances, quick of mind and subtle of reason, he disports 
himself like a fish in water at nightly conferences, at 
solemn meetings; caring nothing about thunderstorms 
and warnings, never losing sight of his aim, always 
working to gain ground, always discerning where some- 
thing may be won, what is worth troubling about, where 
the chances lie."^ 

Sec. 402. Cassius' suggestion of the crime. — 

"Cos. Why man, he doth bestride the narrow world. 
Like a Colossus; and we petty men 
Walk under his huge legs, and peep about 
To find ourselves dishonourable graves. 
Men at some time are masters of their fates: 
The fault, dear Brutus, is not in our stars, 
But in ourselves, that we are underlings. 

There was a Brutus once, that would have brook'd 
The eternal devil to keep his state in Rome, 
As easily as a king. 



' Goll's Criminal Type sin Shakespeare, pp. 43, 44. 

And it is this very characteristic, noted by this criminologist, 
that the Poet makes Caesar also note, when he said to Antony: 
"Yond Cassius has a lean and hungry look; He thinks too much: 
such men are dangerous." And history affords evidence that 
this remark was really made of this criminal revolutionist by the 
discerning Csesar. (Plutarch's Life of Marcus Brutus.) 



420 THE LAW IN SHAKESPEARE. 

Bru. That you do love me, I am nothing jealous; 
What you would work me to, I have some aim; 
How I have thought of this, and of these times, 
I shall recount hereafter; for this present, 
I would not, so with love I might entreat you, 
Be any further mov'd. What you have said, 
I will consider; what you have to say, 
I will with patience hear: and find a time 
Both meet to hear, and answer, such high things."^ 

Cassius' appeal to Brutus, as the descendant of Lucius 
Junius Brutus, who it is suggested, would never have 
brook'd a king in Rome, is presented as the suggestion 
that puts the mind of Brutus in a proper frame to after- 
ward accept the crime as the only logical remedy for the 
evils that he must free the people from. Cassius knew 
that Brutus would be moved alone by his sense of duty 
to the people, hence he presents the duty, which he must 
not shirk. Brutus is already troubled as to how he ought 
to act, under all the circumstances and Cassius suggests 
that he ought to act in this way, i. e., he ought to rid 
the people of this ambitious man. It is as if a light 
plainly led him now, in this direction and this sugges- 
tion furnishes the inducement that was needed to resolve 
his indecision. Cassius' words have had the desired effect 
for 

"Brutus had rather be a villager 
Than to repute himself a son of Rome 
Under these hard conditions as this time 
Is like to lay upon us." 

But Brutus is not a man of impulse or sentiment and 
will not be driven to the commission of the crime by the 
mere force of suggestion from another. He will weigh 
the evidence and himself determine upon the proper course 
to pursue, with regard solely to his fixed duty to the pub- 
lic. He would not, at present, "be any further mov'd," 
but he "will consider" all that Cassius has had to say. 

* Julius Caesar, Act I, Scene II. 



THE LAW IN SHAKESPEARE. 421 

He will not consent to the commission of the crime, until 
he has had ample time for reflection and to harmonize 
the deed with his sense of duty and his high ideals. But 
of course the seed is sown and the suggestions made by 
Cassius will bring his reason into line with the sugges- 
tions of the criminal revolutionist. 

Sec. 403. Brutus' struggle with his conscience. — 

"Bru. Since Cassius first did whet me against Caesar, 
I have not slept. 

Between the acting of a dreadful thing 
And the first motion, all the interim is 
Like a phantasma, or a hideous dream: 
The genius, and the mortal instruments. 
Are then in council; and the state of man, 
Like to a little kingdom, suffers then 
The nature of an insurrection."^ 

True to the character of this high-minded theorist, 
Shakespeare maizes of Brutus the man of conscience, who 
must first reason the thing out for himself and become 
convinced that right is on his side, before he can com- 
mit himself to the commission of the deed. He was no 
man of impulse, with a personal hatred or grievance to 
gratify in this murder, who surrendered himself, on the 
first suggestion of the deed ; but he had to first bring his 
reason and his proper idea of the deed to correspond with 
his theories before he would consent to proceed in the en- 
terprise. He had to overcome not only his own con- 
scientious scruples against such a deed, but also his per- 
sonal friendship and love for Cassar and his horror for such 
a cowardly deed, for Brutus was a man of brave deeds. 
Opposed to these motives, which impelled him in the 
opposite direction, he had to consider the interests of the 
people and the danger resulting to their cause, from the 
crowning of a king in Rome. With these conflicting im- 
pulses and the struggle with his conscience, Brutus had 



^ Julius Caesar, Act II, Scene I. 



422 THE LAW IN SHAKESPEARE. 

not slept, ''since Cassius first did whet" him against Csesar; 
ever since the suggestion of the crime he had been like a 
visionary, or one experiencing ''a hideous dream." And 
''like to a little kingdom," he had suffered "the nature of 
an insurrection." 

Sec. 404. The people's cause the motive for Brutus' 
murder. — 

"Bru. No, not an oath : If not the face of men 

The sufferance of our souls, the time's abuse, — 
If these be motives weak, break off betimes, 



Plutarch mentions the high ideals of Brutus for law and his 
duty, as he saw it, by pointing out that on one occasion, when 
he was Praetor, and had patiently and laboriously heard the evi- 
dence and given judgment in a cause and the party against whom 
his decision was rendered, raised a great clamor and appealed to 
Caesar, Brutus calmly replied that "Caesar does not hinder me, 
nor will he hinder me, from doing according to the laws." (Plut- 
arch's Life of Marcus Brutus.) 

It was no doubt this stern adherence to duty and law, as he 
saw it, that led this upright citizen into the commission of the 
murder of his friend and protector, the great Caesar. 

Judged by strictly legal standards, of course the offense is none 
the less murder, because the life of a human being was taken In 
an illegal manner, by an upright citizen, or one possessed of the 
best motives. Every illegal killing of a human being, is murder 
or manslaughter, according to the circumstances of the killing 
and this violation of the law, by taking the life of a human being, 
on grounds of public policy, could not be the subject of explana- 
tion, as a lawful defense of the killing, but it could only be held 
murder to take the life of a human being, in an unlawful man- 
ner, or otherwise the lives of persons would have little or no 
protection by the law, but the better the citizenship or motives 
of the wrongdoer, the less chance there would be to secure con- 
victions for such crimes. Brutus was therefore, in the legal view, a 
murderer, because he conspired to take the life of a human 
being, in an illegal manner, but nevertheless, in studying the 
character of the man, and analyzing his motives, it is proper 
to compare him with the other criminals who entered into the 
conspiracy for less noble motives than those which prompted him 
to act. 



THE LAW IN SHAKESPEARE. 423 

And every man hence to his idle bed; 

So let high-sighted tyranny range on, 

Till each man drop by lottery. But if these, 

As I am sure they do, bear fire enough 

To kindle cowards, and to steel with valour 

The melting spirits of women; then, countrymen, 

What need we any spur, but our own cause, 

To prick us to redress? what other bond, 

Than secret Romans, that have spoke the word, 

And will not palter? and what other oath, 

Than honesty to honesty engag'd, 

That this shall be, or we will fall for it? 

Swear priests, and cowards, and men cautelous. 

Old feeble carrions, and such suffering souls 

That welcome wrongs; unto bad causes swear 

Such creatures as men doubt: but do not stain 

The even virtue of our enterprise, 

Nor the insuppressive mettle of our spirits. 

To think, that, or our cause, or our performance, 

Did need an oath."^ 

Brutus is here presented as a criminal or conspirator 
who will not act upon either sentiment or impulse, but is 
SM^ayed to the commission of his crime by the highest 
sense of his duty to further the cause of the people of 
Rome. Dante wrongfully assigns to Brutus a place in 
hell alongside the traitor Judas. As he himself explained 
to the people of Rome it was "not that I loved Caesar less, 
but that I loved Rome more." He sacrificed his love for 
Caesar for the sake of the people's cause, as he viewed it 
and it was not that his love for Csesar was small, in pro- 
portion to the sense of his duty, toward the people, but 
that this all impelling sense of duty was so great as to 
overcome his own personal regard for Caesar. Of course, 
from a strictly legal standpoint, it does not mitigate the 
crime, that the criminal was prompted to commit the 
offense by the strictest sense of duty,' but in analyzing the 

^ Julius Caesar, Act II, Scene I. 

= In the trial of the fanatic Guiteau, for the murder of President 
Garfield, the defense was urged that the murderer was impelled 
to commit the crime while acting under the hallucination of a 



424 THE LAW IN SHAKESPEARE. 

motives of the criminal, the same degree of moral turpi- 
tude cannot attach to one who acts from a high sense of 
duty, rather than the base motives that usually prompt 
such crimes. Contrasted with the envy and personal hatred 
which prompted Cassius to murder Caesar, the altruistic 
feelings and motives that led Brutus to subordinate his 
personal interests and love for Caesar to his high public 
duty, makes the ethical mastery that he gained over him- 
self the more complete. 

The moving force that impelled him to the commission 
of the crime was that "high-sighted tyranny" should not 
"range on." With this high sense of his personal duty, 
he did not regard the enterprise as a "bad cause" and 
so entreated his accomplices not to "stain the even virtue" 
of the enterprise, "nor the insuppressive mettle" of their 
spirits by an ignoble oath. 



Divine command, but it was held to be incompetent to tlius over- 
come the guilty intent to commit the crime of murder and that 
such a defense was unavailing. 

In refusing the suggestion that Antony should also be killed, 
Brutus tells Cassius: 
"Bru. Let us be sacrificers, but no butchers, Caius. 

We all stand up against the spirit of Caesar; 

And in the spirit of men there is no blood: 

O, that we then could come by Csesar's spirit, 

And not dismember Caesar: But, ^las, 

Caesar must bleed for it. And, gentle friends. 

Lets kill him boldly, but not wrathfully; 

Let's carve him as a dish fit for the gods. 

Not hew him as a carcass fit for hounds." (Act II, Scene I.) 

In his address to the Romans, after the murder of Caesar, Brutus 
avowed his love for Caesar, in the following words: "Bru. If 
there be any in this assembly, any dear friend of Caesar's, to him 
I say, that Brutus' love to Caesar was no less than his. If then 
that friend demand, why Brutus rose against Caesar, this is my 
answer, — Not that I loved Caesar less, but that I loved Rome more. 
Had you rather Caesar were living, and die all slaves; than that 
Caesar were dead, to live all free men? As Csesar loved me, I weep 
for him; as he was fortunate, I rejoice at it; as he was valiant, I 



THE LAW IN SHAKESPEARE. 425 

Sec. 405. "The law of children."— 

"Cassar. I must prevent thee, Cimber, 

These couchings and these lowly courtesies 
Might fire the blood of ordinary men, 
And turn pre-ordinance and first decree 
Into the law of children,"^ 

The Poet intends to make great Csesar "stand for law" 
and not for the fickle, vacilating law of children, which 
would be shaped and formed by the emotions and childish 
fancies, but the fixed, steady law of strong men. Csesar 
was like the "northern star" in his fixedness and true 
"resting quality," while his lesser fellows did not possess 
these elements of greatness. In other words, he had pro- 
nounced judgment in the case of Cimber's brother and 
unless he could be shown that this judgment was wrong, 
he could not be influenced by his emotions or the appeals 
of the influential, to set aside his former judgment, for 
this would make the law of Csesar a thing of ridicule, 
and reduce his fixed, constant decrees to the plane of 
childish law.^ 



honour him: but, as he was ambitious, I slew him." (Act III, 
Scene II.) 

Illustrating the high regard of the ancient Romans for law and 
order, Plutarch shows how Augustus Csesar, on his accession, to 
the consulship, "immediately ordered a judicial process to be 
issued out against Brutus and his accomplices, for having mur- 
dered a principal man of the city, holding the highest magis- 
tracies of Rome, without being heard or condemned; and he ap- 
pointed Lucius Cornificus to accuse Brutus and Marcus Agrippa 
to accuse Cassius. None appearing to the accusation, the judges 
were forced to pass sentence and condemn them both. It is re- 
ported, that when the crier from the tribunal, as the custom was, 
with a loud voice cried Brutus to appear, the people groaned 
audibly, and the noble citizens hung down their heads for grief." 
(Plutarch's Life of Marcus Brutus.) 

^ Julius Csesar, Act III, Scene I. 

= It is barely possible that the Poet, in these lines, wherein he 
refers to the "law of children," meant the old law of England by 
which the lord of the manor was given the right to exact a fine 



426 THE LAW IN SHAKESPEARE. 

Sec. 406. "The king can do no wrong." — 

"Csssar. Know Caesar doth not wrong, nor without cause 
Will he be satisfied."^ 

The Poet in these lines puts into the mouth of Caesar 
the common law of England, by which it was held that 
the "king could do no wrong." It was a necessary and 
fundamental principle of the English Constitution that 
the king ''could do no wrong." Whatever was amiss in 
the conduct of public affairs could not be charged per- 
sonally to the king; his ministers alone were accountable 
for wrongs done to the people; the prerogative of the 
crown extended to doing only good, for as the king reigned 
for the benefit of the people it was not possible for him 
to do wrong.^ The law supposed an entire absence of 
capacity to do wrong, because of the excellency of the 
king's person and the perfection of his virtues; he was 
presumed incapable of committing folly, much less of 
committing crimes, hence was not under the coercive 
power of the law, whose province was the redress of 
wrongs.^ Caesar occupied the analogous position of king, 
or Imperator of the Romans, hence Shakespeare endows 
him with the attributes of royalty, enjoyed by English 
kings, before the law. 

Sec. 407. Caesar's will. — 

"Ant. . . . But here's a parchment, with the seal of 
Ca'sar, 
I found it in his closet, 'tis his will: 
Let but the commons hear this testament, 
(Which, pardon me, I do not mean to read,) 
And they would go and kiss dead Caesar's wounds. 



for every child begotten by his bond-women, without his own con- 
sent. Every reputed father of a bastard was required to pay 
a small fine to the Lord and for this trivial offering the law was 
overlooked, on the part of the lord of the manor. (Cowel.) 

^ Julius Caesar, Act III. Scene I. 

*III Shars. Bl. Comm., sec. 255, p. 173; IV idem., sec 33, p. 351. 

* IV Shars. Bl. Comm., sec. 33, pp. 351, 30. 



THE LAW IN SHAKESPEARE. 427 

And dip their napkins in his sacred blood ; 
Yea, beg for a hair of him for memory, 
And, dying, mention it within their wills, 
Bequeathing it, as a rich legacy, 
Unto their issue. 

• •••••• 

Here is the will, and under Caesar's seal. 

To every Roman citizen he gives, 

To every several man, seventy-five drachmas. 

Moreover, he hath left you all his walks, 
His private arbours, and new-planted orchards, 
On this side Tyber; he hath left them you. 
And to your heirs forever; common pleasures. 
To walk abroad, and recreate yourselves."^ 

The Poet gives no undue prominence to the fact that 
Caesar's will contained his seal, for both by the common law 
and law of ancient Rome, such documents were required to 
be under seal. Indeed, at any early period, seals were given 
much more prominence in legal documents, such as wills, 
than at the present day, and all prominent individuals had 
their impressions made on wax, or other soft substance, 
with a die, or matrix, or a gem, which was used as their 
private seals. Sealed rings were in use, in Egypt, at an 
early day, by which such documents were sealed, and a 
variety of devices were in use in Rome, both by the earlier 
emperors and by private individuals.^ 

As history quotes the will of Caesar, he left a substantial 
legacy to each one of the Roman citizens, but the bulk of 
his estate was left to the son of his niece, afterwards known 
as Augustus Caesar. Antony acted as executor of this 
will, until young Caesar was unable to compel him to 
carry out the terms of the will and enforce the will of 
the testator, then he sought advice from Cicero, to com- 
pel Antony to carry out the terms of the will.^ 



* Julius Caesar, Act III, Scene II. 

- Gibbon's Rome. 

' Plutarch's Life of C«sar and Plutarch's Life of Antony. 



428 THE LAW IN SHAKESPEARE. 

Sec. 408. The effect of error. — 

^'Mes. . . . O hateful error, melancholy's child: 
Why dost thou show to the apt thoughts of men, 
The things that are not? O error, soon conceiv'd, 
Thou never com'st unto a happy birth, 
But kill'st the mother that engender'd thee."^ 

While this verse is not strictly applicable to legal error, 
any more than to any other kind of error, the remarks of 
Messala, on discovering that Cassius had yielded to error, 
are appropriate, in commenting upon any error, whereby 
a wrong results. Lawyers have especially to deal with 
the errors of the courts and ''alleged errors," when, in 
fact none exist and as the modern practice is said to be, in 
some quarters, but a ''quest for error," this description of 
the blighting effect of error, as a child of "melancholy," 
ought to make both courts and lawyers slow to fall into 
error, or to lead another into error. 

Sec. 409. Antony's tribute to Brutus' character. — 

"Ant. This was the noblest Roman of them all: 
All the conspirators, save only he. 
Did that they did, in envy of great Csesar; 
He, only, in a general honest thought, 
And common good to all, made one of them. 
His life was gentle; and the elements 
So mix'd in him, that Nature might stand up. 
And say to all the world. This tvas a man."'^ 

Brutus, as August Goll, the criminologist, shows, is but 
a murderer, when judged both by legal and worldly stand- 
Referring to the terms of this will, Plutarch said that "it ap- 
pearing by the will that Caesar had bequeathed to the Roman 
people seventy-five drachmas a man, and given to the public his 
gardens beyond Tiber (where now the temple of Fortune stands), 
the whole city was fired with a wonderful affection for him, and 
a passionate sense of the loss of him." (Plutarch's Life of Mar- 
cus Brutus.) 

^ Julius Csesar, Act V, Scene IIL 
* Julius Caesar, Act V, Scene V. 



THE LAW IN SHAKESPEARE. 429 

ards, for the spotlessness of his motives, or the high ideals 
which he sought to attain, cannot take away or destroy his 
guilt. On the grounds of public necessity, crime cannot 
be forgiven, by any explanation of a lack of criminal in- 
tent to commit an admitted criminal act. By this stand- 
ard, Brutus is a condemned murderer and no high aims 
of the man can palliate his crime. But the Poet has evi- 
dently not overlooked the man in the deed and he prefers 
to judge him, with his deep sympathy and generosity, 
according to the weakness of the race, by his exalted 
objects and spotless intentions. He will not let history 
write the last word, but puts words into Antony's mouth 
to mollify the harsh judgment of the law, upon his deed. 
Antony, as Shakespeare makes him speak, shows that this 
man was prompted solely by the general good and by no 
personal hostility or envy. He, alone, sought an ideal; 
he attempted to be more than a man, and to judge and 
avenge the wrongs of the greatest of the sons of men. 
In this he failed, because he was, at best, but "a man." 
But his purity of life, his honest impulses, his freedom 
from criminal instinct, can but commend the character of 
the man, to even the hardest judges of his crime, for 
while admitting his guilt, this epitaph of Antony, that 
"He only, in a 'general honest thought and common good 
to all, made one of them," distinguishes him from the 
guilty and envious conspirators who participated in thia 
interesting world's drama. ^ 

^ This is the conclusion of August Goll. See Goll's Criminal 
Types in Shakespeare, pp. 74, 75, 76, 77. 



CHAPTER XXX. 

"ANTONY AND CLEOPATRA." 

Sec. 410. Bourn. 

411. Leaving property in use. 

412. Title by descent and purchase, distinguished. 

413. Prorogue. 

414. Malefactor. 

415. Antony's suicide — Felo de se. 

Sec. 410. Bourn. — 

"Ant. There's beggary in the love that can be reckoned. 
Cleo. I'll set a bourn how far to be belov'd. 
Ant. Then must thou needs find out new heaven, new 
earth."! 

Bourn means a boundary or limitation. ^ Antony tells 
Cleopatra that a love without limit or boundary is the 
only kind of love for him. She asserts that there is a 
limitation or natural boundary line to her love, and he 
replies that she must necessarily find a proper limit to 
heaven and earth to do so, meaning that their love is as 
broad and limitless as the earth and the heavens. 

Sec. 411. Leaving property in use. — 

"Antony. Hear me, queen. 

The strong necessity of time commands 
Our services awhile, but my full heart 
Remains in use with you."^ 

A "use," by the English law, was a confidence reposed 
in another, who was made tenant of the land, or terre 

^ Antony and Cleopatra, Act I, Scene I. 
^ Bouvier's Law Dictionary. 

In his soliloquy, Hamlet speaks of the "undiscover'd country 
from whose bourn no traveler returns." (Hamlet, Prince of Den- 
mark, Act III, Scene I.) 

^Antony and Cleopatra, Act I, Scene III. 

(430) 



THE LAW IN SHAKESPEARE. 431 

tenant, that he would retain and use and finally 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.^ Uses were derived from the fide I com- 
missa of the Roman law, and it was the duty of the 
Roman magistrate, the praetor, to enforce the observance 
of this confidence.- This being the source of the English 
"use" it is quite proper for the Poet to make Antony 
use this legal term in advising her that he left his heart 
with her, in his absence. 

Sec. 412. Title by descent and purchase distinguished. — 

"Lep. . . . His faults, in him, seem as the spots of 
heaven, 

More fiery by night's blackness; hereditary. 
Rather than purchas'd ; what he cannot change. 
Than what he chooses."^ 

This verse distinguishes, clearly, between the title by 
descent and that by purchase, as it is known at law. 

In the law of real property, a title by descent, is a 
hereditary title, descending to an heir by operation of 
law, with which he has nothing to do as the acquisition 
of such title is involuntary, on h^'s part.* A title by pur- 
chase is one derived by bargain and sale, from the owner, 
hence, it is one voluntarily selected by the buyer or pur- 
chaser.^ 

Lepidus, out of charity for Antony, refers to his faults 
as mere ''spots of heaven;" as hereditary, rather than pur- 
chased; "what he cannot change, than what he chooses." 
In this last analysis, he distinguishes, as any lawyer might 
properly do, between things acquired by oneration of law, 



^Plowd. 352; Bacon, Law Tr., 150, 306; Coke, Litt. 272b; 2 BI. 
Comm. 328. 

'Bacon's Inst., 2, 23-2; 2 Bl. Comm. 333; Bacon, Law Tr. 335. 
^ Antony and Cleopatra, Act I, Scene IV. 
*Tiedeman's Real Prop. (3d ed.). Chap. Title by descent. 
"Tiedeman's Real Prop. (3d ed.). Chap. Title by Purchase. 



432 THE LAW IN SHAKESPEARE. 

in which the will of the possessor has nothing to do — and 
the law of nature is liken'd to the law of man — and the 
things voluntarily taken, by one's own choosing, as a title 
by purchase. It is a lawyer's excuse for one's natural 
weaknesses. 



Sec. 413. Prorogue. — 

"Pom. . . . Epicurean cooks, 

Sharpen with cloyless sauce his appetite; 
That sleep and feeding may prorogue his honor, 
Even till a Lethed dullness."^ 

Prorogue means to defer or postpone, as a term of Par' 
liament is said to be prorogued, or prolonged. Prorogue 
is sometimes used as a synonym for adjournment, when 
a trial is said to be prorogued, or a term of court is said 
to be prorogued, or adjourned.- 

Pompey would have the good things enjoyed by Antony, 
in Egypt, so dull his honor that it would be prolonged 
and put off, that his joinder in the war might be too late 
to avail his allies and thus Pompey would reap the benefit 
of his absence. 



Sec. 414. Malefactor. — 

"Cleo. I do not like, hut yet, it does allay 
The good precedence; fie upon hut yet; 
But yet is a gaoler to bring forth 
Some monstrous malefactor."^ 

Malefactor is a common legal term for a wrongdoer, 
or a violator of the law, and especially of the criminal law.* 

Cleopatra, out of her suspicion, or intuition, foresees 
the dark object concealed by the messenger and with a 



^Antony and Cleopatra, Act II, Scene I. 
' Tomlin's Law Dictionary. 
' Antony and Cleopatra, Act II, Scene V. 
^Couvier's Law Dictionary. 



THE LAW IN SHAKESPEARE. 433 

foreboding of the evil to come, looks upon the words 
used by the messenger as the accompaniment of some 
direful news, which the Poet compares to prisoners, ush- 
ered in by a jailor. 

Sec. 415. Antony's suicide — felo de se. — 

"Der. He is dead, Caesar; 

Not by a public minister of justice, 

Nor by a hired knife ; but that self hand, 

Which writ his honor in the acts it did. 

Hath, with the courage which the heart did lend it, 

Splitted the heart."^ 

The Poet here distinguishes accurately between suicide 
or felo de se, and death in a legal manner, or by a minister 
of justice. 

It was a crime, in England to kill one's self and an 
accessory to such a crime was guilty of murder.^ And 
the crime did not only extend to one wilfully killing him- 
self, but if one intended to kill another and killed himself, 
the crime was the same, by the English law. The punish- 
ment inflicted on a suicide, consisted, formerly in an 
ignominious burial, in the highway with a stake driven 
through the body, and without Christian rites, and the 
goods and chattels of the suicide were forfeited to the 
crown. ^ 



^Antony and Cleopatra, Act V, Scene I. 
^ II Reeve's History Eng. Law, 275. 
^ II Reeve's History Eng. Law, 275. 

The English Act of 1824 permitted burial in the churchyard of 
the suicide, without rites, between 9 and 12 p. m., but by the Act 
of 1882, burial at any hour, with the usual rites, were sanctioned. 

As a person committed felony in killing another, so, in law, he 
was held equally guilty in laying violent hands upon himself 
and this was called felonia de seipso. And Bracton shows that a 
man who killed himself forfeited his movables. Bract. 150. 



434 THE LAW IN SHAKESPEARE. 

Imogen, in speaking of self-slaughter, is made to say, in Cym- 
beline: 
"Imo. Against self-slaughter 

There is a prohibition so divine 

That cravens my weak hand." (Act III, Scene IV.) 

In pronouncing the funeral oration, at the grave of Ophelia, 
the Priest, in Hamlet, refers to the fact that 
"Her death was doubtful; 

And, but that great command oe'rsways the order. 
She should in ground unsanctified have lodg'd. 
Till the last trumpet." (Act V, Scene I.) 

Touching suicide, Hamlet is made to say: 
"Ham. O, that this too too solid flesh would melt. 
Thaw, and resolve itself into a dew: 
Or, that the Everlasting had not fix'd 
His canon 'gainst self-slaughter." (Act I, Scene II.) 



CHAPTER XXM. 

"CYMBELINB." 

Sec. 418. Bleetion to act in given way. 

417. Advocate. 

418. Condition of wager contract. 

419. Lawyer's duty to understand ease. 

420. Witness to action. 

421. Forfeiters. 

422. Frankleyn. 

423. Debtor overpassing bound. 

424. Demesne lands. 

425. Gnlderlua* defense of His crime. 

426. Upright Justicer. 

Sec. 416. Eleetion to act in given way. — ■ 

"1 Gent. . . . her own price 

Proclaime how she esteem'd Mm and his virtue; 
By her election may be truly read, 
What kind of man he is.^^^ 

Election, in the law, is the choice between alternating 
or inconsistent rights or claims.^ The right may arise, 
either under contract or independently of contract, as 
w^here one has the right, in case of loss^ either to pay a 
certain sum, or rebuild the property destroyed, the deci- 
sion of which course would be pursued, would be called 
making one's election. This right is of especial impor- 
tance in equity practice, where constantly recurring in- 
stances are arising of the assertion of the right. 

In the sense in which the term is used here, it is rather 

* Cymbeline, Aet I, Scene I. 
' Bouvier's Law Dictionary. 

In this same play, a Lord is made to say: "2 Lord. If it be a 
Bin to make a true election, she is damned." (Act I, Scene III.) 

(435) 



436 THE LAW IN SHAKESPEARE. 

to indicate the choice or selection of a particular person, 
over another, than one of two inconsistent rights or 
remedies. 

Sec. 417. Advocate. 

"Queen. . . . For you, Posthumus, 

So soon as I can win the offended king, 
I will be known your advocate."^ 

An advocate is generally defined as the "patron of a 
cause," and in Rome, those who assisted their clients with 
advice and pleaded their cause in the time of the Republic, 
were called by that name.^ The advocate, in Rome, con- 
ducted the cause in public, and was assisted by the pro- 
curator or attorney, who looked up the evidence and assist- 
ed the advocate.' 

The Queen, therefore, rightly selected the broader term, 
in promising to assist Posthumus in his suit for the hand 
of Imogen. 

Sec. 418. Conditions of wager contract. — 

"lach. By the gods, it is one: — If I bring you no suffi- 
cient testimony that I have enjoyed the dearest 
bodily part of your mistress, my ten thousand ducats 
are yours; so is your diamond, too. If I come off 
and leave her in such honour as you have trust in, 
she your jewel, this your jewel, and my gold are 
yours. . . . 

Post. I embrace these conditions; let us have articles 
betwixt us. . . . 

lach. Your hand ; a covenant : We will have these things 
set down by lawful counsel, and straight away for 
Britain ; lest the bargain should catch cold and starve : 
T will fetch my gold and have our two wagers re- 
corded. 



* Cymbeline, Act I, Scene II. 

' Bouvier's Law Dictionary. 

•Ulpian, Dig. 50, tit. 13; Tacitus, Annal. X. 6. 



THE LAW IN SHAKESPEARE. 437 

Post. Agreed. 

French. Will this hold, think you?"^ 

A condition is a limitation or restriction placed in a 
written agreement upon the performance of which an 
estate, interest or right becomes fixed or vested, but on 
the non-performance of which the estate determines.^ A 
condition necessarily refers to a future event or contin- 
gency, and not to a present or past event. Conditions are 
either expressed or implied, and by the express terms of 
this contract of wager, the gold of lachimo was to be 
transferred to Posthumus, if he did not succeed in his 
attempt upon the chastity of Imogen, while Posthumus' 
ring was to be his, if he succeeded in seducing her. 
lachimo, after Posthumus agrees to the conditions of the 
wager, demands that covenants be entered into, for the 
performance of the contract, and suggests that these things 
"should be set down, by lawful counsel," "lest the bargain 
should catch cold and starve." By this latter expression, 
he means that if the contract is not reduced to writing, in 
lawful form, the undertaking would amount to nothing, 
and in this he was correct, as he was in referring to the 
necessity of recording the wager, since the depositing of 
such documents in a public repository was a custom re- 
sulting from the Saxon usage continued long after the 
invasion of the Normans, whereby not only purchases of 
land, but testaments and other agreements were filed for 
safekeeping.^ 

The doubt, expressed by the Frenchman, as to the legal 
effect of this covenant, in the question : "Will this hold, 
think you?" is most pertinent to the subject matter of the 
agreement, for, of course, the undertaking upon which the 
condition rested, i. e., the seduction of a chaste female, 
is of such an illegal nature as to render the agreement 



^ Cymbeline, Act I, Scene V. 

='Bouvier's Law Dictionary; Lawson, Contracts (2d ed.) 238. 

' I Reeve's Hist. Eng. Law, p. 346. 



438 THE LAW IN SHAKESPEARE. 

utterly void, in law.^ The law, in guch cases, leaves the 
parties to illegal agreements where it finds them, refusing 
to interfere, either to enforce or relieve against agreements 
contrary to public policy.^ 

Sec. 419. Lawyer's duty to understand case. — 

''Clo. ... I will make 

One of her women lawyer to me; for 
I yet not understand the case myself."* 

Cloten's soliloquy, wherein he reflects that gold had 
often sav'd the thief, whereupon he concludes to try its 
eflfect upon the women attendants upon Imogen, is a fit- 
ting application of his revery to himself, but in placing 
them in the category of lawyers, by inducing them to 
betray their clients, he mistakes the primal duty of the 
lawyer. Loyalty to his client is the first duty of the 
lawyer and this duty is rarely broken by lawyers. It is 
likewise the duty of the lawyer to thoroughly understand 
his client's case, and in this respect Cloten's conclusion is 
proper, for while a client may not, himself, understand 
his cause, his lawyer ought always to know not only the 
facts, but the law applicable to those facts, in his client's 
favor. 

Sec. 420. Witness to action. — 

"Clo. You have abus'd me: — 

His meanest garment? 
Imogen. Ay; I said so, sir, 

If you will mak't an action, call witness to't."* 

Goten complains that he has been abused and Imogen, 
instead of withdrawing the objectionable speech, chal- 
lenges him to bring his action, if he will and call his 
witness. 



'Lawson, on Contracts, (2d ed.) Chap. Illegal Considerations. 
"Lawson, Contracts, (2d ed.) supra. 
•Cymbeline, Act II, Scene III. 
* Cymbeline, Act II, Scene III. 



THE LAW IN SHAKESPEARE 439 

An action is the form of a suit, for the recovery, by 
the law, of that which is one's due, or, in other words, it 
is the legal demand, according to approved proceedings, 
for the enforcement of the right.^ The successful main- 
tenance of an action, at law, depends upon the proof of 
the facts on which it is based and as this can only be done 
by witnesses, a witness is one of the main essentials to 
every action at law. 

Sec. 421. Forf alters. — 

"Imogen. . . . Lovers 

And men in dangerous bonds pray not alike; 
Though forfeiters you cast in prison, yet 
You clasp young Cupid's tables."- 

By the Statute Merchant, of England,^ debtors were 
required to enter into bond, before the mayor of London, 
or the chief warden of other cities or towns, and the lands 
of the debtor were conveyed to the creditor, until out of 
the rents and profits his debt was paid and satisfied.* If 
the debtor forfeited his bond, he was liable to be thrown 
in jail, until the penalty was discharged,^ hence he would 
pray to be relieved of the bond, but the lover would pray 
that the bonds of love might hold him forever. 

> Coke's Litt. 285. 

In A Lover's Complaint, the "fickle maid" on perusal of her let- 
ters, cried: 

"O false blood, thou register of lies. 
What unapproved witness dost thou bear: 
Ink would have seem'd more black and damned here." 

(52, 54.) 
' Cymbeline, Act III, Scene II. 
•13 Edw. I, c. 1. 

* 2 Bl. Comm. 160; Cruise, Dig. tit. 14, sec. 7. 
' Bacon, Abr. 

The lines just preceding those quoted above refer to the formula 
of sealing such bonds as were exacted of debtors, by creditors, for 
while sealing was required, signature was not essential to the 
validity of such obligations. Rolfe's Cymbeline, p. 214, notes. 



440 THE LAW IN SHAKESPEARE. 

Sec. 422. Frankleyn. — 

''Imogen. Go bid my woman feign a sickness, say 

She'll home to her father; and provide me presently 
A riding-suit, no costlier that would fit 
A franklin's housewife."^ 

A "frankleyn," at English common law, was a free- 
man ; a freeholder, or what is equivalent to-day, with a 
gentleman.^ 

Imogen did not want to be dressed like a princess or 
attired so lowly as to cause adverse comment, but arrayed 
in a riding-habit such as would befit the wife of a gentle- 
man, or land-owner. 

Sec. 423. Debtor overpassing bound. — 

"Gui. ... A prison for a debtor, that not dares, 
To stride a limit."^ 

By the English statute of Merchants, it was enacted 
that a creditor, if his debt was not paid, when due, might 
bring the debtor before the Mayor of London, or the 
Chief Warden of any other town, in the Kingdom, and 
cause him to make due acknowledgment of his debt and 
if it was not paid, when due, according to this acknowl- 
edgment, the creditor could have the debtor, on its pro- 
duction, committed to the Tower, until the debt was paid.* 
As to all such prisoners for debt, there were certain boun- 
daries within which they were required to remain, and if 
the debtor went beyond these boundaries, it was equivalent 
to an unlawful escape and he was dealt with accordingly.^ 

lachimo, speaking of his false enjoyment of Imogen, is made to 
say: ". . . . he could not but think her bond of chastity 
quite crack'd, I having ta'en the forfeit." (Act V, Scene V.) 

* Cymbeline, Act III, Scene III. 

' Bouvier's Law Dictionary; Cowel. 

' Cymbeline, Act III, Scene III. 

*II Bell's Com. (Shaw's Ed.), p. 1067. 

^Ante idem. 3 Bl. Comm. 290. 



THE LAW IN SHAKESPEARE. 441 

Sec. 424. Demesne Lands. — 

"Bel. . . . this twenty years, 

This rock, and these demesnes, have been my world."^ 

Demesne originally signified that portion of the lands of 
a manor which the lord reserved for his own use and occu- 
pation. In this respect demesne lands differed from lands 
granted or subfeued to the vassals for their services. So 
long as the doctrine of sub-infeudation existed, demesne 
lands were held by a distinct and separate right. But 
by the statute Quia Emptores, (18 Edw. I) sub-infeuda- 
tion was abolished; the feofee was held to take under the 
lord paramount, and all lands became demesne. So at 
the present day, demesne lands may be regarded as all 
lands held by the owner by virtue of his possession and 
title thereto.^ 

Sec. 425. Guiderius' defense of his crime. — 

"Gui. ... The law 

Protects not us: Then why should we be tender, 
To let an arrogant piece of flesh threat us; 
Play judge, and executioner, all himself; 
For we do fear the law?"^ 

In this verse the Poet makes the speaker defy the law, 
because the law had furnished no protection for him. 
This is the reasoning of the criminal in every instance, 
and because the hand of all men is against the outlaw 
he is, likewise, against all men and the laws of man and 
refuses to take refuge under an authority that will afford 
him no protection. 

This statutes of Merchants was enacted at Acton Burnel, in 
1282. Bell's Com. supra. 

* Cymbeline, Act III, Scene III. 

* Tiedeman's Real Property (3d ed.), Chapter III. 

In his reference to Rosaline's bright eyes, in Romeo and Juliet, 
Mercutio speaks of her bodily proportions and the "demesnes 
that there adjacent lie." (Act II, Scene I.) 

^Cymbeline, Act Fv^, Scene II. 



442 THE LAW IN SHAKESPEARE. 

An equally able defense of his act in killing Cloten 
would have been the fact that his own life was threatened 
by him and he fought in the defense of his person ; and 
this would have been a defense consistent with the due 
enforcement and recognition of the law, rather than in 
defiance of the majesty of law. 

Sec. 426. Upright Justicer. — 

"Post. . . . Ay, me, most credulous fool, 
Egregious murtherer, thief, any thing 
That's due to all the villains past, in being. 
To come : — 0, give me cord, or knife, or poison, 
Some upright justicer."^ 

In old English law, a Justiciar, or Justicier, was a 
judge or justice, and was one of several persons, learned 
in the law, who sat in the aula regis, and formed a kind 
of appellate court in cases of difficulty.^ The Chief Jus- 
ticiar was a special magistrate who presided over the whole 
aula regis; he was the principal minister of state ; the 
second man in the kingdom and by virtue of his office, 
the guardian of the realm in the absence of the king.^ 

Posthumus felt such guilt of conscience that he was 
willing to meet any doom that might be accorded him 
and prayed the "upright Justicer" to sentence him, either 
to the knife, hanging, or have him poisoned, and his 
guilty conscience was so aroused that he felt it would 
be but simple justice for him to meet such an end, for 
otherwise he would not have asked this fate at the hands 
of an "upright Justicer,"" 



* Cymbeline, Act V, Scene V. 

* Baker, fol. 118; Cron. angl. 

' Shars. Bl. Comm. 37. Phillip Basset was the last to bear this 
title, during the reign of King Henry III. 

In King Lear (Act III, Scene VI and Act IV, Scene III) Lear 
refers to Edgar as "most learned justicer" and Albany is made 
to say: "This shows you are above. You justicers," etc. 



CHAPTER XXXII. 

"TITUS ANDRONICUS." 

Sec. 427. Encroachment upon Prince's right. 

428. Proof of facts apparent. 

429. Bail in Criminal Case. 

430. Invoking Justice from heaven. 

431. The Goddess of Justice abandoning the Earth. 

432. Libelling the Senate. 

433. Prosecuting for Contempt. 

434. Lawful killing not murder. 

Sec. 427. Encroachment on Prince's right. — 

^'Aar. . . . Now, by the gods, that warlike Goths 
adore. 
This petty brabble will undo us all. — 
Why, lords, — and think you not how dangerous 
It is to jut upon a prince's right ?"^ 

The Moor, in these lines, in interfering to separate the 
combatants, Chiron and Demetrius, suggests the danger- 
ous nature of their quarrel, since it involves the good 
name of the wife of a Prince. The thought convey'd is 
that the danger of violating the right of a prince, is aug- 
mented, because of the importance of the person claiming 
the right. This is not true in countries where the law is 
equally enforced as it should be, for the enforcement of 
the right should be in equal degree, whether it is the right 
of a peasant or the right of a prince. 

Sec. 428. Proof of facts apparent. — 

''Tit. High emperor, upon my feeble knee 

I beg this boon with tears not lightly shed, 
That this fell fault of my accursed sons, 
Accursed, if the fault be prov'd in them, — 

Sat. If it be proved: You see it is apparent."^ 

^ Titus Andronicus, Act II, Scene I. 
' Titus Andronicus, Act II, Scene IV. 

(443) 



444 THE LAW IN SHAKESPEARE. 

The father has about admitted the guilt of his sons, 
when he reflects that the crime has not been proved 
against them. He invokes the rule of law, which always 
requires proof of one's guilt, to overcome the presumption 
of innocence ; but the king wrecks this hope on Titus' part, 
by replying that the evidence of their guilt is apparent 
and will need no proof. In this, from a strictly legal 
standpoint, the king was in error, for if the sons of Titus 
were to be legally adjudged guilty of the offense this 
could only be done after an investigation by a judicial 
tribunal, accustomed to try such issue, on proof of their 
guilt, by competent legal evidence. So the father was 
clearly right, in requesting proof, before their adjudged 
guilt, in this instance. 

Sec. 429. Bail in criminal case. — 

"Tit. I did, my lord : yet let me be their bail : 
For by my father's reverend tomb, I vow, 
They shall be ready at your highness' will. 
To answer their suspicion with their lives."^ 

After his failure to prevail upon the king to accord his 
sons the right of a fair trial, Titus here begs that he may, 
at least, be permitted to go their "bail," until the evidence 
of their guilt shall be brought before them. Bail is here 
used as a noun, to describe the person accepted as the 
surety for the principal accused of a crime. This is a 
proper and accustomed use of the term. 

Bail, in law, is the delivering of a person accused of 
crime, to one or more persons, accepted as his sureties, 
who are personally bound for his appearance at the proper 
time, before the court, to abide the judgment of the court.'^ 
As the surety, according to the obligation assumed, in 
such cases, is personally bound to produce the person of 
the accused one, at the specified timC; unless prevented 



* Titus Andronicus, Act II, Scene IV. 
' Bouvier's Law Dictionary. 



THE LAW IN SHAKESPEARE. 445 

by sickness or other unavoidable causes, such as the death 
or legal imprisonment of the principal, the force of this 
obligation is asked to be imposed upon him, by Titus, 
when he promises that "they shall be ready, at your high- 
ness' will." 

Sec. 430. Invoking justice from heaven. — 

"Tit. And sith there is no justice in earth nor hell, 
"We will solicit heaven ; and move the gods, 
To send down justice for to wreak our wrongs."^ 

The Poet in these lines strongly presents the pathos 
of the plea of one who has failed to receive justice on the 
earth, of those who are endowed with the ability and 
upon whom the duty is placed of dispensing justice. 
Poor Titus, realizing that his plea for justice to the king 
and his court, — the only authority that could dispense 
justice to him, — would be without avail, turns to heaven, 
as the only other source from which justice could be 
realized, after his failure to receive it from the tribunals 
of man. 

Sec. 431. The Goddess of Justice abandoning the earth. — 

"Titus. Come, Marcus, come ; — kinsmen, this is the way. 
Sir boy, now let me see your archery; 
Look ye draw home enough, and 'tis there straight. — 
Terras Astraea reliquit; 
Be you rememiber'd, Marcus, she's gone, she's fled."- 

The calamities had befallen Titus so thick and fast, in 
return for his many years of upright service and loyalty 
to Rome, that he finally concluded that the Goddess of 
Justice (Astraea) had abandoned the earth, to leave mor- 
tals to suffer injustice without relief.^ According to 



* Titus Andronicus, Act IV, Scene III. 
' Titus Andronicus, Act IV, Scene III. 
' Rolfe's Titus Andronicus, p. 187, notes. 



446 THE LAW IN SHAKESPEARE. 

mythology Astraea was the last goddess to leave the earth, 
when the golden age had passed away and men hegan to 
forge weapons and perpetrate acts of Anolence. If violence 
could have driven her from the earth, then the wrongs 
inflicted upon the noble T-itus would certainly have been 
a sufficient reason for her to have withdrawn from the 
earth. 

Sec. 432. Libelling: the Senate. — 

4 

"Sat. . . What's this, but libelling against the Senate, 
And blazoning our injustice everywhere?"^ 

Libel, in law, is the statement, by a permanent visible 
sign, such as writing, or by effigy, or the like, of some- 
thing calculated to convey an imputation against a per- 
son, injurious to him, in his trade, profession, or calling, 
holding him up to contempt or ridicule, or calculated to 
injure him in the estimation of men.- Saturninus pro- 
claims the various addresses or phillipics of the Andronici, 
to be libelous matter, distributed on the streets of Rome 
and if the attacks had been upon any certain person or 
persons, they might have had this effect, but a body such 
as the Senate, would not be libelled, by such attacks, so 
the conclusion of the speaker is not, in this instance, 
in accordance with the law. 

Sec. 433. Prosecuting for contempt. — 

"Tarn. . . . rather comfort his distressed plight, 
Than prosecute the meanest or the best, 
For these contempts."^ 

To prosecute one, is to array one before the bar of jus- 
tice and proceed, according to legal rules to ascertain 
the guilt or innocence of one accused of crime.* A con- 



^ Titus Andronicus, Act IV, Scene IV. 

* Bouvier's Law Dictionary. 

"Titus Andronicus, Act IV, Scene IV, 

* Bouvier's Law Dictionary. 



THE LAW IN SHAKESPEARE. 447 

tempt is any act calculated to bring into disrepute the 
constituted legal authority of a state or country, by open 
defiance of the power of such authority.^ Contempts at 
common law were liable to prosecution and punishment." 
In making the false Tamora assume the virtue of 
mercy, in this instance — when she had it not — Shake- 
speare consistently adheres to the policy of presenting her 
in this false attitude, that he discloses elsewhere in the 
play. 

Sec. 434. Lawful killing not murder. — 

"Sat. . . . May this be borne? — as if his traitorous 
sons, 
That died by law, for murder of our brother, 
Have by my means, been butcher'd wrongfully."^ 

The king, in these lines, rightfully distinguishes be- 
tween the lawful killing of a human being, and the wrong- 
ful or illegal killing of a person, wherein lies the distinc- 
tion between murder, or manslaughter, and a legal execu- 
tion.* The essence of the crime of murder is that the 
act should be done unlawfully, i. e., not lawfully, for a 
justifiable cause, or in defense of the person.^ So if the 
killing of the sons of Titus Andronicus had been per- 
formed in pursuance of the judgment of a properly con- 
stituted court of justice, such killing would not have been 
murder and to accuse the king of having murdered them, 
in such case, would have been wrong. 



^ Ante idem. 

' IV Reeve's History Eng. Law, 205. 
^ Titus Andronicus, Act IV, Scene IV. 
* Sherwood's Cr. Law; Bishop's Cr. Law. 
"^ Ante idem. 



CHAPTER XXXIII. 

'PERICLES, PRINCE OF TYRE." 



Sec. 435. 


Incest. 


436. 


Development of criminal instinct. 


437. 


Bill of Lading. 


438. 


Poor man's right in Law. 


439. 


A litigious peace. 


440. 


Serving clients. 


441. 


Applying judgment to the Judge. 


442. 


Modesty of Justice. 



Sec. 435. Incest. — 

"Gow. . . . The king unto him took a pheere, 
Who died and left a female heir, 
So buxom, blithe, and full of face, 
As heaven had lent her all his grace; 
With whom the father liking took. 
And her to incest did provoke."^ 

Incest is the unlawful cohabitation of persons of near 
degree of relationship and the crime, in many countries, 
is a capital offense,^ as it should be. Members of society 
guilty of this unthinkable offense against humanity and 
the rules of common decency, should not be permitted to 
live and corrupt the social currents, but like the danger- 
ous beasts v/hose lives are taken for the protection of the 
civilized man, persons who commit this offense ought to 
be removed from the world that no extension of their 
corrupt practices could result. But in most of the United 
States, the offense is punishable by imprisonment in the 
penitentiary alone. ^ 



^ Pericles, Prince of Tyre, Act I, Pro. 
^ This is true in Scotland. 
* Bishop, Criminal Law. 



Helicanus, in talking with Escanes, refers to this crime of 
Antiochus as "this heinous capital offence." (Act II, Scene IV.) 

(448) 



THE LAW IN SHAKESPEARE. 449 

Sec. 436. Dsvelopment of criminal instinct. — 

"Per. . . . One sin, I know, another doth provoke; 
Murder's as near to hist, as flame to smoke. 
Poison and treason are the hands of sin, 
Ay, and the targets, to put off the shame."^ 

This reply of Pericles, to the king of Antioch, illus- 
trates a patent fact observed by the criminologist, August 
(ioll,= that Shakespeare possess'd a deep insight into the 
psychological problems of criminology. That crime has 
its growth like other traits of character, cultivated by a 
person, is now a generally recognized fact of science, in 
the study of criminal types and as the Poet, in this same 
scene, makes the chorus, in the character of Gower observe 



Pericles tells Antiochus, in correctly interpreting the riddle: 
"Per. If it be true that I interpret false. 
Then were it certain you were not so bad, 
As with foul incest to abuse your soul." (Act I, Scene I.) 

Referring to the daughter of Antiochus, Pericles, Prince of 
Tyre, tells Helicanus: 
"Per. Her face was to my eye beyond all wonder; 

The rest (hark in thine ear) as black as incest." 

(Act I, Scene II.) 

Referring to the marriage of his Mother and Uncle, Hamlet 
said: 

"O most wicked speed, to post 
With such dexterity, to incestuous sheets." 

(Act I, Scene II.) 

The Ghost, in Hamlet, refers to the latter's uncle as "that 
incestuous, that adulterous beast," and exhorts Hamlet that he 
shall not 

"Let the royal bed of Denmark be 
A couch for luxury and damned incest." (Act I, Scene III.) 
Hamlet, on soliloquizing on the guilt of his uncle, refers to 
him as in the "incestuous pleasures of his bed." 

(Act III, Scene III.) 

Hamlet addresses the King as "thou incestuous, murd'rous, 
damned Dane," after the death of his mother. (Act V, Scene II.) 

^ Pericles, Prince of Tyre, Act I, Scene I. 
^ Goll's Cr. Types, in Shakespeare, p. 27. 



450 THE LAW IN SHAKESPEARE. 

that, "by custom what they did begin, was, with long use, 
account no sin," so one sin or criminal act accomplished, 
others were more readily accomplished and thus the whole 
realm of crime was possible to the criminal who had once 
entered upon the path of crime, or, as Pericles expressed 
it, "One sin, . . . another doth provoke." 

Sec. 437. Bill of lading.— 

"Per. All leave us else ; but let your cares o'erlook 
What shipping and what lading's in our haven, 
And then return to us."^ 

A bill of lading, at the time when the term was used 
by Shakespeare, was a memorandum or contract given by 
the master of a ship to the owner, of goods to be trans- 
ported as cargo on his vessel.^ The words have acquired 
a broader signification, of late years and include any such 
contract given by a common carrier, either by water or 
land, for the transportation of goods or merchandise.^ 

Pericles, on preparing for his voyage, desired a complete 
bill of lading of the goods or property in the haven, and 
in this manner he asked for the legal evidence of the 
contract of transportation. 

Sec. 438. Poor man's right in law. — 

"2 Fish. Help, master, help ; here's a fish hangs in the 
net, like a poor man's right in the law ; 'twill hardly 
come out. Ha; bots on't, 'tis come at last, and 'tis 
turn'd to a rusty armour."* 

The words which Shakespeare puts into the mouth of 
the fisherman, in these lines, are similar to other refer- 
ences of the Poet to the "law's delays" and the difficulty 
a poor man has to free himself from the meshes of the 
law. This satire is not that of a lawyer, but of an observ- 

' Pericles, Prince of Tyre, Act I, Scene II. 
^ Bouvier's Law Dictionary. 

• Hutchinson's Carrier's (3ded.). 

* Pericles, Prince of Tyre, Act II, Scene I. 



THE LAW IN SHAKESPEARE. 451 

ing member of society, who sees the exceptional cases 
and makes of them the general rule. No lawyer would 
apply such ridicule to the proceedings of the courts where- 
by the rights of litigants are enforced, for being partly 
responsible for the proceedings in vogue and the end and 
object being the equal and free enjoyment and enforce- 
ment of the rights of all suitors, a lawyer is the last person 
to proclaim against the practices of the courts or to bring 
his profession into disrepute. But not so a poet, with 
Shakespeare's grasp upon all subjects. He would remedy 
all defects in every system and his natural sympathy 
would go out to the poor and the oppress'd. He consid- 
ered it difficult, no doubt, for a poor man, to obtain jus- 
tice and viewed the "law's delay" in his case, as a particu- 
lar hardship, when as matter of fact, his observation may 
have obtained to the exceptional cases wherein the dis- 
pensation of justice did not accord with his ideas of mercy 
or charity. 

Sec. 439. A litigious peace. — 

"Per. Most honour 'd Cleon, I must needs be gone; 
My twelve months are expir'd, and Tyrus stands 
In a litigious peace."^ 

The Prince of Tyre here places his kingdom in the atti- 
tude of a litigant who enjoys peace because of his defence 
of his right, in law. The comparison is not without merit, 
for as an individual by the defense of his rights, in law, 
gains a reputation which will bring him peace, by the 
respect which his fellows will entertain for his course, so 
a nation, by preparations for war, or by actual warfare, 
will gain a reputation which will ultimately bring peace. 

Sec. 440. Serving clients. — 

"Bated. . . . When she should do for clients her fit- 
ment, and do me the kindness of her profession, she 

^ Pericles, Prince of Tyre, Act III, Scene III. 



452 THE LAW IN SHAKESPEARE. 

has me her quirks, her reasons, her master-reasons, 
her prayers, her knees, that she would make a puritan 
of the devil, if he should cheapen a kiss of her."^ 

This satirical reference of the Bawd, wherein she com- 
pares one of her trade to a lawyer, practicing his profes- 
sion, is not unlike the practices of many of the profession 
of the law, if the facts were known. While the per cent 
that can, legitimately, be compared to such a foul pro- 
fession, or trade, are few, still there are by far too many 
who, like the bawd, serve any who come, with a fee, 
which may tempt the commission of offenses not less 
odious than the crime of adultery. 

Sec. 441. Applying judgment to the judge. — 

'.'Mar. If ye were born to honour, show it now ; 
If put upon you, make the judgment good 
That thought you worthy of it."- 

If this reflection, by the incumbent of the judgment- 
seat, were indulged in generally, it would make the judg- 
ments pronounced more equitable, no doubt. It is but 
the application of the golden rule, nothing less, i. e., "do 
unto others as you would have others do unto you," and 
this is a very good rule of law, as it is of one's private 
conduct. 

Sec. 442. Modesty of justice. — 

"Per. . . . Falseness cannot come from thee, for thou 
look'st 
Modest as justice, and thou seem'st a palace 
For the crown'd truth to dwell in."^ 

These words of Pericles, to his daughter, in the simile 
used, show the exalted ideal of the Poet, in regard to 
justice, a virtue that he almost deified, so broad was his 

* Pericles, Prince of Tyre, Act IV, Scene V. 

* Pericles, Prince of Tyre, Act IV, Scene VI. 
' Pericles, Prince of Tyre, Act V, Scene I. 



THE LAW IN SHAKESPEARE. 453 

sympathy for his fellowman and his poetic justness. Jus- 
tice does not go hand in hand with ostentation or loud- 
ness; but this virtue is usually found with modesty and 
purity. Marina, to her father, seemed ''a palace for the 
crown'd truth to dwell in" and as the Poet's fertile mind 
observed, this would likewise be a fitting habitation for 
the twin virtue, justice. 



CHAPTER XXXIV. 





"KING LEAR." 


Sec. 443. 


Divesting property. 


444. 


Entailment of estate. 


445. 


Reservation, in grant. 


446. 


Parricide. 


447. 


Identifying criminals by pictures. 


448. 


An "action-taking" knave. 


449. 


Crimes unwhipped by Justice. 


450. 


Summoners. 


451. 


"Whipped from tithing to tithing." 


452. 


Imaginary trial of Goneril. 


453. 


Equal rank in Trial by Battle. 



Sec. 443. Divesting property. 

"Lear. . . . Tell me, my daughters, 

(Since now we will divest us both of rule, 

Interest of territory, cares of state,) 

Which of you, shall we say, doth love us most?"^ 

To divest one of property, of the kind referred to by the 
King, is to dispossess one and to convey or vest the title in 
another.* Divestiture is characteristic of the term real 
property, or of the title to an office,^ for it is the taking 
away of the title, so the King speaks of his act of divest- 
ing himself of "rule, interest of territory and cares of 
state," meaning that he will not only relinquish the title 
to his lands, but to his office, as king, as well, and the 
cares accompanying it. 



' King Lear, Act I, Scene I. 
= Bouvier's Law Dictionary. 
Tiedeman's R. P. (3d ed.). 

(454) 



3 



;THE law in SHAKESPEARE, 455 

Sec. 444. Entailment of estate. — 

"Lear. . . . We make thee lady: To thine and 
Alban's issue 
Be this perpetual. — What says our second daughter, 
Our dearest Regan, wife to Cornwall? Speak. 

To thee and thine, hereditary ever, 
Remain this ample third of our fair kingdom ; 
No less in space, validity and pleasure, 
Than that confirm'd on Goneril.''^ 

In conveying and confirming one-third of his kingdom 
upon Goneril and her husband and their issue, as the 
Poet makes Lear do, in these lines, he practically entailed 
the third of his kingdom to his daughter and the heirs 
of her body by Albany.^ 

An entailment arose at common law, whenever the 
words of the conveyance indicated an intent on the part 
of the grantor that the legal course of succession of the 
land was cut off and the title was to vest in the grantee 
and certain of his or her heirs, as distinguished from all 
of the grantee's heirs, as, in this instance, where the 
grant was to one and the heirs of her body, or issue, by 
a certain husband. This was an estate tail, known as a 
special entail. A grant to a man "and the heirs of his 
body," was a general entail, as distinguished from a grant 
"to a man and the heirs of his body, by his wife, Joan."^ 

And the limitation, in the grant of the third of the 
kingdom to Regan, "in space, validity and pleasure," like 
that "confirm'd on Goneril," amounted to a creation, in 
Regan, of a fee-simple conditional, or an estate tail, at 
common law. 



' King Lear, Act I, Scene I. 

-Tiedeman's R. P. (3d ed.). For legislation concerning estates 
tail, see II Reeve's History Eng. Law, 459. In the grant to his 
first daughter, the language used by Shakespeare is not unlike 
the habendum of a comman law conveyance. And this is fol- 
lowed, it will be noted, further on, by the confirmation, "Which, 
to confirm, this coronet part between you." 

' TI Reeve's History, supra. 



456 THE LAW IN SHAKESPEARE. 

Sec. 445. Reservation, in grant. — 

"Lear. . . . Ourself, by monthly course, 
With reservation of a hundred knights. 
By you to be sustained, shall our abode 
Make with you, by due turns. "^ 

A reservation, in law, is a term used to denote that part 
of an estate which is retained by the grantor, in the grant 
of a portion of his estate to another.- As the term land 
is made up of different elements, going to compose the 
legal entity, it is sometimes granted, with a reservation 
of the minerals in the soil.^ So, in this instance, after 
giving his kingdom to his daughters, the king reserved, 
or retained to himself, the right to a hundred knights, 
to be by his grantees sustained, and the right to make 
his home with his daughters, by turn. 

Sec. 446. Parricide. — 

"Edm. . . . But that I told him, the revenging gods 
•'Gainst parricides did all their thunders bend; 
Spoke, wdth how manifold and strong a bond 
The child was bound to the father."* 

By the Roman law, every one who murdered a near 
relative was held guilty of parricide, but by the English 
law, the term is usually applied to one who murdered his 
fatherj or the person standing in the relation of a parent 
to the murderer.^ By the English law, the punishment 

* King Lear, Act I, Scene I. 

=■ Tiedeman's R. P. (3d ed.). 

^White's Mines and Mining Remedies, Chap. VIII. 

When told by his daughter that his followers could not be main- 
tained in a greater number than twenty-five, Lear tells her that 
"I gave you all — Made you my guardians, my depositaries; But 
kept a reservation to be follow'd with such a number." (Act II, 
Scene IV.) 

^King Lear, Act II, Scene I. 

= Bishop's Criminal Law; Russell, Crimes; Sherwood's Cr. Law. 



THE LAW IN SHAKESPEARE. 457 

of parricides was the same as that of any other murderer,^ 
but by the Roman law, a parricide ATas sewed in a leather 
sack with a live cock, a viper, a dog, and an ape, and 
cast into the sea to take his chances with these com- 
panions.- Edmund uses the term, as it was limited by 
the English law, to the murderer of the parent. 

Sec. 447. Identifying Criminals by pictures. — 

"Gloster. . . . Besides, his picture 

I will send far and near, that all the kingdom 
May have due note of him ; and of my land, 
Loyal and natural boy, I'll work the means 
To make thee capable."^ 

While photography had not reached a state of perfec- 
tion that would enable the taking of pictures, in the man- 
ner that obtains to-day,'* it was customary, during the 
Poet's time, to send word pictures, or descriptions of crim- 
inals abroad for the identification of those who violated 
the law,^ and pictures by wood engravings and steel plates 
had existed since the middle of the fifteenth century.*^ 

It is not improbable, therefore, that Gloster had such 
"picture" of his own son, that he could send around, and 
the reference is not to photographs as has been under- 
stood.' 



^ Bouvier's Law Dictionary. 

= See Gibbon, Niebuhr, Arnold. 

^ King Lear, Act II, Scene I. 

^The alchemists of the 16th century made the important dis- 
covery that horn silver would blacken on exposure to light, and 
this was the most advanced step in photography they made. 
Scheele, a Swedish chemist, found that it was blackened quickest 
by the violet ray of a solar spectrum, in 1777, and twentj'-five 
years later Ritter, of Jena, demonstrated the existence of chem- 
ically active non-visible rays, beyond the violet ray of the spec- 
trum. Daguerre produced the first dauguerratype, in 1825. 

^'See Rolfe's King Lear, p. 215, notes. 

'Ottley's Origin and History of Engraving. 

'Lord Campbell seems to have made this mistake. Rolfe's 
King Lear, p. 21D, notes, swprc. 



458 THE LAW IN SHAKESPEARE, 

Sec. 448. An "action-taking" knave. — 

"Kent. A knave; a rascal; an eater of broken meats; a 
base, proud, shallow, beggarly, three-suited, hundred- 
pound, filthy, worsted-stocking knave; a lily-livered, 
action-taking, whoreson, glass-glazing, super-service- 
able, finical rogue. "^ 

Kent could hardly have used worse epithets toward Os- 
wald than this tirade of abuse. A "lily-livered, action- 
taking, . . . glass-gazing, . . . rogue," is one who 
was a coward, with a white liver. One who would resent 
an affront by filing a suit at law, rather than to fight it 
out, like a man,- and he intended to tell him that he was 
such an effeminate creature that he would stand and gaze 
at himself, for hours in the looking glass. 

Sec. 449. Crimes unwhipped by justice. — 

"Lear. Tremble, thou wretch. 

That hast within thee undivulged crimes, 
Unwhipp'd of justice: Hide thee, thou bloody hand; 
Thou perjur'd, and thou simular of virtue. 
That art incestuous."^ 

This is one of the most stirring scenes in this great 
tragedy and the comparison, by the mad King, of the 
vengeance of heaven, as evidenced by the storm and thun- 
der, to the punishment of the law, for the crimes of the 
guilty, is, indeed, realistic. The thought expressed, is, 
that if there are crimes which have gone unpunished by 
the laws of man, they cannot escape the vengeance of 
God, but the guilty are sure to suffer at his hands. The 
mad king feels no concern for himself, but at such a time 
as this, the wretch who has committed undivulged crimes, 
unwhipped of justice; the perjured, counterfeit man of 

' King Lear, Act II, Scene II. 

- This is Doctor Rolfe's explanation of this term. Rolfe's King 
Lear, p. 218, notes. 
'King Lear. Act III. Scene IL 



THE LAW IN SHAKESPEARE. 459 

virtue, who is really incestuous, had better beware the 
vengeance from on high. 

The object of justice is the punishment of crimes, as 
well as the enforcement of rights, so the interpretation 
of the mad king is not amiss, in attributing to justice 
the punishment, akin to whipping, for the crimes it under- 
takes to punish. 

Sec. 450. Summoners. — 

"Lear. . . . Close pent-up guilts, 

Rive your concealing continents and cry 
These dreadful summoners grace. I am a man 
. More sinn'd against than sinning."^ 

In these lines, the mad King warns those who have 
violated the mandates of the great Judge from on High. 
The perjured, incestuous, "simulator of virtues," who have 
practiced on men's lives, had best beware ; their guilty con- 
sciences must be put down and they ought to beg mercy 
from the heavens "summoners." A summoner is an offi- 
cer authorized to serve process, such as "summoning of- 
fenders before a tribunal."^ 

Sec. 451. "Whipped from tithing to tithing."— 

"Edgar. Poor Tom, that eats the swimming frog, the 
toad, the tadpole, the wall-newt and the water; that 
in the fury of his heart, when the foul fiend rages, 
eats cow-dung for sallets ; swallows the old rat and the 
ditch-dog; drinks the green mantle of the standing 
pool; who is whipped from tithing to tithing, and 
stocked, punished and imprisoned."^ 

Disguised as poor "Mad Tom," Edgar would come with- 
in the description of persons defined as "vagrants, or 
vagabonds," by the statute 39 Elizabeth, c. 4,* for by this 

^King Lear, Act III, Scene II. 

-Rolfe's King Lear, p. 238, notes. 

'King Lear, Act III, Scene IV. 

*This statute repealed 18 Elizabeth, c. 3, and 35 Eliz., c. 5. 



460 THE LAW IN SHAKESPEARE. 

act all ''persons delivered out of goal, who beg for their 
fees," and "all who shall wander about begging" are de- 
fined as "rogues, vagabonds and sturdy beggars" and such, 
when found by any justice, constable, headborough or 
tithingman, "be stripped naked from the middle upwards, 
and be openly whipped till he is bloody, and shall then 
be sent from parish to parish, by the officers of the same, 
till he come to the parish where he was born,"^ etc. And 
during the reigns of Henry VII,- Edward VI^ and Henry 
VIII,* similar acts were passed against vagrants and beg- 
gars, by which similar punishment by whipping and the 
stocks was to be assessed against these offenders.^ 

Sec. 452. Imaginary trial of Goneril. — 

''Lear. It shall be done, I will arraign them straight: — 
Come, sit thou here, most learned justicer: — (To Ed- 
gar.) 

Thou, sapient sir, sit here. (To the Fool) — Now, 
you she foxes: — 
Edg. Look, where he stands and glares: — 
Wantest thou eyes at trial, madam? 



Lear. I'll see their trial first: — Bring in the evidence. — 
Thou robed man of justice, take thy place; (To 

Edgar) 
And thou, his yoke-fellow of equity, (To the Fool) 
Bench by his side: — You are of the commission, (To 

Kent)' 
Sit you too. 

Edg. Let us deal justly. . . . 

Lear. Arraign her first; 'tis Goneril. I here take my 
oath before this honorable assembly, she kicked the 
poor king, her father."® 



'V Reeve's History Eng. Law, p. 209. 

"11 Henry VII, c. 2, and 19 Henry VII, c, 12. 

M Edw. VI, c. 16, 5 and 6 Edw. VI, c. 2. 

*22 Henry III, c. 12. 

®V Reeve's History Eng. Law, p. 210. 

*King Lear, Act III, Scene VI. 



THE LAW IN SHAKESPEARE. 461 

It is notable, in these lines, that the Poet does not forget 
to have the mad king insist upon an orderly proceeding 
in the imaginary trial of his daughter, Goneril. At com- 
mon law, no one charged with a crime could be put upon 
trial, without being first arraigned, and asked whether he 
or she was guilty or not guilty of the charge.^ The mad 
king insists upon the adherence to this legal preliminary 
at the trial. As justice is symbolized by the ''Blind Ey'd 
Goddess," Edgar intimates that the accused may not want 
to be tried by her, but as her guilt is great, she may 
require eyes at her trial to see her innocence. At com- 
mon law, the occupant of the judgment seat was called 
a "justice" and he was said to occupy the Bench;- the 
Chancellor, or judge who dispensed equity, on the equity 
side of the court, could be likened to a "yoke-fellow" in 
the team of jurists, working to dispense justice, and when 
two or more judges sat in judgment they were called a 
Commission, so the reference to Kent, as being "of the 
Commission," is not improper, but shows the discrimina- 
tion, in legal matters, of the mad king. After the ar- 
raignment, it was always essential to establish the guilt 
of the accused, by competent evidence, as guilt was never 
presumed, but all persons were presumed innocent of 
crime, until proven guilty, so the mad king after the 
arraignment, calls for the evidence and deposes and gives 
evidence, under oath, of the offense he thinks his daughter 
guilty of. 

^Bishop's Cr. Proc, Vol. I, Chap. Arraignment; Sherwood's Cr. 
Law. 

-' Bouvier's Law Dictionary. 

To some, it might seem beyond belief, that the Poet would make 
the mad king follow so truly, the regular forms of law, in this 
trial scene. But to the author of these Commentaries, it is not 
unreal, for he once witnessed an insane lawyer, defend himself 
before a Commission to inquire into his sanity, with all the cun- 
ning of the sanest jurist, familiar with every detail of the pro- 
ceeding. 



462 THE LAW IN SHAKESPEARE. 

This whole imaginary trial is the due and regular pro- 
ceeding, outlined by one familiar with the "administration 
of the criminal law of England. 

Sec. 453. Equal rank, in trial by battle. — 

"Gon. This is mere practice, Gloster; 

By the law^ of arms, thou wast not bound to answer 
An unknown opposite ; thou art not vanquish'd, 
But cozen'd and beguil'd."^ 

Goneril here advises her lover of the law of trial by 
battle, for by the law of arms, through which this bar- 
barous custom was carried out, if the adversary was not of 
equal rank, or known to be of equal rank, with the person 
challenged, the latter need not fight, and, if he did fight, 
in case of his defeat, he was not adjudged guilty, as he 
would have been had he fought with one of equal rank.- 



* King Lear, Act V, Scene III. 

^Reeve's History Eng. Law, Vol. I, p. 393; Vol. Ill, p. 329; Vol. 
IV, p. 58. 



CHAPTER XXXV. 

"ROMEO AND JULIET." 

Sec. 454. Bond to Keep the Peace. 

455. Wife's legal status. 

456. Sale of Life Tenure. 

457. Amercement by fine. 

458. Murder to kill murderer illegally. 

459. Tybalt's death murder at Romeo's hands. 

460. No slander to speak the truth. 

461. Label appended to deed. 

462. Sale of poison contrary to Italian Law. 

463. Purging impeachment. 

Sec. 454. Bond to keep the peace. — 

"Cap. And Montague is bound as well as I, 

In penalty alike ; and 'tis not hard, I think, 
For man as old as we to keep the peace. "^ 

Offenses against the public peace are those offenses which 
consist either in an actual breach of the peace, or conduct 
which leads directly to an open breach.- Such offenses 
may be classified under the heads of unlawful assemblies, 
riots, affrays, challenging and fighting and duels, and 
other similar misdemeanors. 

The offense committed by the servants of these rival 
houses of Capulet and Montague, was properly an affray, 
which is a public assault, or one committed in the pres- 
ence of third parties. A duel was such an offense and 
because of the likelihood of others present joining in the 
affray, all present were held to be principal offenders, at 
common law, and the principals were liable to arrest and 
subject to be bound over to keep the peace. ^ 

' Romeo and .Juliet, Act I, Scene II. 

= Cooley, Torts, 348. 

* III Reeve's History Eng. Law, p. 202. 

(463) 



464 THE LAW IN SHAKESPEARE. 

The Prince had commanded the peace, in the street 
brawl, in the preceding scene, when he told Capulet and 
Montague: "If ever you disturb our streets again, your 
lives shall pay the forfeit of the peace," And they w^re 
commanded to appear before him at "old Free-town, our 
common judgment-place," to know his further pleasure. 
At this hearing, the two enemies had been bound over to 
keep the peace, from these lines of Capulet as this was 
a familiar proceeding, in vogue in all such causes.^ 

Sec. 455. Wife's legal status. — 

"Fri. Come, come with me, and we will make short work ; 
For, by your leaves, you shall not stay alone. 
Till holy church incorporate two in one."- 

The Friar here clearly referred to the legal status of the 
wife, after celebration of the holy rites of the common 
law civil contract of marriage. At common law, after 
marriage, the wife had no separate legal existence but her 
legal entity w^as merged, so to speak, into that of her hus- 
band.^ By the fiat of the law the two became one, by 
marriage, and the otherwise separate and distinct legal 
existence of the femme sole, was abolished and the two 
became "incorporate" into one.* 

^Ever since the reign of Edward I, it had been the office of 
the king's justices, of inferior judges, ministers of justice, sher- 
iffs and the like officials, to keep the peace of the kingdom. "The 
manner in which these officers might exercise their authority was, 
by committing to custody all those whom they saw actually break- 
ing the peace; or, as said above, they might admit them to ball, 
or oblige them to give sureties for keeping the peace." Ill Reeve's 
History Eng. Law, p. 202. 

- Romeo and Juliet, Act II, Scene V. 

^ Bishop, Mar. & Div., Chap. II. 

^Rogers, Dom. Rel. 

In Venus and Adonis, it is said: "Her arms do lend his neck 
a sweet embrace; Incorporate then they seem; face grows to 
face." (539, 540.) 



THE LAW IN SHAKESPEARE. 465 

Sec. 456. Sale of life tenure. — 

"Ben. An' I were so apt to quarrel as thou art, any man 
should buy the fee-simple of my life, for an hour and 
a quarter. 

Mer. The fee-simple. O simple."^ 

A fee-simple estate is an estate of inheritance, passing 
directlj'' to the heirs general of the owner — as distinguished 
from a base or qualified fee which goes to special heirs 
of his body — if he dies intestate, subject to no restrictions 
or qualifications and it is the highest estate known to the 
law of land tenures.- A fee-simple estate may either be 
created by deed, or acquired by purchase,^ as elsewhere 
seen.* 

Benvolio means to say to Mercutio, that if he were as 
quarrelsome as the latter, his life would be in such danger, 
that he would sell the whole tenure of his life for an hour 
and a quarter. Mercutio, who has more faith in his own 
prowess, ridicules the idea of selling the fee-simple of his 
life for such a small return and pronounces such a bar- 
gain ''simple." 

Sec. 457. Amercement by fine. — 

"Prin. ... I have an interest in your hates' pro- 
ceeding, 
My blood for your rude brawls doth lie a bleeding; 
But I'll amerce you with so strong a fine. 
That you shall all repent the loss of mine."^ 

To amerce one is to assess a pecuniary punishment at 
the will of the king or lord paramount, in some arbitrary 
sum, for the commission of some offense, for which the 
penalty is assessed.*' The difference between a fine and an 

' Romeo and Juliet, Act III, Scene I. 

= Tiedeman. R. P., Chap. Ill (3d. ed.). 

''Ante idem. 

*See Chapter III. 

'Romeo and Juliet, Act III, Scene I. 

* Bouvier's Law Dictionary. 



466 THE LAW IN SHAKESPEARE. 

amercement, is that the former is fixed, within certam 
limits, by the law, while the latter may be assessed arbi- 
trarily, at the will of the chief executive. 

The Prince, in these lines, advises the combatants that 
he is interested in the affrays, whereby the State loses its 
citizenship, for in killing the citizens, the State and indi- 
rectly the Prince, himself, loses his life blood, in the 
death of his citizens. This is the basis of the exercise of 
police power, in all civilizations, and the Poet struck at 
the very element of the criminal law, in the language 
used by the Prince. 

Sec. 458. Murder to kill murderer illegally. — 

"Mon. Not Romeo, prince, he was Mercutio's friend; 

His fault concludes but, what the law should end 

The life of Tybalt. 
Prin. And for that offense, 

Immediately we do exile him, hence. "^ 

The argument of Romeo's father is based upon his affec- 
tion for his son, not upon any principle of law. No one 
has the right to take the law into his own hands and it is 
none the less murder, that the deceased was himself a mur- 
derer, unless he was executed, according to law.^ Tybalt 
was a murderer in killing Mercutio, for death by duelling, 
was murder, at common law,^ but this did not give Romeo 
a right to kill him, for he was entitled to a trial for the 
offense and could only be legally killed, after a legal con- 
viction for the crime. The prince therefore decided ac- 
cording to law, in refusing to recognize this defense for 
Romeo. 

Sec. 459. Tybalt's death murder at Romeo's hands. 

"Fri O deadly sin: rude unthankfulness : 

Thy fault our law calls death ; but the kind prince, 

* Romeo and Juliet, Act III, Scene I. 

• Bishop's Criminal Law. 

^ Sherwood's Criminal Law. 



THE LAW IN SHAKESPEARE. 467 

Taking thy part, hath rush'd aside the law, 

And turn'd that black word death to banishment."^ 

The Friar was right. Taking human life, by duelling, 
at common law, was murder and murder was punishable 
by death.- So Romeo was guilty of murder or man- 
slaughter, at the least, in killing Tybalt by duelling and 
was liable to be punished by death, for the offense. It 
was an act of clemency or pardon, on the part of the 
Prince, to spare his life and to exile him, instead. And 
in doing so, he "rush'd aside the law" and prevented the 
lawful sentence of death, by assessing the milder punish- 
ment of banishment. 

Sec. 460. No slander to speak the truth. — 

^'Jul. That is no slander, sir, that is a truth ; 
And what I spake, I spake it to my face."" 

Juliet's defense to the charge of slander that Paris pre- 
fers against her is two-fold, first that she spoke the truth 
and not a falsehood, and, second, that she did not publish 
the words, but uttered them to his face. Both of these 
replies were good legal defenses to the charge of slander, 
for the truth of the assertion is always a defense and if 
the words were spoken to the alleged injured person and 
not about him, to a third person there is no publication of 
the slander, hencC; no slander, in law.* 

Sec. 461. Label appended to deed. — 

"Jul. . . . And ere this hand, by thee to Rome 
seal'd, 
Shall be the label to another deed, 

^ Romeo and Juliet, Act III, Scene III. 
^ Bishop's Criminal Law. 

The good Friar further said: "The law, that threatens death, 
becomes thy friend, And turns it to exile." (Act III, Scene III.) 

^ Romeo and Juliet, Act IV, Scene I. 
* Cooley's Torts, 193. 



468 THE LAW IN SHAKESPEARE. 

Or my true heart with treacherous revolt 
Turn to another, this shall slay them both."^ 

In the time of Shakespeare, the act of sealing written 
instruments, such as deeds of conveyance, was given much 
more prominence than it is to-day, for while signing was 
dispensed with, as a legal prerequisite of such contracts, it 
was essential that all such written instruments should be 
sealed. For this purpose soft wax was used and an im- 
pression was made, upon a separate* ribbon, or "label," 
which was attached to the deed, leaving it appendant, as 
a label. ^ It is not probable, however, that Juliet had ever 
executed such a deed and why she should use these legal 
terms, is of course a mystery, except that it shows the Poet 
was himself familiar with them. 

Sec. 462. Sale of poison contrary to Italian law. — 

"Ap. Such mortal drugs I have; but Mantua's law 
Is death, to any he that utters them."- 

Long prior to the period of the Poet's time, the prev- 
alency of death by poisoning had led to the strictest laws 
preventing the sale of drugs that would take human life, 
in cities and countries subject to the Roman law.* During 
the reign of Henry VIII, in England, the crime became so 
odious that a statute was passed making murder by poison- 
ing punishable by boiling the murderer in lead and oil.^ 
By the 14 and 15 Victoria, the sale of arsenic and other 
poisons is regulated and forbidden, except in accordance 
with the law, under strict penalties." 

' Romeo and Juliet, Act IV, Scene I. 

''The Duke of York discovered the contracts In his sons pos- 
session, by the seals, or labels, protruding from his pocket, (Rich- 
ard II, Act V, Scene II) and in Cymbeline the word label was 
used for the deed itself. (Act V, Scene V.) 

^ Romeo and Juliet, Act V, Scene I. 

* Heineccii, Hi.st. Jur. Civ. ; Niebuhr, Roman Hist. ; Hook's Hist. 
Rome. 

= IV Reeve's Hist. Eng. Law, 427. 

' Bishop's Criminal Law ; Bishop's Stat. Crimes. 



THE LAW IN SHAKESPEARE. 469 

Sec. 463. Purging impeachment. — 

"Fri. . . . And here I stand, both to impeach and 
purge 
Myself condemn'd and myself accus'd."^ 

To impeach, is to accuse or charge one with a crime or 
misdemeanor, as well as to exhibit charges of maladminis- 
tration against a public officer, before a competent trib- 
unal.- To purge, is to clear from guilt or moral defile- 
ment, by establishing one's innocence of the charge of 
crime.^ In other words, the Friar, while admitting the 
facts which will show his connection with the return of 
Romeo, and his presence at the tomb, will disclose the 
truth sufficient to show that he had no criminal connec- 
tion with the affair and thus free himself from any charge 
of wrongdoing. 

Romeo admitted that he was asking the Apotliecary to violate 
the law, but urged him to do so, by the following reasoning: 
"The world is not thy friend, nor the world's law: 
The world affords no law, to make thee rich; 
Then be not poor, but break it and take this." 

(Act V, Scene I.) 

Speaking of the laws against poisoning in Bui'ope, Doctor Rolfe, 
in Romeo and Juliet, said: "Secret poisoning became so common 
in Europe, in the 16th century, that laws against the sale of 
poisons were made in Spain, Portugal, Italy and other countries." 
Rolfe's Romeo and Juliet, p. 264, notes. 

'Romeo and Juliet, Act V, Scene III. 
- Bouvier's Law Dictionary. 
■' Bouvier's Law Dictionary. 



CHAPTER XXXVI. 

"HAMLET, PRINCE OP DENMARK." 

Sec. 464. Law and Heraldry. 

465. Trespass vi et armis. 

466. Forgeries. 

467. Appurtenances. 

468. Detecting crime. 

469. Quietus. 

470. Fratricide. 

471. No corrupted Justice above— Evidence by interested 

party. 

472. Counsellor. 

473. Pleas in Abatement. 

474. "Crowners-quest Law." 

475. Hamlet's legal comments on the skull. 

476. Hamlet's survivorship and disposal of the Crown. 

Sec. 464. Law and Heraldry. — 

"Her. . . . our valiant Hamlet 

(For so this side of our known world esteem'd him,) 

Did slay this Fortinbras, who, by a seal'd compact, 

Well ratified by law and heraldry, 

Did forfeit, with his life, all those his lands, 

Which he stood seiz'd of, to the conqueror: 

Against the which, a moiety competent 

Was gaged by our king; which had return'd 

To the inheritance of Fortinbras, 

Had he been vanquisher ; as, by the same co-mart. 

And carriage of the article design'd. 

His fell to Hamlet. "1 

The Poet never forgets to mention the legal prerequisite 
to such legal documents as this ' 'compact," that it con- 
tained a vseal, for, in his day, all such legal instruments 
were required to be sealed, and much greater importance 
was attached, in law, to the requisite of sealing, than at 
the present day.^ 

' Hamlet, Prince of Denmark, Act I, Scene I. 
"11 Reeve's History English Law, 54. 

(470) 



THE LAW IN SHAKESPEARE. 471 

By the terms "law and heraldry'' it was intended to 
express the thought that the contract complied with the 
legal requirements and was in form and substance a legal 
document, and since courts of chivalry took cognizance of 
undertakings touching deeds of arms and warlike enter- 
prises outside the realm, that this agreement also had the 
binding force of honour given it by heraldry. 

By the terms of the '^compact," if Fortinbras should be 
vanquished, his lands were to go to Hamlet and, on the 
other hand, in case of Hamlets' fall, his lands were to go 
to Fortinbras. "Co-mart" means joint agreement or bar- 
gain, by the terms of which the loser was to also lose 
his lands. 

Sec. 465. Trespass vi et armis. — 

"Hor. . , . young Fortinbras, 

Of unimproved mettle hot and full, 

Hath, in the skirts of Norway, here and there, 

Shark'd up a list of landless resolutes, 

For food and diet, to some enterprise 

That hath a stomach in't: which is no other 

(As it doth well appear unto our state,) 

But to recover of us by strong hand, 

And terms compulsatory, those 'foresaid lands 

So by his father lost."^ 

In legal contemplation, the land of every man is sur- 
rounded by a close, or boundary, and even in the absence 
of a physical boundary, such as a fence or hedge, there 
exists this invisible ideal boundary, which effectually sep- 
arates the land of the owner from all the land of his 
neighbors. Any unwarranted breaking through this close, 
at common law, gave the remedy by an action quare 
clausum fregit, and if the entry was accomplished by 
force and violence, it gave rise to an action vi et armis.- 
Even if a man had the legal title to land, he must not 



' Hamlet, Prince of Denmark, Act I, Scene I. 
* Cooley, Torts. 



472 THE LAW IN SHAKESPEARE. 

attempt to recover possession by force and arms, but must 
resort to a legal action for the possession and if he did, 
he was liable to the action of trespass vi et armis.^ 

Horatio here conveys the idea that Fortinbras, in com- 
ing for his lands with force and violence is a trespasser, 
for although his father may have lost his title wrongfully, 
he should not have taken the law into his own hands; 
but this reasoning, while applicable to the property rights 
of an individual, could not be applied to the land of a king- 
dom and force and violence is yet the only method known 
for the enforcement of a right, which a nation refuses to 
recognize, since no forum exists for the enforcement of 
such claims in any other manner. 

Sec, 466. Forgeries, — 

''Pol. . . . and there put on him, 

What forgeries you please; marry, none so rank 
As may dishonour him."- 

Forgery, at common law, was the fraudulent making 
or altering of a writing or seal, to the prejudice of another's 
rights.'* It is an essential of the crime that the altera- 
tion or counterfeit was made with the intent to defraud, 
but it is not essential that an actual defrauding should 
result.* 

Polonius, here, in his instruction regarding the detec- 
tion of his son in any small offenses, authorizes his accu- 
sation of "what forgeries you please," but in qualifying 
this phrase, by the subsequent advice that he should not 
be accused of anything which could dishonour him, it is 
apparent that the term is used in other than its strict legal 
interpretation, and rather in the sense of fabrication, or 



^As far back as the reign of Edward I, in England, actions 
were filed for trespass vi et armis. against those wrongfully enter- 
ing upon land of another. Ill Reeve's History English Law, 57, 61. 

= Hamlet, Prince of Denmark, Act II, Scene I. 

" Bouvier's Law Dictionary. 

* Bishop's Criminal Law. Forgery. 



THE LAW IN SHAKESPEARE.' 473 

license, since to accuse one of forgery would be to charge 
him ^yith an offense that would work his dishonor directly. 

Sec. 467. Appurtenances. — 

"Ram. . . . Come then, the appurtenance of wel- 
come is fashion and ceremony."^ 

In the law of real property, appurtenances are those 
things, belonging to another thing as principal, which 
pass as incidents of the principal thing, as in the convey- 
ance of a liouse and tract of land, a right of way would 
pass, as a necessary incident of the grant. - 

Welcome, being the principal thing expressed, in the 
speech made by Hamlet, he lists fashion and ceremony, 
as mere incidents, accompanying the welcome, as matter 
of right. 

Sec. 468. Detecting crime. — 

"Ham. ... I have heard. 

That guilty creatures, sitting at a play, 
Have, by the very cunning of the scene, 
Been struck so to the soul, that presently 
They have proclaim'd their malefactions.-' 

Like many other lines of Shakespeare, this verse evi- 
dences the familiarity of the Poet with the psychological 
problems of criminology, which abound in his criminal 
types. Expert criminologists have noted how he seems to 
solve the deepe.st and most intricate questions of this 
science, as if in play.* 

The effect of suggestion to the criminal was certainly 
appreciated, as a means of bringing the actions to bear 
Avhich would disclose the evidence of his crime, if not by 
a voluntary confession, by words, or acta, from which his 



* Hamlfet, Prince of Denmai^k, Act II, Scfine II. 
- Tiedeman's R. P. (3d ed.) ; Bouvier's Law Dictionary. 
^Hamlet. Prince of Denmark, Act II, Scene II. 
^Goll's Criminal Types in Shakespeare. 24, 26. 



474 THE LAW IN SHAKESPEARE. 

guilt could be determined. It is needless to say that this 
same method is resorted to by detectives and criminologists 
to discover the evidences of crime in all civilized countries 
to-day.^ 

Sec. 469. Quietus.— 

"Ham. . . . For who would bear the whips and 
scorns of time, 
The oppressor's wrong, the proud man's contumely, 

When he himself might his quietus make, 
With a bare bodkin?"- 

Quietus is a final and complete discharge or acquittance, 
from some existing obligation, as an order by a competent 
tribunal, as to a claim, over which it has jurisdiction, 
that it shall be forever silenced or discharged.^ The term 
is used in the sense of rest, repose, or death, by Hamlet, in 
these lines and he concludes that if it were not for the 
something after death, ''which must give us pause" ; that 
makes calamity of so long life, any one would be tempted 



* Ante idem. 

Hamlet tells Horatio: 
"Observe my uncle; if his occulted guilt 
Do not itself unkennel in one speech. 
It is a damned ghost that we have seen." Act III, Scene II.) 

Considering how the play will affect his Uncle, Hamlet said: 
"Ham. . . . I'll have these players play something like the 
murder of my father. Before mine uncle: I'll observe his looks," 
and in the preceding lines, he said: "For murder though it have 
no tongue, will speak with most miraculous organ." (Act II, 
Scene II.) 

• Hamlet, Prince of Denmark, Act III, Scene I. 
•'' Bouvier's Law Dictionary. 

Speaking of Nature's sovereign power over mortals, the Poet 
said, in the CXXVI' Sonnet: 

"Her audit, though delay'd, answer'd must be 
And her quietus is to render thee." (11, 12.) 



THE LAW IN SHAKESPEARE. 475 

to end it all — to bring the much desired repose and quiet — 
by his own hand. 

Sec. 470. Fratricide.— 

"King. 0, my offence is rank, it smells to heaven; 
It has the primal eldest curse upon 't, 
A brother's murder."^ 

The crime of murdering a brother is known to the law 
as the crime of fratricide- and this is what the King refers 
to, in these lines. The fact that the murder of Abel, by 
his brother Cain, was the first case of fratricide on record, 
justified the King in his reference to his case as one that 
''smells to heaven," since it had the "primal eldest curse 
upon 't," for the Lord said unto Cain: ''And now art 
thou cursed from the earth, which hath opened her mouth 
to receive thy brother's blood from thy hand."^ 

Sec. 471. No corrupted justice above, Evidence by in- 
terested party. — 

"King. ... In the corrupted currents of this world. 
Offence's gilded hand may shove by justice; 
And oft 'tis seen, the wicked prize itself 
Buys out the law: But 'tis not so above: 
There is no shuffling, there the action lies 
In its true nature; and we ourselves compell'd 
Even to the teeth and forehead of our faults, 
To give in evidence."* 

The Poet's voice is always raised against the class of 
crimes known as offenses against the enforcement of jus- 
tice and he aptly draws the terrible example of a corrupted 
judiciary, as compared to the even handed justice above — 
according to our conceptions — Avhere "there can be no 
shuffling," but "the action lies, in its true nature," and 



* Hamlet, Prince of Denmark, Act III, Scene III. 

- Bouvier's Law Dictionary; Bishop's Criminal Law. 
'Genesis, IV, 11, 12. 

* Hamlet, Prince of Denmark, Act III, Scene III. 



476 THE LAW IN SHAKESPEARE. 

ciccorcling to inl'alUblc standards, the right alone prevail^^. 
This is a beautiful picture for one Avho fully appreciates 
the beauty of the virtue which we call justice. But these 
lines do more than this, and also present the injustice of 
the common law rule regarding the testimony of inter- 
ested persons and those accused of crime. 

At common law a party to the record, or one directly 
in -crested in the result of the suit was not a competent 
witness,^ and even under the rule of evidence obtaining 
in England and the United States today, one accused of 
a crime cannot be compelled to give testimony against 
himself," nor can a witness be compelled to answer ques- 
tions that tend to incriminate himself." This rule of evi- 
dence was evidently known to Shakespeare and it im- 
pressed him as not in keeping with the realization of 
justice, for while promising that such evidence could not 
be extorted by the laws of man, he compared this rule 
with the ideal rule that ought to obtain — according to his 
judgment — where 'Sve ourselves" could be "compell'd. 
even to the teeth and forehead of our faults, to give in 
evidence." 

Sec. 472. Counselor. — 

"Ham. . . . Indeed, this counselor, 

Is now most still, most secret, and most grave, 
Who was in life a foolish prating knave."* 

A counselor is one who is consulted by a client in a 
pendmg cause, or who gives advice in regard to questions 
of law, or one whose profession is to advise in matters of 
law, and manage causes for his clients.^ 

As some counselors are garrulous and talk too much 
in giving their advice, Hamlet evidently felt— as the 

'Greenleaf on Evidence (14th ed.). 

- Ante idem. 

'Greenleaf on Evidence (14th ed.). 

' Hamlet, Prince of Denmark, Act III, Scene IV. 

*Bouvier's Law Dictionary. 



THE LAW IN SHAKESPEARE. 477 

Poet makes him speak — the common contempt generally 
entertained for such members of the legal profession, for 
Polonius dead, was "most still, most secret, and most 
grave," "who was, in life, a foolish prating knave," and 
thus, the conclusion is irresistible, that counselors who 
betray their clients' secrets, those AA'ho could not be still 
or grave, were considered better off, as was Polonius. 

Sec. 473. Pleas in abatement. — 

"King. . . . That we would do. 

We should do when we would ; for this would changes, 
And hath abatements and delays as many, 
As there are tongues, are hands, are accidents."^ 

This verse refers to the common custom of filing pleas 
in abatement in the common law practice, which were 
pleas filed by a defendant in a civil or criminal case, by 
means of which, on some formal or technical ground, ho 
sought to abate or quash the action." Such pleas are to 
be distinguished from pleas to the merits or pleas in bar, 
which affected the right, rather than the remedy, that 
the former plea was addressed to generally.^ As the 
effect of such pleas, if successful, was to bring about a 
new action and hence a consequent delay, the Poet, as 
elsewhere,** condemns such practice. 

Sec. 474. "Crowners-quest law." — 

"1 Ch. Is she to be buried in Christian burial, that 
willfully seeks her own salvation? 

• Hamlet, Prince of Denmark, Act IV, Scene VII. 
"Bouvier's Law Dictionary; Stephens, Common Law Pleading. 
'We find, during the reign of Henry III, Reeves said: "A writ 

abated, is obtained upon suggestion or falsehood, or the suppres- 
sion of truth. If the demandant or tenant died, the writ abated, 
and the action too ; but if there were more than one, as parceners, 
having one right, though the writ abated the action survived. If 
there was any error in the names of pei-sons, the writ abated." 
Bracton, 414, b; II Reeve's History Eng. Law, 242. 

* See The LaWs Delay. 



478 THE LAW IN SHAKESPEARE. 

2 Clo. I tell thee, she is; therefore, make her grave 
straight: the crowner hath set on her, and finds it 
Christian burial. 

1 Clo. How can that be, unless she drowned herself in 

her own defence? 

2 Clo. Why, 'tis found so. 

1 Clo. It must be se offendendo; it cannot be else. For 

here lies the point: If I drown myself wittingly, it 
argues an act; and an act hath three branches; it is, 
to act, to do, and to perform; Aggal, she drowned 
herself wittingly, 

2 Clo. Nay, but hear you, good man delver. 

1 Clo. Give me leave. Here lies the water; good; here 

stands the man; good; if the man go to this water 
and drown himself, it is, will he, nill he, he goes; 
mark you that: but if the water come to him, and 
drown him, he drowns not himself: x\rgal, he, that 
is not guilty of his own death, shortens not his 
own life. 

2 Clo. But is this law? 

1 Clo. Ay, marrv is't; crowners-quest law. 

2 Clo. Will you"' ha' the truth on't? If this had not 

been a gentlewoman she should have been buried 
out of Christian burial."^ 

By the common law, under what was known as felonia 
de seipso, as a person committed felony in killing another, 
so he might commit felony in killing himself, and for 
such intentional killing his goods and lands were for- 
feited to the crown. ^ But a madman or lunatic could 
not commit a felony de seipso, unless the act was com- 
mitted during a lucid interval, because no criminal intent 
could be formed by one unable to distinguish between 
right and wrong.^ If a person was drowned, the boat 
out of which he fell, was appraised and in all cases, the 
thing that was the causa imortis was to be valued and for- 
feited as a deodand to the crown.* If the inquisition did ^ 



^ Hamlet, Prince of Denmark, Act V, Scene I. 

- II Reeve's History Eng. Law, p. 275. 

■■'Bracton, 150; ante idem. 

'Bracton, 121, b, 122; II Reeve's History Eng. Law, p. 276. 



THE LAW IN SHAKESPEARE. 479 

not find it to be intentional, but sudden or accidental 
death, however, the result was otherwise; the body that 
for intentional death was denied Christian burial, was 
entitled to be buried and the goods or lands of the de- 
ceased were not forfeited to the Crown. ^ In all cases 
of accidental or intentional death, it was the duty of the 
Coroner to summon all persons who knew anything of 
the death and investigate and determine as to the cause 
of the death.- 

The first Clown, in the above, raises the question of 
the right of the deceased to Christian burial. The other 
Clown advises him that the ''Crowner," meaning the 
Coroner, had investigated and decided that she was so 
entitled. On question again being asked, he again refers 
to the adjudication at the inquisition. He insists that 
the death was intentional, because it was knowingly done, 
and by way of demonstration discriminates between an 
intentional and an accidental death by drowning, an 
argument which seems to convince the other Clown, as 
he concludes that if the deceased had not been a person 
of consequence, she would have been denied Christian 
burial. 

Sec. 475. Hamlet's legal comments on the skull. — 

''Ham. There's another : Why may not that be the scull 
of a lawyer? Where be his quiddits now, his quil- 
lets, his cases, his tenures, and his tricks? Why does 
he suffer this rude knave now to knock him about 



^ Ante idem. 

2 II Reeve's History Eng. Law, 275, 276. 

As Dr. Rolfe shows, in his excellent edition of Hamlet, Sir John 
Hawkins suspects that Shakespeare intended in this dialogue be- 
tween the Clowns, to ridicule a case reported by Plowden, in which 
Sir James Hale had drowned himself in a fit of insanity and the 
discussion by the Court, in the opinion, was with a view of ascer- 
taining if the death was intentional or accidental, and the state- 
ment and arrangement of the propositions were similar to those 
presented by the Clown, in the above lines. Hales vs. Petit, 1 
Plowden, 253. 



480 THE LAW IN SHAKESPEARE. 

the sconce with a dirty shovel, and will not tell 
him of his action of battery? Humph: This fellow 
might be in's time, a great buyer of land, with his 
statutes, his recognizances, his fines, his double vouch- 
ers, his recoveries: Is this the fine of his fines, and 
the recovery of his recoveries, to have his fine pate 
full of fine dirt? will his vouchers vouch him no 
more of his purchases, and double ones too, than the 
length and breadth of a pair of indentures? The 
very conveyances of his lands will hardly lie in this 
box; and must the inheritor himself have no more?"^ 

While these expressions show a great familiarity with 
legal terms they are not used as a lawyer would use them. 
In the first place, no lawyer indulges in such ridicule 
or sarcasm at the expense of the members of his own 
profession, nor would he speak of the subtleties, frivol- 
ous distinctions, or tricks of lawyers, for he knows that 
with the average reputable lawyer such tilings do not 
exist. Of course striking one's scull with a shovel, 
Avould be a battery, in case of a living person and the 
term is properly used, in this sense. By the statutes 
merchant, in force in Shakespeare's time, a debtor could 
be compelled to acknowledge the debt before the chief 
magistrate of a town, and not only his person held to 
satisfy the debt, but his lands, as well, until the rents 
and profits would satisfy the debt.^ In the course of time 
these statutes, with the remedies by fine and recoveries, 
became the ordinary means of acquiring land titles, and 
on the breach of the conditions subsequent, the titles 
became indefeasible. By fine and recovery, the condi- 
tional title of a debtor proceeded against under the stat- 
utes merchant, was barred forever, the fine consisting of 
an agreement, ratified by the Court, acknowledging all 
equities as to the land in controversy to have been forever , 
determined and cut off, and the recovery being the judg- 
ment of the Court, in such fictitious suit, forever barring 

' Hamlet, Prince of Denmark, Act V, Scene I. 

= Tiedeman, R. P. (3d ed.); Ill Reeve's History Eng. Law, 134. 



THE LAW IN SHAKESPEARE. 481 

all claims of the former owner to the land.^ By voucher, 
this fiction of an absolute conveyance was made perfect, 
by the grantor going voluntarily into court and acknowl- 
edging his warranty of title to the grantee, after the lat- 
ter had been fictitiously evicted. A supposed exchange 
of land of the grantor to the fictitious grantee was made 
and the premises originally granted were adjudged the 
absolute property of the grantee, and this recovery was 
known as a single voucher. By double voucher, the 
same process was repeated, in court, except that two ficti- 
tious tenants were substituted, instead of one and acknowl- 
edgment was thus made the more complete by repetition, 
in this form, by the original grantor, through this addi- 
tional voucher.- While the single voucher reached only 
the present title of the grantor and operated to divest 
him, the double voucher was held to cut off all other 
contingent or possible interests in the land.^ But as the 
Poet concludes, the effect of all these conveyances is not 
sufficient to vest the owner with such a title that he can 
take it with him when he passes from this life, but the 
tenures and indentures are all left behind at his death. 

Sec. 476. Hamlet's survivorship and disposal of the 
crown. 

"Ham. 0, I die, Horatio; 

The potent poison quite o'er-crows my spirit; 
I cannot live to hear the news from England: 
But I do prophesy the election lights 
On Fortinbras; he has my dying voice; 
So tell him with the occurents, more or less, 
Which have solicited, — The rest is silence."* 

It is passing strange, that amid the stirring scenes of 
this last act in the tragedy, even at the deathbed of his 

^Tiedeman, R. P. (3d ed.) ; I Reeve's History Eng. Law, 
340, 416. 

= 1 Bl. Comm. 238. 

^'III Reeve's History Eng. Law, 24. 

* Hamlet, Prince of Denmark, Act V, Scene II. 



482 THE LAW IN SHAKESPEARE. 

mother, Hamlet would remember to dispose of the crown, 
in a purely legal manner and that the Poet would remem- 
ber to have him survive the King, so that the crown, in 
law, would first devolve upon him. As if remembering 
that the crown must be looked after and the law provid- 
ing that there could be no inter-regnum, the Poet first 
killed the king and then the crown descended to Hamlet, 
and he, in turn, attempted to dispose of it in favor of 
Fortinbras. The latter asserts his right to the crown in 
these words: 

''Let us haste to hear it, 
And call the noblest to the audience. 
For me, with sorrow I embrace my fortune; 
I have some rights of memory in this kingdom, 
Which now to claim my vantage doth invite me." 

And to this Horatio replies: 

"Of that I shall have also cause to speak, 
And from his mouth w^hose voice will draw no more."^ 

In other words, amid the tragic scenes of this last 
act, the Poet remembers the legal status of the crown and 
the necessity of disposing of it in a proper and lawful 
manner and he does not sacrifice this purely legal ques- 
tion, even for the more stirring scenes of the closing act. 

*Act V, Scene II. 

History does not furnish this close to Hamlet's, or as he was 
properly called, to Amleth's career. Indeed, modern historians of 
Denmark, claim that the whole story of Hamlet is a myth; but 
Muller thinks there is a substratum of fact to the story and 
according to Saxo-Grammaticus, Amleth, Prince of Jutland, lived 
In the 2nd century, B. C, and his father was murdered by his 
uncle, who married his mother and the facts of his life are almost 
exactly as presented in the play. 



CHAPTER XXXVII. 

"OTHELLO, THE MOOR OF VENICE." 

Sec. 477. Non-suit. 

478. Duke's promise to redress Brabantio's wrong. 

479. Proof required of Desdemona's seduction. 

480. Ottiello's election to stand upon Desdemona's evidence. 

481. Sequestration against Desdemona. 

482. lago the cynic anti-pathetic criminal. 

483. Law-days of Courts of Inquiry. 

484. lago's crime against Othello. 

485. Proof of guilt "beyond reasonable doubt." 

486. False indictment on suborned testimony. 

Sec. 477. Nonsuit. — 

"lago. . . . But he, as loving his own pride and 
purposes, 
Evades them, with a bombast circumstance, 
Horribly stuff 'd with epithets of war; 
And, in conclusion, nonsuits 
My mediators."^ 

A non-suit arises, in an action at law, whenever the 
plaintiff, rather than finally submit his cause, either to 
the court or jury, dismisses his action, before the verdict 
or judgment is rendered.^ Non-suits are either volun- 
tary, as where the plaintiff absents himself in order to 
abandon his cause, or involuntary, as where, because of 
an adverse ruling of the court, or because of some defect 
in the proceedings, he is compelled to dismiss his action.* 
The application of the term here, is not amiss, for con- 
sidering the solicitation or suit of the mediators, or citi- 
zens who sue for lago's advancement, as an action at law, 
Othello, rather than grant their prayer, non-suits them, 



' Othello, the Moor of Venice, Act I, Scene I. 
' Bouvier's Law Dictionary. 
" Bliss, Code Pleading, Nonsuits. 

(483) 



484 THE LAW IN SHAKESPEARE. 

or denies the request and they voluntarily withdraw tha 
application. 

Sec. 478. Duke's promise to redress Brabantio's wrong. 

"Duke. Whoe'er he be, that, in this foul proceeding, 
Hath thus beguil'd your daughter of herself, 
And you of her, the bloody book of law 
You shall yourself read in the bitter letter. 
After your own sense ; yea, though our proper son 
Stood in your action."^ 

Brabantio had charged that his daughter had been 
corrupted by medicines and witchcraft, and the Duke 
promises, for the redress of his wrong, to let the injured 
father, himself, within the limits of the law, assess the 
strict letter of the punishment against the offender, even 
though it be his own son, who had thus offended. Pro- 
curing the seduction of an unmarried female by means 
of medicines, or such like means to take away her con- 
sent was equivalent to rape and was punished as a felony, 
by death of the offender and while by the statute of Ed- 
ward I, this punishment was assessed at the instance of 
the party injured, by a later act the punishment was at 
the suit of the King and the election of the injured per- 
son was thus taken away.^ But the Duke recognized -the 
father's right, in this instance, to assess the punishment 
the same as though the law permitted it. 

Sec. 479. Proof required of Desdemona's seduction. — 

''Duke. To vouch this, is no proof; 

Without more certain and more overt test, 
Than these thin habits, and poor likelihoods 
Of modern seeming, do prefer against him."^ 

Brabantio had charged that his daughter must have 
been seduced by witchcraft, medicines or some foul and 



^ Othello, the Moor of Venice, Act I, Scene III. 

^I Reeve's History Eng. Law, p. 461; II idem., pp. 516, 517. 

^Othello, the Moor of Venice, Act I, Scene III. 



THE LAW IN SHAKESPEARE. 485 

occult power, exerted by the Moor, but the Duke advises 
him that in law some proof or. "overt test," must be pro- 
duced, before the presumption of innocence can be over- 
come. In this the Duke only gave Othello the benefit 
of the law, for no one can be convicted of crime on pre- 
sumptions and conjectures, but proof of the guilt of the 
accused is always required.^ The charge of witchcraft 
was the charge of a criminal offense, during the time of 
Shakespeare, for not only did Lord Hale recognize the 
existence of such a fact, in a judgment based upon expert 
evidence of physicians,- but by statute (5 Elizabeth, c. 16) 
any one practicing witchcraft, enchantment, charm or 
sorcery, with the intent to provoke anyone to unlawful 
love, was condemned to suffer imprisonment and the 
pillory and for a second offence, to be deprived of the 
benefit of clergy.^ 

Sec. 480. Othello's election to stand upon Desdemona's 
evidence. — 

"0th. I do beseech you, 

Send for the lady to the Sagittary, 
And let her speak of me before her father: 
If you do find me foul in her report. 
The trust, the office, I do hold of you, 
Not onlv take awav, but let vour sentence 
Even fall upon my life."* 

Brabantio's charge against Othello that he had seduced 
his daughter, by medicines or witchcraft, amounted in 
law to rape and for this crime the accused, on conviction, 
was punishable by death.^ But by the practice which 
obtained on the trial of such offenses, in the time of 



*V Reeve's History Eng. Law, 312, et sub. 

^^ Strickland, Evid., 408; 2 M. & M., 75; 3 Dougl., 157. 

^V Reeve's History Eng. Law, p. 349. 

* Othello, the Moor of Venice, Act I, Scene III. 

•II Reeve's History Eng. Law, 516, 517. 



486 THE LAW IN SHAKESPEARE. 

Shakespeare, if the accused elected so to do, he had the 
right to stand upon the evidence of the "woman in the 
case," or, as expressed by Glanville, "it was in the elec- 
tion of the person accused, either to submit to the burden 
of making purgation, or leave it upon the evidence of the 
woman herself."^ So it seems in leaving the issue of his 
guilt to Desdemona's evidence, the Moor invoked his legal 
right and that he made no mistake, in this course, is 
demonstrated by the testimony given by Desdemona, 
which effectually acquitted him of the charge. 

Sec. 481. Sequestration against Desdemona. — 

"lago. ... It cannot be, that Desdemona should 
long continue her love to the Moor, — put money in 
thy purse ; — nor he his to her ; it was a violent com- 
mencement, and thou shalt see an answerable seques- 
tration."^ 

In English law, sequestration is the process by which 
the creditor of a clergyman sues out an execution on his 
judgment and obtains payment of his debt.^ In ordi- 
nary judgments against laymen, a levy is made upon the 
real estate or personal property of the debtor and same 
is sold to satisfy the debt ; but in the case of a clergyman, 
the bishop puts in force the law; sequestrators are ap- 
pointed by him to take possession of the benefice, and to 
draw the emoluments, after due provision for the contin- 
uance of the divine worship. 

lago thus appoints himself the bishop to undertake the 
sequestration of the object of the Moor's worship, which 
he promises, by innuendo, to let Roderigo enjoy, by 
means of this legal process, which he will inaugurate for 
his benefit. 



'Glanville, lih. 14, c. 6; V Reeve's History Eng. Law, p. 462. 
- Othello, the Moor of Venice, Act I, Scene III. 
'Bouvier's Law Dictionary. 



THE LAW IN SHAKESPEARE. 487 

Sec. 482. lago the cynic antipathetic criminal. — 

"lago. ... I have told thee often, and I re-tell thee 
again and again, I hate the Moor; My cause is 
hearted: thine hath no less reason: Let us be con- 
junctive in our revenge against him: if thou can'st 
cuckold him, thou dost thyself a pleasure, and me a 
sport. There are many events in the womb of time, 
which will be delivered."^ 

Speaking of lago as the antipathetic cynic, in crime, 
GoU says : "In his utterly coarse, ice-cold heart lives only 
the soul of his own selfishness. What he understands is 
the selfishness of others, what he does not understand is 
self-sacrifice. And, as he does not understand it, he 
denies it; and, not only does he deny it — he hates it, 
because it is diametrically opposed to his own nature: he 
hates it because, if he recognized it, he must hate himself, 
and he cannot hate himself ; if he could, he would not be 
the egoist he is. In the desert of his heart is raised a 
tower, wherein sits the mephistopheles of his egoism, who, 
with burning, scorching eyes, watches the ways of men. 
Wherever he sees active the spirit of dissension, hatred, 
anger, destruction, his heart expands. Wherever he sees 
goodness, forbearance, love, and happiness, his heart con- 
tracts: and wherever he can, he chops the head off each 
of them, that it may never blossom again. He does not 
even covet what one hates. The mold of civilization has 
never spread itself on the stony ground of his heart. Na- 
ture's barren rock, hard and cold and grey, whereon only 
the very lowest forms of life may thrive, shows itself there. 
For him, therefore, only the life he sees is real, true, 
genuine : the life of civilization a detested sham. And, as 
he hates this life, he also hates all the qualities on which 
it is based, all that w^hich, for humanity, is the bearer and 
upholder of civilization. To these cynics lago belongs."^ 

^Othello, the Moor of Venice, Act I, Scene III. 
■■'Goll's Criminal Types in Shakespeare, 223, 225. Speaking of 
the character of lago, this author elsewhere says: "In lago we 



488 THE LAW IN SHAKESPEARE. 

Sec. 483. Law-days of courts of inquiry. — 

"lago. . . Where's that palace, where into foul things 
Sometimes intrude not? who has a breast so pure, 
But some uncleanly apprehensions 
Keep leets, and law days, and in session sit 
With meditations lawful?"^ 



have another type of the criminal by instinct, whose motive is the 
lust of destruction. He aspires not himself, to become possessed 
of the treasure, but to rob the possessor of his enjoyment of it, to 
destroy it for him, to kill his joy in it." (Goll's Criminal Types in 
Shakespeare, p. 206.) 

Explaining the reason for lago's hatred for his patron, the 
Moor, and his motive for his criminal conduct, Goll says: "The 
despised 'thick-lips' thus, suddenly, by the chance of fate, becomes 
a powerful and, what is much worse, a happy man. lago's star 
grows dim: Othello's love-messenger, Cassio, gets the lieutenancy. 
Thus it becomes clear that lago no longer is number one, his part 
is almost played out: the Moor can stand on his own legs; he 
has won new powerful friends, who can assist him to a much 
greater extent than lago. He can now follow his own proud and 
happy road, without lago as master. Upon that event vanishes, 
as if by magic, all lago's good-will — or rather, lack of ill-will— 
for the Moor. So long as lago is able to play the great and 
superior person, he can pass for a friend. When he becomes the 
lesser and inferior he is at once turned into an irreconcilable 
enemy. Othello has reached an elevated position, and what is 
thus elevated lago must tear down; where there is human peace 
and happiness, lago must sow strife and unhappiness: that is the 
desire of his heart; therefore the happiness of the Moor must be 
ruined. But to this common motive of rancour and envy is allied 
another special motive, which Shakespeare has certainly hidden 
deep down in the drama, yet no further than it may be found; a 
motive which indicates the deepest abyss of the human soul." 
This gifted criminologist then proceeds to show that the cohabita- 
tion of Othello with Desdemona and his resulting happiness is the 
mainspring which arouses all the erotically coloured envy of lago. 
and with his natural lust for cruelty, this gives him the impulse to 
destroy all concerned in the happy state that he sees around him, 
because he cannot enter the charmed circle. (Goll's Criminal 
Types in Shakespeare, pp. 228, 229, 237. 239.) 

^ Othello, the Moor of Venice, Act III, Scene HI. 



THE LAW IN SHAKESPEARE. 489 

In instigating the jealousy of the Moor, lago in these 
lines, likens the human mind to a palace, wherein courts 
of inquiry are held, on proper law days,^ at regular ses- 
sions of such courts, meditations are had upon causes 
not as pure as those that ought to occupy the mind. 

lago has now commenced to work toward his aim. In 
the great scene wherein the Poet, with the master's hand — 
as if familiar with the known depths of the abyss into 
which lago enters and all the psychological reasons that 
prompt him to action — portrays how consummately lago 
works upon the mind of Othello until he puts the Moor 

"At least into a jealousy so strong 
That judgment cannot cure," 

and then he is happy, in the realization of the crime, to 
which his natural erotic lust of cruelty and envy has 
led him. 

Sec. 484. lago's crime against Othello. — 

"lago. . . . Look to your wife; observe her well with 
Cassio, 
Wear your eye — thus, not jealous, nor secure: 
I would not have your free and noble nature, 
Out of self-bounty, be abus'd; look to't: 
I know our country disposition well; 
In Venice they do let heaven see the pranks 
They dare not show their husbands; their best con- 
science 
Is not to leave undone, but keep unknown. 

0th. Dost thou say so? 

lago. She did deceive her father, marrying you; 

And, when she seem'd to shake, and fear your looks, 
She lov'd them most. 

Otli. And so she did. 

lago. Why, go to, then; 

She that, so young, could give out such a seeming. 
To seel her father's eyes up, close as oak, — 



* Court-leet is the oldest court with criminal jurisdiction; it was 
a court of record and had power similar to that of the Sheriffs 
tourn in the county. Dyer, 30b; 4 Bl. Comm. 273. 



490 THE LAW IN SHAKESPEARE. 

He thought, 'twas witchcraft: — But I am much to 

blame ; 
I humbly do beseech you of your pardon, 
For too much loving you. 
0th. I am bound to thee forever."^ 

In thus destroying, for all time, his faith in his wife, 
lago here commits the greatest crime that he could against 
Othello, for as his love for Desdemona exceeded all else 
on earth, the act of lago in breaking his faith in her, 
destroyed his happiness forever. Breach of faith is always 
the real basis of crime and as the effect of such loss of 
faith is the more far reaching, nothing could have been 
more cruel toward Othello than this awakening of his 
jealousy for his wife, for this was the ruling passion of 
his life. When the power or possibility of confidence in 
humanity is killed, society itself is impossible, and as 
Othello's whole life was bound up in Desdemona, when 
his confidence in her was gone, his life was wrecked. 
This was the deliberate aim of lago and hence shows the 
greater criminal instinct which he possessed. As ob- 
served by Goll,^ "if humanity itself had occupied the place 
of Othello, then lago would be the greatest criminal in 
the world," for while Brutus killed because of the exalted 
motive which placed the welfare of his fellows above his 
own, lago worked to accomplish the destruction of all 
about him, from the mere lust of cruelty and envy. And 
thus the motives of the "creatures of crime," as pre- 
sented by the immortal genius of Shakespeare, can be 
best understood with the help of the scientist in crim- 
inology. 

Sec. 485. Proof of guilt beyond reasonable doubt. — 

''0th. Villain, be sure thou prove my love a whore; 
Be sure of it, give me the ocular proof; 



* Othello, the Moor of Venice, Act III, Scene III. 
=■ Goll's Criminal Types in Shakespeare, 257, 258. 



THE LAW IN SHAKESPEARE. 491 

Make me to see it; or (at the least) so prove it, 
That the probation bear no hinge, nor loop, 
To hang a doubt on : or, wo upon thy life."^ 

Othello, in these lines, demands proof of the guilt of 
Desdemona ''beyond a reasonable doubt." This is the 
degree of proof that the law always accords one accused 
of crime and in demanding proof of her guilt to this 
extent, the Poet made him merely stand for her legal 
rights.- A presumption of innocence surrounds all those 
accused of crime, however hardened the criminal may be, 
and when this rule of evidence would be extended to those 
accused of the vilest crimes, Othello did not ask too 
much for the poor innocent wife of his bosom, in invok- 
ing this common rule of evidence.^ In every trial of 
one accused of crime, the court instructs the jury that if 
they have "a reasonable doubt" of the guilt of the 
accused, they should acquit, or, in other words, the prose- 
cution must "so prove it, 

That the probation bear no hinge, nor loop, 
To hang a doubt on," 

or the proof of the crime is not legally established. 

Sec. 486. False indictment on suborned testimony. — 

"Des. . . . Beshrew me much, Emilia, 
I was, (unhandsome warrior as I am,) 
Arraigning his unkindness with my soul, 
But now, I find, I had suborn'd the witness, 
And he's indicted falsely."^ 

Shakespeare here makes Desdemona speak in the lan- 
guage of the law, with the precision of an experienced 
barrister. As it is always a preliminary to a trial for 
crime, to arraign the accused, she was "arraigning his 



' Othello, the Moor of Venice, Act III, Scene III. 
-Sherwood's Criminal Law; Bishop's Criminal Law. 
' Greenleaf on Evidence. 
* Othello, the Moor of Venice, Act III, Scene IV. 



492 THE LAW IN SHAKESPEARE. 

unkindness," with her soul giving evidence against him. 
An indictment is the written accusation of crime against 
a person,, and upon which he is tried by a jury.^ The 
indictment is generally returned by a grand-jury, upon 
the sworn evidence of one or more witnesses. Of course, 
if the witness was "suborned," or procured to sw^ear falsely, 
the indictment w^ould be a false charge. So, after rea- 
soning over Othello's unkindness, charged as he was by 
her soul, Desdemona's supreme love acquitted him, even 
to the discredit of her own soul, whose evidence she dis- 
carded because of her belief in him. It is a beautiful 
presentation of her love and trust, and the contrast is 
the more noticeable, because of Othello's lack of confidence 
in her. 



1 Bishop's Criminal Procedure; 4 Bl. Comm. 302. 



CHAPTER XXXVIII. 

"VENUS AND ADONIS." 

Sec. 487. Judge cannot right his own cause. 

488. Law-giver unable to enforce Law. 

489. Client wrecked, when attorney mute. 

490. Conveyance by seal-manual. 

491. Double penalty upon broken bond. 

492. Inheritance by next of blood. 

Sec. 487. Judge cannot right his own cause. — 

". . . . impatience chokes her pleading tongue, 
And swelling passion doth provoke a pause; 
Red cheeks and fiery eyes blaze forth her wrong; 
Being judge in love, she cannot right her cause: 
And now she weeps, and now she fain would speak, 
And now her sobs do her intendments break. "^ 

The Roman goddess of love is here represented in the 
attitude of a judge, who, because of this position, could 
not decide the issue between herself and iVdonis in her 
own favor, since a judge cannot adjudicate in his own 
cause. It is somewhat remarkable that even in delineat- 
ing the tender passion and while describing the mad pas- 
sion of the '^divine mother of the Roman people," the 
Poet should use legal phrases, or resort to judicial refer- 
ence to illustrate his thoughts. 

Sec. 488. Law-giver unable to enforce law. — 

"Poor queen of love, in thine own law forlorn, 
To love a cheek that smiles at thee in scorn. "- 

This verse does not alone present the sad picture of the 
goddess of love in her total inability to arouse even a 
spark of affection in the object of her passion, but it does 

1 Venus and Adonis, 217, 222. 
- Venus and Adonis, 251, 252. 

(493) 



494 THE LAW IN SHAKESPEARE. 

far more. In these two brief lines, Venus, the goddess 
of love is represented as the law-giver in this greater than 
human law, in the pitiable condition of being unable to 
embrace the law she gives the world. While giving love 
to the world it would indeed be forlorn for the queen of 
love to bestow her affection upon one who smiled at her 

in scorn. 

1 

Sec. 489. Client wrecked, when attorney mute. — 

''An oven that is stopp'd, or river stay'd, 
Burneth more hotly, swelleth with more rage: 
So of concealed sorrow may be said; 
Free vent of yards of love's fire doth assuage; 
But when the heart's attorney once is mute. 
The client breaks, as desperate in his suit."^ 

The heart is here placed in the attitude of a client of 
the tongue, whose cause must be represented by the latter, 
as such attorney. Of course if the attorney, whose busi- 
ness is to speak in the interest of his client's cause, 
remained mute, when he should have spoken, the rights 
of the client would suffer correspondingly and the suit 
would be in a desperate strait. 

Sec. 490. Conveyance by seal-manual. — 

" 'Pure lips, sweet seals in my soft lips imprinted, 
What bargains may I make, still to be sealing? 
To sell myself I can be well contented. 
So thou wilt buy, and pay, and use good dealing; 
Which purchase, if thou make, for fear of slips. 
Set thy seal-manual on my wax-red lips."- 

In the time of the Poet the custom of sealing all bar- 
gains was given far more prominence in the law than 
to-day, when seals have been abolished by the statutes 
of many countries. Seals were then a pre-requisite to 



^ Venue and Adonis, 331, 336. 
- Venus and Adonis, 511, 516. 



THE LAW IN SHAKESPEARE. 495 

all bargains and sales of land or other instruments for 
the conveyance of land.^ Most individuals had their own 
private seals and deeds were made with seals-manual and 
impressions of wax, and these formulas were indispensable 
to the validity of such written contracts. 

So the art of kissing is likened to the old practice of 
sealing such contracts, where the lips of Adonis were 
referred to as the seal to be imprinted in the waxen lips 
of the goddess, Venus. A deed under the sign-manual of 
the king, such as were annexed to letters patent, carried 
absolute verity and as the existence of such an instrument 
could not be questioned, Venus pleads for such a substan- 
tial recognition of her claims. 

Sec. 491. Double penalty upon broken bond. — 

"A thousand kisses buys my heart from me; 
And pay them at thy leisure, one by one. 
What is ten hundred touches unto thee? 
Are they not quickly told and quickly gone? 
Say, for non-payment that the debt should double. 
Is twenty hundred kisses such a trouble ?''- 

The goddess of Love in these lines offers to sell her 
heart for one thousand kisses, on time, under a bond con- 
ditioned for the payment, in kind, by Adonis, at his leis- 
uer, one by one. She urges him to the contract that pay- 
ing them in this way he is out nothing, but ten hundred 



^ II Reeve's History Eng. Law, 54. 

In explaining how he was able to counterfeit the King's seal, in 
forging new orders to the English, as regards Rosencrantz and 
Gildenstern, Hamlet explains to Horatio that 
"I had my father's signet in my purse. 
Which was the model of that Danish seal: 
Folded the writ up in form of the other; 
Subscribed it, gave the impression; plac'd it safely. 
The changeling never known." (Act V, Scene II.) 

=" Venus and Adonis, 517, 522. 



496 THE LAW IN SHAKESPEARE. 

touches. Like the pleasurable thoughts we think they are 
quickly told and gone. Then she conditions that if he 
fail to pay, as agreed, the penalty of the bond shall be 
doubled — as the obligations of such nature usually run, 
at common law^ — and consoles him Avith the reflection 
that this double penalty in case of breach of the obliga- 
tion assumed, would not be very hard on him to pay, in 
any event. This whole proposition and reasoning is a 
legal offer and statement of the effect of the breach of 
the proposal to contract on the terms stated by the Roman 
goddess of Love. 

Sec. 492. Inheritance by next of blood. — 

''Here was thy father's bed, here in my breast; 
Thou art the next of blood, and 'tis thy right."^ 

Adonis' birth-right is placed as it would be, in law, in 
case of the descent of real estate, wherein the law would 
devolve the title on the first-born, or "next of blood." 
In other words, the goddess of love, goes further back than 
in mere recognition of the right of Adonis, but character- 
izes his right as that of descent, through his own father, 
who had enjoyed the right before him. A right by 
inheritance is the best title known to the law and this 
title only devolves upon the "next of blood," so the recog- 
nition of the right, on Adonis' part, could not have been 
by better title.^ 



^Lawson, on Contracts (3d ed.). 
-Venus and Adonis, 1183, 1184. 
'Tiedeman, R. P. (3d ed.). 



CHAPTER XXXIX. 

"THE RAPE OF LUCRECE." 

Sec. 493. Loving against Law and Duty. 

494. Pleading for right, in wilderness without Law. 

495. Holy human Law. 

496. Attestation by Notary. 

497. The assault upon Lucrece. 

498. Opportunity spurns Right and Law. 

499. Justice feasting, while widow weeps. 

500. Errors by opinion bred. 

501. Wronger wronged by Time. 

502. Case past help of Law. 

503. Rightful plea for Justice — Denial of. 

Sec. 493. Loving against law and duty. — 

"I know what thorns the growing rose defends; 
I think the honey guarded with a sting ; 
All this beforehand counsel comprehends: 
But will is deaf and hears no heedful friends; 
Only he hath an eye to gaze on beauty, 
And dotes on what he looks, 'gainst law or duty."*^ 

Contemplating the crosses that his attempt upon Lucrece 
will bring, Tarquin places his will in the attitude of a 
client, taking counsel from an adviser. His better judg- 
ment, before the deed, counsels his will to refrain from 
such a slaughter of another's right. But his will is deaf 
to the appeal of his counsel, and, with an eye sole to the 
beauty of Lucrece, like the thief, who would possess what 
he longs for, regardless of the infraction of another's 
rights, he "dotes on what he looks, 'gainst law or duty." 

Sec. 494. Pleading for right, in wilderness without 
law. — 

"While she, the picture of true piety. 
Like a white hind, under the gripe's sharp claws, 

^ The Rape of Lucrece, 492, 497. 

(497) 



498 THE LAW IN SHAKESPEARE. 

Pleads, in a wilderness where are no laws, 

To the rough beast that knows no gentle right 

Nor aught obeys but his foul appetite."^ 

It is passing strange that the Poet, even in describing 
the distress of Lucrece, in her effort to avoid the lust of 
the debased Tarquin, would think of legal illustrations 
to express her anguish. In a wilderness without law, it 
would of course be unavailing to plead to a beast who 
knew no law, except his own foul appetite, for the recog- 
nition of the "gentle right," since the right is recognized 
only where the law abides. Like the frail beast which is 
powerless in the embrace of the mighty one that hunger 
leads by natural law to destroy the weaker, the poor 
Lucrece is powerless in her pleading, for the recognition 
of the right can find no lodging place in a bosom as 
debased as that of Tarquin. The adherence to the rules 
of conduct prescribed for the recognition of the others' 
rights, and the use of our own in such manner as not to 
cause injury to others in their own, is what distinguishes 
civilized man from the beasts of the wilderness who know 
no law, but that .of the claAv and fang ; and to this latter 
class is Tarquin properly likened. 

Sec. 495. Holy human law. — 

"She conjures him by high almighty Jove, 
By knighthood, gentry, and sweet friendship's oath, 
By her untimely tears, her husband's love. 
By holy human law and common troth 
By heaven and earth and all the power of both. 
That to his borrow'd bed he make retire. 
And stoop to honor, not to foul desire."- 

The veneration for law, which this verse evidences, is 
characteristic of the great Shakespeare, at all times. Ap- 
pealing first, in the name of the great Jove, then to his 
chivalry, his family, the friendship of her husband, her 



' The Rape of Lucrece, 542, 546. 
- The Rape of Lucrece, 568, 574. 



THE LAW IN SHAKESPEARE. 499 

own tears, and her husband's love, as a final appeal, she 
places her right to exemption from his lecherous embrace, 
upon the ''holy human law," which, in all civilized coun- 
tries, protects the husband's right to the affection and 
society of his wife. Upon this protection of the home 
the strongest laws of society are based, for without pro- 
tection of the domestic relations, mankind becomes but 
little better than beasts of the field. The law so far pro- 
tects the happiness and sacredness of the home that any- 
one who destroys such happiness is both civilly and crim- 
inally liable and to such an extent is the society of the 
wife recognized, as a property right of the husband, that 
for any alienation of her affection, he is given a cause 
of action, at law.^ 

Sec. 496. Attestation by notary. — 

"O comfort-killing Night, image of hell: 
Dim register and notary of shame. "- 

A notary is an officer known to the civil law of Rome 
as tabellio forensis.^ In England this officer was ap- 
pointed by the archbishop of Canterbury and his duties 
were to take and administer oaths and affirmations; to 
attest the execution of legal instruments and certify to 
contracts and other documents generally. 

Frantic with grief, Lucrece expresses her spite, and 
compares the night of her undoing to a notary, which 
with seal and commission attested or bore witness to her 
shame, so that it would be known to all men. It is a 
pitiful scene which the Poet depicts in this and succeed- 
ing verses, by comparing night to this somber officer of 
the law, responsible for the ''cureless crime" against 
Lucrece. 



* Schouler's Domestic Relations. 
^The Rape of Lucrece, 764, 765. 
^Bouvier's Law Dictionary. 



500 THE LAW IN SHAKESPEARE. 

Sec. 497. The assault upon Lucrece. — 

"If, Collatine, thine honor lay in me, 
From me by strong assault, it is bereft."^ 

An assault is an attempt to inflict bodily injury upon 
another, coupled with a present intent to carry such 
attempt into execution. ^ Battery is the consummation oi 
the assault, or the actual infliction of threatened violence.^ 

Assaults with the intent to commit a rape, such as the 
assault by Tarquin upon Lucrece, in the domain of crim- 
inal law, are known as the most aggravated forms of 
assault, and are followed by the most severe punishment. 
In other words, as reflected by the wronged Lucrece, her 
husband's honor was bereft of her by "strong assault," 
but it is strange that the Poet would have this wronged 
woman bewail her fate in the use of such legal terms. 



Sec. 498. Opportunity spurns right and law. — 

"Opportunity, thy guilt is great: 
'Tis thou that executest the traitor's treason ; 
Thou set'st the wolf where he the lamb may get ; 
Whoever plots the sin, thou point'st the season ; 
'Tis thou that spurn'st at right, at law, at reason ; 
And in thy shady cell, where none may spy him. 
Sits Sin, to seize the souls that wander by him."* 

This personification of Opportunity, as the accessory 
to treason and the executor of such dire crimes, as to 
render the guilt of Opportunity so apparent, is of course 
a forced conclusion, to carry out the idea of the Poet's 
thoughts, for the same reasoning could be urged to show 
that Opportunity was the blessing of the innocent and 
the means of obtaining and carrying out philanthropy, 
charity and beneficence. But of course in the way in 



^The Rape of Lucrece, 834, 835. 

- Cooley on Torts. 

' Ante idem. Bouvier's Law Dictionary. 

*The Rape of Lucrece, 876, 882. 



THE LAW IN SHAKESPEARE. 501 

which it is used the word is susceptible of the construc- 
tion and meaning given it by Shakespeare, for those who 
plan crime, must await the opportunity to carry it out 
and embracing the opportunity to commit crime, of course 
does constitute opportunity, as the means by which it is 
accomplished, in part responsible for the crime commit- 
ted, so in this sense it can be said to spurn "at right, at 
law, at reason." But the thought that Sin, sitting in the 
shady cell of Opportunity, awaiting to "seize the souls 
that wander by him," so links up Opportunity with Sin, 
in furnishing an abiding place and harboring him, that 
this use of the word can only be justified under the plea 
of poetic license, or the diseased reflections of the wronged 
Lucrece.^ 

Sec. 499. Justice feasting while widow weeps. — 

"The patient dies while the physician sleeps; 
The orphan pines while the oppressor feeds; 
Justice is feasting while the widow weeps; 
Advice is sporting while infection breeds."^ 

Bewailing her fate and the opportunity which led Tar- 
quin to accomplish her ruin, the poor Lucrece sees only 
the bad effects of opportunity and instead of cursing alone 
the criminal intent and bad motives of Tarquin, she per- 
sonifies Opportunity to upbraid it, as the friend of the 
opulent and powerful alone. She laments that the 
humble suppliant sues in vain, for on these, as she views 
her own sad lot. Opportunity turns a deaf ear. The 
orphan pines while the oppressor feeds. "Justice is feast- 
ing while the widow weeps ; advice is sporting while infec- 



^ Following up this reasoning, she is made to complain further 
of Opportunity, in the next verse, as follows: 
"Thou makest the vestal violate her oath; 
Thou blowest the fire when temperance is thaw'd; 
Thou smotherest honesty, thou murder'st troth; 
Thou foul abettor: thou notorious bawd." (883, 886.) 

'The Rape of Lucrece, 904, 907. 



502 THE LAW IN SHAKESPEARE. 

tion breeds." This, of course, is misanthropy, but under 
the circumstances it could not be presumed that Lucrece 
M'ould view the world through the transparent glasses of 
a beneficent philosophy, but the crimes against the weak 
and down-trodden would naturally be magnified by the 
unequal gloss of her horoscope, superinduced by her forced 
misery. 

Sec. 500. Errors by opinion bred. — 

''Time's office is to fine the hate of foes, 
To eat up errors by opinion bred, 
Not spend the dowry of a lawful bed."^ 

After lamenting that Time, through his servant Oppor- 
tunity, had chained her to an "endless date of never- 
ending woes," Lucrece then reflects that this is not the 
proper office of Time, but in its natural effect it ends the 
hate of foes, eats up "errors by opinion bred," without 
spending the dowry of a lawful bed. Shakespeare else- 
where refers to erroneous opinions, "recorded for a prec- 
edent," and sagely philosophizes how, when this is done, 
"many an error, by the same example, will rush into the 
state."- This is the logical conclusion of a lawyer, from 
the premise given, for it is the experience of mankind, 
based upon a similar state of facts. The "dowry of a law- 
ful bed" is the right to the undivided society and love of 
the wife, which Lucrece complains that Time and Oppor- 
tunity have taken from the lawful possessor. 

Sec. 501. Wronger wronged by time. — 

"Time's glory is to calm contending kings, 
To unmask falsehood and bring truth to light. 
To stamp the seal of time in aged things. 
To wake the morn and sentinel the night, 
To wrong the wronger till he render right."^ 



^ The Rape of Lucrece, 936, 938. 

- Merchant of Venice, Act IV, Scene I. 

'The Rape of Lucrece, 939, 943. 



THE LAW IN SHAKESPEARE. 503 

Emerson heard a sermon by a minister whose ortho- 
doxy led him to conclude that the good must be miserable 
on this earth ; that the righteous judgment was not execu- 
ted here, but the wicked would continue successful, until 
the Last Judgment. This reminded him of the fallacy 
of this argument and he wrote his essay on "Compensa- 
tion." Shakespeare grasped this great truth, centuries 
before Emerson wrote, and in these lines he placed in the 
mouth of the wronged Lucrece the same philosophy. He 
knew, with Emerson, that "the specific stripes may follow 
late after the offense, but they follow, because they accom- 
pany it." He also realized that "crime and punishment 
grew out of one stem."^ He places the same wisdom in 
the mouth of Lucrece that prompted the great Emerson 
to conclude that "every act rewards itself" and with the 
aid of Time, "men call the circumstance the retribution," 
which is often spread over a long time. Like the impres- 
sion on the wax placed on legal documents, Time stamps 
its seal on aged things and "Time's glory" is to "wrong 
the wronger till he render right." Time will not only 
punish him, by making him suffer, as he makes others 
suffer,- but by the fixed law of compensation, wrong him, 
"till he render right," or make full and adequate restitu- 
tion. 

Sec. 502. Case past help of law.— 

"'Out, idle words, servants to shallow fools: 
Unprofitable sounds, weak arbitrators : 
Busy yourselves in skill-contending schools ; 
Debate where leisure serves with dull debaters ; 
To trembling clients be you mediators: 
For me, I force not argument a straw, 
Since that my case is past the help of law."^ 



• Emerson's Essay, Compensation. 

- This is Doctor Rolfe's interpretation of these words, "Wrong 
the Wronger." (See Rolfe's Venus and Adonis, p. 242.) 
*The Rape of Lucrece, 1016, 1022. 



504 THE LAW IN SHAKESPEARE. 

Lucrece, in these lines, concludes that when the heart 
is so full of contending emotions as she then suffers, mere 
words are too weak arbitrators for her case. Words are 
all right for dull debaters, or scholars, in the debates of the 
school-room, but not for cases like hers! Words would 
be adequate mediators for a dubious, trembling client; 
but not for one who had lost all he had and who had no 
more to lose. Like one in this position, whose rights had 
been so outraged that he had nothing more to lose, the law 
could furnish him no remedy, for he would have a case 
that would be "past the help of law."^ 

Sec. 503. Rightful plea for justice — Denial of. — 

"My bloody judge forbade my tongue to speak; 
No rightful plea might plead for justice there: 
His scarlet lust came evidence to swear 
That my poor beauty had purloin'd his eyes; 
And when the judge is robb'd the prisoner dies."- 

The adoption, by the Poet, of the comparison of Tar- 
quin with a judge, who would not let a plea for justice 
be entered, in the narration of the story of her wrong to 
her husband, by Lucrece, is an apt illustration of the 
frequent use of legal terms, by Shakespeare, to make the 
more impressive the solemnity of the scene he describes. 
A judge who w^ould refuse to let a plea for justice be en- 
tered, would of course be a most unjust judge. Add to 



' In narrating her shame and the causes thereof to her hus- 
band and his friends, Lucrece concludes: 
. . . " 'tis a meritorious fair design 
To chase injustice with revengeful arms: 
Knights, by their oaths, should right poor ladies' harms. 



The help that thou shalt lend me comes all too late, yet let 

the traitor die; 
For sparing justice, feeds iniquity." (1685, 1687.) 



'The Rape of Lucrece, 1648, 1652. 



THE LAW IN SHAKESPEARE. 505 

this, a judge who admitted his lust alone to prompt him 
to a conclusion as the only witness whose evidence he 
would receive, and if Tarquin could properly be likened 
to the incumbent of the judgment seat, this is a proper 
picture to draw of him. His lust had convinced him 
that he was blind with love for Lucrece. All the attributes 
of the judge were thus taken from him and of course no 
justice could be meted out to the prisoner. 



CHAPTER XL. 

"SONNETS." 

Sec. 504. Determination of lease. 

505. Improper to praise by hearsay. 

506. Adverse party for advocate. 

507. Trial between Eye and Heart— Jury of Heart's tenants. 

508. No cause alleged against lawful reason. 

509. Grant failing for want of consideration. 

510. Forfeiture of limited lease. 

511. Forfeiting mortgaged property. 

Sec. 504. Determination of lease. — 

"Against this coming end you should prepare, 
And your sweet semblance to some other give. 
So should that beauty which you hold in lease 
Find no determination."^ 

In urging that posterity is the only avoidance of death, 
the Poet here uses legal terms pertaining to a tenancy for 
years to illustrate to beauty the necessity of procreation to 
prolong the term of years. 

"Since sweets and beauties do themselves forsake 
And die as fast as they see othei*s grow," 

it is suggested in these lines that the proper preparation 
ought to be made to prevent the coming end, so that the 
beauty which is given for a determinate term of years only, 
may be lengthened into a term Avithout end or determina- 
tion. 

When real estate is demised for a term of years it is 
called a lease, in law, and the end of the leasehold or 
tenancy is said to be the termination of the tenancy.^ 



' Sonnets, XHI, 3, 6. 

= Tiedeman's R. P. (3d ed.) ; Taylor's Land. & Ten. 

In the XVIII' Sonnet, it is said: 
"Rough winds do shake the darling buds of May, 
And summer's lease hath all too short a date." (3, 4.) 

(506) 



THE LAW IN SHAKESPEARE. 507 

Sec. 505. Improper to praise by hearsay. — 

"0, let me, true in love, but truly write, 
And then believe me, my love is as fair 
As any mother's child, though not so bright 
As those gold candles fix'd in heaven's air: 
Let them sav more that like of hearsav well ; 
I will not praise, that purpose not to sell."^ 

After first promising that nothing but the truth will be 
expressed, as to his "love," the Poet affirms, on the best 
evidence, as to things actually known, that he is as fair 
as any mother's son, though not so bright as the fix'd 
stars of heaven. He will not affirm anything of his love, 
by secondary or hearsay evidence, but those who prefer 
hearsay to actual facts, could say much more. No painted 
rhetoric or hearsay evidence are needed to add color to the 
description given by the actual facts concerning the sub- 
ject referred to. Things for sale require such praise, but 
not those things that are not intended for the market. 

As hearsay evidence is incompetent in all legal proceed- 
ings- and opinions are only admissible by experts, or 
those possessing skill or experience in a given transac- 
tion, the reference in these lines to the rule requiring the 
best evidence of which the subject is susceptible, seems 
apparent. 

Sec. 506. Adverse party for advocate. — 

"For to thy sensual fault I bring in sense — 
Thy adverse party is thy advocate — 
And 'gainst myself a lawful plea commence.""' 

An advocate is generally defined as the "patron of a 
cause," though it does not appear that the patrons called 
in at Rome to assist the cause of their clients were called 
by this name. The term Advocaius, in the time of Cicero, 
was not applied to the patron or orator who assisted in the 



> Sonnets, XXI, 9, 14. 

- Greenleaf on Evidence (14th ed.). 

^ Sonnets, XXXV, 9, 11. 



508 THE LAW IN SHAKESPEARE. 

cause in public, but rather as the etymology of the word 
would indicate, to the one called in to assist at the trial of 
the cause.^ 

"Sense," judgment or reason, is "called in" or brought 
in, as it were, as the advocate of the sensual one, and in 
this cause, sense is the adverse party to the sensual one, for 
whom this adv .cate appears and at once enters a "lawful 
plea" against Shakespeare. In the use of the term Advo- 
cate, the Poet uses it as it was understood at Rome, for an 
advocate was not the orator who pleaded in the cause, but 
w^as only called in to assist at the hearing, and in admitting 
that such an advocate could urge a lawful plea against 
himself, the Poet practically confessed the weakness of 
the client for whom "sense" or reason was called into the 
cause. 

Sec. 507. Trial between eye and heart—jury of heart's 
tenants. — 

"Mine eye and heart are at a mortal war, 
How to divide the conquest of thy sight; 
Mine eye my heart thy picture's sight w^ould bar. 
My heart mine eye the freedom of that right. 
My heart doth plead that thou in him dost lie, 
A closet never pierced with crystal eyes. 
But the defendant doth that plea deny, 
And says in him thy fair appearance lies. 
To 'cide this title is impaneled 
A quest of thoughts, all tenants to the heart ; 
And by their verdict is determined 
The clear eye's moiety and the dear heart's part: 



^Ulpian, Dig. 50, tit. 13; Tacitus, Annal. X. 6. 
After making this confession of sensuality, the Poet in the next 
two lines, admits that he experiences contending emotions over 
the fact 

"That I an accessory needs must be 

To that sweet thief which hourly robs from me." (13, 14.) 
But in the XL, Sonnet, he concludes that 
"I do forgive thy robbery, gentle thief, 
Although thou steal thee all my poverty." (9. 10.) 



THE LAW IN SHAKESPEARE. 509 

As thus; mine eye's due is thine outward part, 
And my heart's right thine inward love of heart. "^ 

This sonnet illustrates the custom of the Poet to illus- 
trate his thoughts with legal proceedings, which ever 
seemed at his command. In these lines is presented the 
whole array of legal procedure, in a cause between the eye 
and heart, as contending parties, over the right to the 
image of the Poet's friend, including the pleas filed, the 
impaneling of a jury and the return of the verdict. 

The eye contended that the heart had no right to the 
image, w^hile the heart denied the eye the freedom of the 
sight of the friend. The heart asserted the better title to 
the picture, while the eye denied the plea. To decide the 
title, a jury were impannelled, being the tenants of the 
heart, who, of course would be prejudiced jurors. By their 
verdict, which in the orderly course of such legal proceed- 
ings, would follow the pleas offered by the rival parties, 
it was decided that the eye was entitled to the outward 
vision, while the heart was vested with the inward love 
of the heart of his friend. From the entering of the plea, 
denied by the defendant, to the return of the verdict, this 
Sonnet shows a wonderful familiarity with legal proceed- 
ings in court, and follows the natural order of a trial, at 
law.- 

Sec. 508. No cause alleged against lawful reason. — 

"Against that time when thought shalt strangely pass, 
And scarcely greet me with that sun, thine eye, 
When love, converted from the thing it was, 
Shall reasons find of settled gravity; 
Against that time do I ensconce me here 
Within the knowledge of mine own desert, 



' Sonnets, XLVI, 1, 14. 

= It is surprising that Sewell (2d ed.) and Wyndham, should 
coaclude that " 'cide" was equivalent to "side," meaning that 
the jury would determine between the one side or the other, 
for the term clearly is a contraction of the word "decide," which 
is the very province of a jury, impannelled as this jury was. 



510 THE LAW IN SHAKESPEARE. 

And this my hand against myself uprear, 
To guard the lawful reasons on thy part: 
To leave poor me thou hast the strength of laws, 
Since why to love I can allege no cause. "^ 

The Poet looks forward to the time when his friend 
Southampton will be separated from him, for the latter's 
failure to dedicate poems to him, instead of dramas for 
the multitude. But the reflection that he is still true 
and loyal to his friend and his own conscience will com- 
fort Shakespeare when this time comes. If lawful reasons 
are urged on his part, the Poet will raise his hand, even 
against himself, to enforce the rights of his friend, since 
his cause has the strength of the law, while Shakespeare 
has no right to love him. When law is on one's side a 
good cause of action can always be alleged, but when no 
legal reasons can be given, it is impossible to set forth 
a good plea, in law. This is the conclusion reached in this 
Sonnet. 

Sec. 509. Grant failing for want of consideration. — 

"For how do I hold thee but by thy granting? 
And for that riches where is my deserving? 
The cause of this fair gift in me is wanting, 
And so my patent back again is swerving."^ 

A patent is an exclusive right, granted by an official 
document securing to the grantee the exclusive privilege 
to the thing granted, as a patent to land, by the Govern- 
ment.^ 

To constitute any valid grant, based upon a valuable 
consideration, there must be existing such consideration 
and if the consideration is wanting, the grant would fail.^ 
The Poet intends to illustrate, by the use of the legal grant 
that the loss of his friend's love is owing to the fact that 



' Sonnets, XLIX, 5, 14. 
- Sonnets, LXXXVII (5, 8). 
'Bouvier's Law Dictionary. 
^Tiedeman's R. P. (3(J ed.). 



THE LAW IN SHAKESPEARE. 513 

the consideration of the grant from himself has failed, 
because he is wanting in the personal charms and gifts 
necessary to hold his love. 

Sec. 510. Forfeiture of limited lease. — 

"Not mine own fears, nor the prophetic soul 
Of the wide world dreaming on things to come, 
Can yet the lease of my true love control, 
Supposed as forfeit to a confined doom."^ 

These lines clearly refer to a conditional or determinate 
lease of realty, which is a contract between the lessor and 
the lessee, for the possession of land, for a fixed or deter- 
minate period, for a certain consideration, to be void, or 
forfeited, on the breach of some certain condition.^ The 
Poet had considered his love, formerly possessed, forfeited 
and ended, by Southampton's confinement in the Tower, 
but on the death of Elizabeth, the supposedly forfeited 
lease or tenancy of his friend's love, becomes again a 
vitalized, live estate, subject to no limitations or for- 
feiture, in law. 

Sec. 511. Forfeiting mortgaged property. — 

''So, now I have confess'd that he is thine 
And I myself am mortgaged to thy will. 
Myself I'll forfeit, so that other mine 
Thou wilt restore, to be my comfort still. "^ 

This verse clearly refers to the confinement of South- 
ampton in the Tower and the former verse expresses the 
Poet's desire to be permitted to go his bail, by substituting 



'Sonnets, CVII (1, 4). 

^ White, Mines & Mining Remedies, Chap. XI. 

In the CXXV, Sonnet the same kind of a limited lease is re- 
ferred to, in these lines: 

"Have I not seen dwellers on form and favor. 
Lose all and more, by paying too much rent?" (5, 6). 

'Sonnets, CXXXIV (1, 4). 



512 THE LAW IN SHAKESPEARE. 

,iiis own person for that of his friend, in jail. A mortgage 
is the temporary pledging of land in security for a debt 
due the mortgagee, by the mortgagor.' The land itself, 
not being susceptible of a manual delivery, the mortgagee 
holds the mortgage as an evidence of his right to the 
land as security for his debt, until it is paid. The only 
way to create a mortgage in early times, was to give livery 
of seisin of the freehold estate, thus passing the estate to 
the mortgagee. On breach of the condition of the mort- 
gage, to pay the debt, the estate was forfeited and became 
the absolute property of the mortgagee. And the Poet 
here proffers to forfeit himself as security for his friend, 
recognizing that the condition of the obligation is broken 



^Tiedeman, R. P. (3d ed.). 



INDEX. 



References are to Section*. 



Abatement, pleas in, 473. 
Abstract and brief, 179. 
Accessory before the fact, 315. 
Accomplice, 'peaching on, 219. 
Accomplices, 233. 
Accused, acquittal of, 314. 
Accuser and accused, 188. 
Accusing counselor, 354. 
Accusing one face to face, 353. 
Acquittal, of accused, 314. 
Acquittances, 73. 
Act distinguished from intent, 35. 
Acting as both judge and juror, 

355. 
Action, 238. 
Action of battery, 17. 
Action of slander, 23. 
Action on the case, 155. 
"Action-taking" knave, 448. 
Acts by attorneys, 114. 
Acts of Parliament, 305. 
Adjournment of court, 344. 
Admission against interest, 11. 
Adultery, 256. 
Adversaries at law, 128. 
Adverse party for advocate, 206. 
Advocate, 417. 

Advocate, adverse party as, 506. 
"A friend i' the court," 244. 
Agent, 161. 

Agreement, articles of, 276. 
Alias, 390. 
Alien, 227. 

Amercement by fine, 457. 
Ancestors, 253. 



Answer, 213. 

Answering public laws, 387. 

Antipathetic criminal, lago, the, 
482. 

Antonio's confession of the bond, 
94. 

Antony's suicide, felo de se, 415. 

Antony's tribute to Brutus' char- 
acter, 409. 

Apparitors, duties of, 74. 

Appeal by king's ring, 357. 

Appeal, motion to dismiss, 342. 

Appearance in court, 340. 

Appellant, 187. 

Applying judgment to Judge, 441. 

Apprehend in the fact, 283. 

Apprentice, term of, 222. 

Appurtenances, 467. 

Arbitration, 175. 

Arraignment of Hermione, 143. 

Arrest, 152. 

Arrest on mesne process, 154. 

Arrest upon "hue and cry," 223. 

Arrested in the act, 148. 

Articles of agreement, 276. 

Assault upon Lucrece, 497. 

Assurance, security, 234. 

Assurance, settlement by way of, 
132. 

Athenian law, jurisdiction of, 53. 

Athenian law, parent's right of 
infanticide under, 55. 

Attachment, 151. 

Attainder, 62. 

Attestation, 362. 

Attestation by notary, 496. 

(513) 



514 



INDEX. 



References are 

Attestation by sight and hear- 
ing, 372. 
Attorney, loyalty of, 34. 
Attorneys, 207. 
Attorneys, acts by, 114. 
Attorney-general, 199. 
Audi alteram partem, 221. 
Avouch, 316. 

B 

Bail, 300. 

Bail in criminal case, 429. 

Bankrupt, 109. 

Bargain and sale, 277. 

Bastard, disinheriting, 172. 

Bastard's right of inheritance, 
J69. 

Battery, action of, 17. 

Battle, trial by, 191. 

Bawds not competent witnesses, 
384. 

Bearing false witness, 291. 

Bearing testimony, 262. 

Be it known by these presents, 
108. 

Bencher, 392. 

Benefit of clergy, 297. 

Benefit of sanctuary, 324. 

Bequest, 105. 

Bigamy, 326. 

Bill of lading, 437. 

Bills against ecclesiastics, 249. 

Biting statutes, 295. 

Boiling in oil, torture by, 146. 

Bond, 86. 

Bond, Antonio's confession of, 94. 

Bond, breach of, 80. 

Bond to keep peace, 454. 

Bondman, 280. 

Bourn, 410. 

Brabantio's wrong. Duke's prom- 
ise to redress, 478. 

Brawl, 268. 



to Sections. "■ 

Breach of bond, penalty for, 80. 

Breach of peace, 39. 

Breach of promise, 36-153. 

Breaking laws, 205. 

Bribes, 289. 

Brief and abstract, 179. 

Broken bond, double penalty on, 
491. 

Broker, 228. 

Brutus' crime, idealism the basis 
of, 400. 

Brutus' murder, people's cause 
the motive for, 404. 

Brutus' struggle with his con- 
science, 403. 

Buckingham's trial for treason, 
334. 

Burglary, preliminary examina- 
tion for, 48. 



Caesar's will, 407. 

Cannon of the law, 178. 

Capital crimes, 257. 

Case, lawyer's duty to under- 
stand, 419. 

Case past help of law, 502. 

Cassius' suggestion of the crime, 
402. 

Cassius, the typical criminal 
revolutionist, 401. 

Cause alleged against lawful rea- 
son, 508. 

Challenging prejudiced judge, 
338. 

Charter, 90. 

Chattels, 133. 

Child begot when father not in 
tra quatuor maria, 170. 

Child born in prison, 141. 

Child, status of under Greek law, 
54. 



INDEX. 



515 



References 

Child's marriage, parents' con- 
sent to, 57. 
Children, law of, 405. 
Client wrecked when attorney 

mute, 489. 
Clothing villainy with holy writ, 

318. 
"Come into court," 335. 
Comitia, trial by, 398. 
Commission for office, 347. 
Commitment for contempt of 

court, 245. 
Commitment to jail, 142. 
Common, 70. 

Common, land held in, 293. 
Common-law marriage contract, 

29. 
Commutation of punishment, 101. 
Complaint, 391. 
Compounding crime, 129. 
Compromise, 275. 
Compromising slanders, 7. 
Concubine, 307. 
Condemned woman's privilege of 

pregnancy, 274. 
Condition of wager contract, 418. 
Confession, 50. 
Confession of guilt, 33. 
Confirmation, title by, 302. 
Confiscation of property, 1. 
Consanguinity, 370. 
Consideration, grant failing for 

want of, 509. 
Conspiracy, 216. 
Constable, qualifications of, 42. 
Contempt of court, 6-245. 
Contempt, prosecution for, 433. 
Contract, 270. 
Contract of marriage, 3. 
Contrary to form of law, 287. 
Controversy, judgment on, 167. 
Conveyance by seal-manual, 490. 
Conveyance in use, 102. 



are to Sections. 

Conviction, death without law- 
ful, 322. 
Copyhold, 165. 
Corrupted justice, 330. 
Counsellor, 472. 
Count, extra judicial confession 

on, 50. 
Counterfeit, 231. 
Course of law, 85. 
Court, adjournment of, 344. 
"Court, a friend i' the," 244. 
Court, appearance in, 340. 
Court, contempt of, 6. 
Court, Inns of, 241. 
Court, issue before, 91. 
Court-leet, 127. 
Court, sessions of, 337. 
Court, vacations of, 112. 
Courts of inquiry, law days of, 

483. 
Covenant, 204. 
Craving the law, 97. 
Crime, compounding, 129. 
Crime, motive for, 258. 
Crime of perjury, 71. 
Crime, the basis of Richard's 

character, 310. 
Crimes, 214. 
Crimes unwhipped by justice, 

449. 
Criminal case, standing mute in, 

209. 
Criminal instinct, development 

of, 436. 
Criminals, identification of by 

picture, 447. 
"Crowner's-quest law," 474. 
Custom, shaping laws, 21. 
Cynics views of law, 383.- 



D 



Damage and indemnity of war, 
363. 



516 



INDEX. 



References are 

Day of trial, 212. 

Dead laws, 20. 

Death by judicial sentence, 232. 

Death by the wheel, 397. 

Death penalty for homicide, 374. 

Death without lawful conviction, 
322. 

Debtor overpassing bound, 423. 

Debtor's dungeon, 154. 

Decree of divorce from Kath- 
arine, 349. 

Decrees, 60. 

Deed, label to, 461. 

Deed of gift, 103. 

Defending manslaughter, 379. 

Demesne lands, 424. 

Demise, 329. 

Deprtments of Government 
working harmoniously, 255. 

Deposing, according to law, 190. 

Descent, 120. 

Descent to eldest son, 168. 

Desdemona, sequestration 
against, 481. 

Desdemona's evidence, Othello's 
election to stand upon, 480. 

Desdemona's seduction, proof re- 
quired of, 479. 

Detecting crime, 468. 

Determination of lease, 504. 

Determining causes, 298. 

Development of criminal instinct, 
436. 

Dilatory pleas, 343. 

Disinheriting bastard, 172. 

Disinheriting heir, 303. 

Disputing with lunatic, 317. 

Distraining property, 265. 

Divesting property, 260-443. 

Divine law against murder, 323. 

Divorce, 125. 

Double penalty on broken bond, 
491. 



to Sections, 

Dowry, 66. 

Duchess of Gloster's sentence, 

285. 
Duke's promise to redress Bra- 

bantio's wrong, 478. 
Duties of solicitor, 67. 
Duties of the night watch, 43. 



E 



Earnest to bind bargain, 150. 

Eating flesh contrary to law, 239. 

Ecclesiastics, Henry V's favor to- 
ward, 250. 

Ecclesiastics, laws against, 249. 

Effect of error, 408. 

Effect of legal precedent, 99. 

Egress, right of, 8. 

Election to act in given way, 416. 

Elizabeth's plea of sanctuary, 
311. 

Encroachment on Prince's right, 
427. 

Endowment, 38. 

Enfeoffment, 226. 

Enfranchising one, 75. 

Entailed pi'operty, 123. 

Entailment of estate, 444. 

Equal rank in trial by battle, 
453. 

Equality of justice, 31. 

Equity, 177. 

Errors by opinion bred, 500. 

Estate, 158. 

Estate, entailment of, 444. 

Estate tail upon condition, 304. 

Evidence, 124. 

Evidence by interested party, 
471. 

Evidence, extorting on rack, 82. 

Examination before magistrate, 
46. 

Examining justice, 115. 



INDEX. 



517 



References are 

Exceptions, 10. 
Execution, 159. 
Execution of contract by parties 

interchangeably, 368. 
Executioner, 292. 
Executors, 208. 
Extendi facias, writ of, 111. 



to Sections. 



Factor, broker, 228. 

Failure to speak in criminal case. 

209. 
"Faitors," 240. 
False imprisonment, 44. 
False indictment on suborned 

testimony, 486. 
False testimony, 51. 
Falstaff's commitment to prison, 

247. 
Fee, pleading for, 56. 
Fee-simple, 9. 
Fee-farm, kiss in, 367. 
Fees, of prisoners, 138. 
Felo de se, 415. 
Felon in irons, 381. 
Fighting in King's palace or 

presence, 272. 
Fine, 202. 

Fine, amercement by, 457. 
Fine and recovery, 9. 
Forfeiters, 421. 
Forfeiting mortgaged property, 

511. 
Forfeiture of lands, 110. 
Forfeiture of limited lease, 510. 
Forfeiture, plea of, 84. 
Forgeries, 466. 
Frailty of laws, 22. 
Frankleyn, 422. 
Fratricide, 470. 



G 



Gift, deed of, 103. 

Goddess of Justice abandoning 
earth, 431. 

Goneril, imaginary trial of, 452. 

Grand jury, 15-220. 

Grant failing for want of consid- 
eration, 509. 

Greek law, parent and child un- 
der, 54. 

Guiderius' defense of his crime, 
425. 

Guilt, confession of, 33. 

Guilty conscience, 320. 

H 

Hamlet's legal comments on the 
skull, 475. 

Hamlet's survivorship and dis- 
posal of the crown, 476. 

Hand and seal, 341. 

Hearsay, praising by, 505. 

Heir, 106. 

Henry V's favor toward ecclesi- 
astics, 250. 

Hereditary taints, 376. 

Heresy, 356. 

Hermione, arraignment of, 143. 

Holy human law, 495. 

Homage, 1. 

Homicide, 264. 

Homicide, death penalty for, 374. 

Householder, 47. 

"Hue and cry," arrest upon, 223. 



lago, the cynic antipathetic 

criminal, 482. 
lago's crime against Othello, 484. 
Idealism the basis of Brutus' 

crime, 400. 



518 



INDEX. 



References are 

Identifying criminals by pic- 
tures, 447. 

Imaginary trial of Goneril, 452. 

Impeachment, 117-189. 

Impounding strays, 254. 

Impressment for military serv- 
ice, 361. 

Improper conduct, exceptions to, 
10. 

Incest, 435. 

Intra quatuor maria, child begot 
when father not, 170. 

In manner and form, 64. 

Indemnity of war, 363. 

Indenture, 180. 

Indictment, 145. 

Infamy, 236. 

Infanticide, parent's right of, by 
Athenian law, 55. 

Inheritance, 66. 

Inheritance, bastard's right of, 
169. 

Inheritance by next of blood, 492. 

Inns of court, 241. 

Instigation of Macbeth's crime, 
160. 

Insurrectionary bills, 248. 

Inter-regnum, 301. 

Intent distinguished from act, 35. 

Interrogatories, 182. 

Inventory, 346. 

Invoking justice from Heaven, 
430. 

Issue before the court, 91. 

Italian law against sale of poison, 
462. 



Jail, commitment to, 142. 
Joint and corporate action, 375. 
Jointure, 113. 

Jourdemayn, case of Margery, 
278. 



to Sections. 

Judge cannot right own cause, 

487. 
Judge, challenging prejudiced, 

338. 
Judgment applied to Judge, 441. 
Judgment, plea for, 95. 
Judgment, Portia's, on the bond, 

100. 
Judgment, unreversed, 4. 
Judicial sentence, death by, 232. 
Jurisdiction of Athenian law, 53. 
Jurisdiction regal, 296. 
Jury of heart's tenants, 507. 
Jury system, frailty of, 22. 
Justice abandoning earth, 431. 
Justice, equality of, 31. 
Justice feasting while widow 

weeps, 499. 
Justice, modesty of, 442. 
Justice of Shylock's plea, 96. 
Justice, plea for, 30. 
Justice residing between right 

and wrong, 360. 
Justice, scales of, 52. 
Justicer, 426. 
Justification of one condemned 

by law, 286. 

K 

Keeping the peace, 185. 

"King can do no wrong," 406. 

King, guardian of heirs of for- 
tune, 116. 

King's prerogative, 140. 

King's presence, fighting in, 272. 

King's right to prisoner under 
military law, 217. 

Killing in self-defense, 380. 

Kiss in fee-farm, 367. 



Label appended to deed, 461. 
Laborers and mechanics, statutes 
of, 399. 



INDEX. 



519 



References are 

Lady Grey's suit for husband's 
lands, 306. 

Land held in common, 293. 

Landed 'squire, 173. 

Landlord, 195. 

Lands, forfeiture of, 110. 

Law, a gazing stock, when not 
enforced, 32. 

Law, adversaries at, 128. 

Law, against eating flesh, 239. 

Law and heraldry, 464. 

Law, contrary to form of, 287. 

Law, course of, 85. 

Law, craving the, 97. 

Law, cynic's views of, 383. 

Law days of courts of inquiry, 
483. 

Law giver unable to enforce law, 
488. 

Law is strict, 382. 

Law, jurisdiction of Athenian, 53. 

Law, limitation of, 58. 

Law no respector of persons, 246. 

Law of children, 405. 

Law of God and man, 313. 

Law, penalty of, 61. 

Law, pity the virtue of, 377. 

Law, plunging into, 378. 

Law, poor man's right in, 438. 

Law, prostitution before, 24. 

Law, standing for, 87. 

Law, terms of, 19. 

Law, time overthrows, 135. 

Law, windy side of, 16. 

Lawful act, 121. 

Lawful killing, not murder, 434, 

"Law's delay," 218. 

Laws, frailty of, 22. 

Laws of land service, 237. 

Laws, protection of marital rela- 
tion, 364. 

Law's redress of wrongs, 184. 

Laws, shaped by custom, 21. 



to Sections. 

Laws, that are dead, 20. 

Lawyer's duty to understand 
case, 419. 

Lawyer's points, 147. 

Lease, determination of, 504. 

Lease, forfeiture of limited, 510. 

Lease, tenement, 196. 

Leaving property in use, 411. 

Legitimacy of child born during 
wedlock, 171. 

Lent, law against eating flesh 
during, 239. 

Lent, sales of meat during, 294. 

Letters-patent, 200. 

Levitical law against niece mar- 
rying uncle, 327. 

Levying sums of money, 288. 

Lex terra salica explained, 252. 

Libelling the senate, 432. 

Life tenure, sale of, 456. 

Limitation of municipal law, 58. 

Litigious peace, 439. 

Livery, 206. 

Loving against law and duty, 403. 

Loyalty of attorney, 34. 

Lucrece, assault upon, 497. 

Lunatic, disputing with, 317. 

M 

Macbeth's crime, instigation of, 

160. 
Magical arts, 149. 
Magistrate, examination before, 

46. 
Maiden-rent, 299. 
Maiming, 229. 
Malefactor, 414. 
Malice, 164. 
Manacles, 389. 
Manly combat, trial by, 49. 
Manor-court, 127. 
Manors, 215. 



520 



INDEX. 



References are 

Manors, wasting in military 
preparations, 333. 

Margery Jourdemayn's case, 278. 

Marital relation, laws protection 
of, 364. 

Marriage, contract of, 3. 

Marriage to prostitute, punish- 
ment by, 37. 

Martial law, 263. 

Master, servant assaulting, 130. 

Mercy, Portia's plea for, 93. 

Mesne process, arrest on, 154. 

Military law, king's right to pris- 
oners under, 217. 

Misdemeanors, 14. 

Misprison, 12. 

Modesty of justice, 442. 

Moiety, 89. 

Money paid in earnest, 259. 

Mortgaged property, forfeiture 
of, 511. 

Motion to dismiss appeal, 342. 

Motive for crime, 258. 

Movables, 325. 

Murder, 163. 

Murder, divine law against, 323. 

Murder, lawful killing not, 434. 

Murder to kill murderer illegally, 
458. 

Murder, warrant not protection 
for, 319. 

N 

Nature of Shylock's suit, 92. 
Negligence distinguished from 

willfulness, 137. 
New plea, setting up, 5. 
Night watch, duties of, 43. 
No corrupted justice above, 471. 
No slander to speak the truth, 

460. 
Non-suit, 477. 



to Sections. 

Not guilty, 139. 

Notary, attestation by, 496. 



Oath, subscribing to, 59. 
Oath, witness', 2. 
Open to the law, 281. 
Opportunity spurns right and 

law, 498. 
Othello's election to stand upon 

Desdemona's evidence, 480. 
Outlaw, 269. 

P 
Packing a witness, 134. 
Pardon, plea for, 26. 
Parent and child, under Greek 

law, 54. 
Parents' consent to child's mar- 
riage, 57. 
Parents' right of infanticide by 

Athenian law, 55. 
Parliament, acts of, 305. 
Parricide, 446. 
Partners, 271. 
Party plaintiff, 18. 
Party-verdict, 192. 
Pawn, 373. 

Peace, bond to keep, 454. 
Peace, breach of, 39. 
'Peaching on accomplice, 219. 
Penalty of the law, 61. 
People's cause motive for Brutus' 

murder, 404. 
Per se, 359. 
Perjury, 291. 
Perjury, crime of, 71. 
Pictures, to identify criminals, 

447. 
Piercing statutes, 388. 
Pillory, punishment by, 131. 
Pity the virtue of law, 377. 
Plaintiff, 18. 
Plea for judgment, 95. 



INDEX. 



521 



References are 

Plea for justice, 30. 

Plea for pardon, 26. 

Plea of forfeiture, 84. 

Pleaders, 393. 

Pleading cause, 336. 

Pleading false titles, 385. 

Pleading for fee, 56. 

Pleading for right in wilderness 

without law, 494. 
Pleas in abatement, 473. 
Plunging into law, 378. 
Poison, Italian law against sale 

of, 462. 
Poor man's right in law, 438. 
Portia's judgment on the bond, 

100. 
Portia's plea for mercy, 93. 
Possessed, 197. 
Post, of sheriff, 13. 
Praemunire, writ of, 348. 
Praise by hearsay, 505. 
Precedent, effect of legal, 99. 
Pregnancy, condemned woman's 

privilege of, 274. 
Preliminary examination for bur- 
glary, 48. 
Preliminary hearing, 45. 
Premises, 118. 
Prerogative of King, 140. 
Pressing to death, punishment * 

by, 40. 
Primogeniture, 104. 
Prince's right, encroachment on, 

427. 
Prison, child born in, 141. 
Prisoner, 157. 
Prisoners' fees, 138. 
Privileged man, 365. 
Privity, 332. 
Process, 396. 
Proclamation, 266. 
Proof, 11. 
Proof of facts apparent, 428. 



to Sections. 

Proof required of Desdemona's 
seduction, 479. 

Proof of guilt beyond reason- 
able doubt, 485. 

Property, confiscation of, 1. 

Prorogue, 413. 

Prosecution for contempt, 433. 

Prostitution before the law, 24. 

Punishment by the pillory, 131. 

Punishment by marriage to pros- 
titute, 37. 

Punishment by pressing to death, 
40. 

Punishment by stocks, 235. 

Punishment, commutation of, 
101. 

Punishment for seduction, by 
Venetian law, 27. 

Purging impeachment, 463. 

Purging one's self, 351. 

Pursuivant, 279. 

Q 

Qualifications of constable, 42. 
Quid, pro quo, 273. 
Quietus, 469. 
Quillets of the law, 77. 

R 

Rack, extorting evidence on, 82. 

Rape, 181. 

Ravishment, 358. 

Reasonable doubt, proof of guilt 

beyond, 485. 
Receipt, 72. 
Regress, right of, 8. 
Rejoinders, 371. 
Remainders, 123. 
Repeal, 203. 
Reprisal, 230. 
Reservation in grant, 445. 
Resisting law, 395. 



522 



INDEX. 



References are 

Respondeat superior, not appli- 
cable to king and subject, 261. 

Retainers, 339. 

Reversion, 193. 

Rewards, 321, 

Richard III an embryonic crim- 
inal, 308. 

Richard Ill's crimes prompted by 
his isolation, 312. 

Richard Ill's inherited criminal 
instinct, 328. 

Richard Ill's morbid vanity, 309. 

Right of egress and regress, 8. 

Right warring with right, 369. 

Rightful plea for justice, 503. 

Righting grand jury, 220. 

Rigour of the law, 282. 

Riot, 243. 

Robbery, 224. 

Rotten case, 242. 

Royalties, 198. 

S 

Sanctuary, benefit of, 324. 
Sanctuary, Elizabeth's plea of, 

311. 
Sale of life tenure, 456. 
Sale of poison contrary to Italian 

law, 462. 
Sales of meat during lent, 294. 
Salic law and Henry Vs claim 

to France, 251. 
Scales of justice, 52. 

Scope of justice, 386. 

Seal, 88. 

Seal-Manual, conveyance by, 491. 

Sealing written instrument, 81. 

Seditious bills, 248. 

Seduction. 174. 

Seduction, punishment for, 27. 

Seize, 201. 

Self-defense, killing in, 380. 



to Sections, 

Sentence, 25. 

Sentence of Duchess of Gloster, 
285. 

Sequestration against Desde- 
mona, 481. 

Servant assaulting master, 130. 

Serving clients, 440. 

Sessions of court, 337. 

Setting up new plea, 5. 

Severalty, 70. 

Severe judge, 28. 

Sheriff's post, 13. 

Shylock's plea, justice of, 96. 

Shylock's suit, nature of, 92. 

Signories, 210. 

Simony, 350. 

Single ownership, 166. 

Skull, Hamlet's legal comments 
on, 475. 

Slander, action of, 23. 

Slanders, compromising, 7. 

Solicitor, duties of, 67. 

Source of law, 295. 

Sovereign power, 186. 

Specialties, 73. 

'Squire, 173. 

Standing mute in criminal case, 
209. 

Standing for law, 87. 

Star-chamber, 6. 

Statute-caps, 78. 

Statutes of laborers and mechan- 
ics, 399. 

Statutes of the street, 41. 

Stocks, punishment by, 235. 

Strays, impounding, 254. 

Streets, statutes of, 41. 

Subornation, 156. 

Suborned testimony, false indict- 
ment on, 486. 

Subscribing to oath, 59. 

Summoners, 450. 



INDEX. 



523 



References are to Sections. 



Surety, 68. 

Surmises not proof, 144. 
Swords as laws during Richard's 
reign, 331. 



Taken with the manner, 63. 

Tarpeian Rock, 394. 

Taxes, 290. 

Tender, 98. 

Tendered, 4. 

Tenement, 196. 

Term of apprentice, 222. 

Terms of the law, 19. 

Testament, 107. 

Theft, 119. 

Thievery, justified, 383. 

Third-borow, 126. 

Time overthrows law and cus- 
tom, 135. 

Time wronging wronger, 501. 

Tithes, 183. 

Title, 69. 

Title by confirmation, 302. 

Title by descent and purchase 
distinguished, 412. 

Torture by boiling in oil, 146. 

Treason, 76. 

Trespass, 136. 

Trespass vi et armis, 465. 

Trial at law, 345. 

Trial by battle, 191. 

Trial by battle, equal rank in, 
453. 

Trial by comitia, 398. 

Trial by eye and heart, 507. 

Trial by manly combat, 49. 

Trial day, 212. 

Trial of Buckingham for treason, 
334. 

Tripartite agreements, 225. 

Truant in tht law, 267. 



Trust from fiduciary relation, 

162. 
Truth, no slander to speak, 460. 
Tybalt's death murder at 

Romeo's hands, 459. 

U 

Under gage, 211. 
Underwriting one, 366. 
Uulawful intent, 122. 
Unreversed judgment, 4. 
Unwhipped crimes, 449. 
Use, conveyance in, 102. 
Use, leaving property in, 411. 
Usurer, 83. 
Usurpation, 176. 



Vacations of court, 112. 
Venetian law, against seduction, 

27. 
Venue and offense charged, 651. 
Verdict, 192. 
Verdict based on perjury, 352. 

W 

Wager contract, conditions of, 

418. 
"Wards, heirs of fortune, kings, 

116. 

Warrant no protection against 

murder, 319. 
Warranty, 79. 
Waste, 9. 

Waste upon real estate, 194. 
Wasting manors in military 

preparations, 333. 
Wedlock, legitimacy of child 

born during, 171. 
Wheel, death by the, 397. 



524 



INDEX. 



References are 

"Whipped from tithing to tith- 
ing," 451. 

Wife's legal status, 455. 

Wilderness without law, no right 
in, 494. 

Willfulness, negligence distin- 
guished from, 137. 

Windy side of the law, 16. 

Witchcraft, 149. 

Witness, oath of, 2. 

Witness, packing, 134. 



to Sections. 

Witness to action, 420. 
Witnesses, bawds not competent, 

384. 
Writ, extendi facias, 111. 
Writ of praemunire, 348. 
Written instrument, sealing, 81. 
Wronger wronged by time, 501. 



York's title to the crown of Eng- 
land, 284. 



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