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Commentaries on the Law
IN
SHAKESPEARE
With Explanations of the Legal Terms used in the Plays,
Poems and Sonnets and a Consideration of
the Criminal Types Presented.
ALSO A FULL DISCUSSION OF THE
BACON-SHAKESPEARE CONTROVERSY
BY
EDW. J.WHITE
Author of "Mines and Mining Remedies," "Personal Injuries in Mines,'
"Personal Injuries on Railroads," "Legal Antiquities," Editor
"Third Edition Tiedeman on Real Property," etc.
SECOND EDITION.
THE F. H. THOMAS LA"W BOOK CO.
ST. LOUIS, MO.
1913
fJ/3
Copyright, 1911
by
EDWARD J. WHITE
Copyright, 1913
by
EDWARD J. WHITE
Nixon-Jones Printino Co.
St. Louis, Mo.
What folly I commit, I dedicate to you."
Troilus and Cressida, Act III., Scene II.
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.
PLAN OP THE WORK.
The plan followed 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
contained in each play, can be found. To avoid the use-
less repetition of various law terms presented in the dif-
ferent plays, under each heading will be found, in the
foot notes, the different references to the same law term
or proposition, occurring in the different plays. 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
the only practical method of presenting the subject, so
that it can be readily handled by both laymen and law-
yers, and it is hoped that the method followed will be
found convenient.
E. J. W.
Kansas City, Mo., 1913.
THE BACON-SHAKESPEARE CONTROVERSY,
HISTORY OF THE VAGARY.
Cause and Basis The claims of those who contend that
of the Fallacy. Lord Francis Bacon was the author of
the plays of the immortal Shakespeare,
when a reason for the existence of such a doctrine is
looked for, is to be found in the fact that the hero wor-
shipers of the Eighteenth Century had created an impos-
sible character in the person of Shakespeare, by attribut-
ing to him superhuman knowledge. These extreme claims
are responsible for the conclusion that no one person could
have accomplished such miracles of knowledge as have
been attributed to him. It was then but another step from
the conclusion that he did not possess the literary omni-
science attributed to him, to the discovery of one capable,
of such accomplishments.
The fond Shakespearian Commentators, therefore,
with their absurd claims for the great Bard, are respon-
sible for the refutation of such claims and the next unreas-
onable claim of title, in another than Shakespeare. These
literary hero worshipers, not only in England and Amer-
ica but in Germany,^ as well, in accordance with the na-
tural German tendency to discover profound significance
in the most trifling things,^ found that Shakespeare knew
*Mr. John Fiske states that the key note of the Baconian the-
ory was first sounded by August von Schlegel, who claimed that
Shakespeare had "mastered all things and relations of this
world," and treated his life as a mere fable. Fiske's "Forty
Years of Bacon-Shakespeare Folly," in Atlantic Monthly for No-
vember, 1897, page 652.
' Lowell, Literary Essays, 11, 163.
vm THE LAW IN SHAKESPEARE.
the most scientific facts, connected with medicine, law,
music, invention and the then undiscovered phenomena of
the universe, the psychological facts of human nature and
the whole realm of literature, Christianity and the philos-
ophies of the ancients, better than the most learned of
modern times.
The problem was bound to be suggested, when and
where did this son of a country 'Squire, acquire this vast
fund of accurate and wonderful information? This in-
quiry, when considered in connection with the known
facts connected with his life, was certain to result in the
conclusion that such a vast fund of attributed wisdom
could not consistently be found in one with such oppor-
tunities and training and this led to the additional con-
clusion that, given a man of such attainments, Shakes-
peare was not that man.
The theory and logic, granting the correctness of their
major and minor premise, is not without reason. Their
investigation evidences a great amount of critical inquiry,
in order to find a cause equal to the effect presumed, an
individual capable of the accomplishments credited to
him. But the error of this school lies in accepting the
miraculous results credited to the man.
Referring to the current criticism of his Author, we
find that Dr. Samuel Johnson, in his preface to his edition
of the plays, published in 1768, said: **His adherence to
general nature, has exposed him to the censure of critics,
who form their judgments upon narrower principles.
Dennis and Rymer think his Romans not sufficiently Rom-
an; and Voltaire censures his kings as not completely
royal. "^ This distinguished Editor and Commentator
thus feels called upon to apologize for the Poet, with the
explanation that * * Shakespeare always makes nature pre-
dominate over accident. ' '
But, answering the claims of the Idolators, who assert
" Johnson's Works, vol. II, p. 84.
BACON-SHAKESPEARE CONTROVERSY. IX
that he had mastered the whole realm of human knowl-
edge, this distinguished scholar also observed: ''Some
have imagined that they have discovered deep learning
in many imitations of old writers ; but the examples which
I have known urged were drawn from books translated
in his time ; or were such easy coincidences of thought, as
will happen to all who consider the same subjects ; or such
remarks of life or axioms of morality as float in conver-
sation, and are transmitted through the world in proverb-
ial sentences. ' '*
Thus, it will be seen, that the men of letters of that
period, were criticising Shakespeare for his want of
knowledge and his ignorance and this learned and just
Commentator, without the halo of a hero worshiper, made
due explanations for his shortcomings and also explained
passages that attributed superhuman knowledge to the
man.
Additional evidence could be adduced to show that the
first premise of the Baconizers is unsound, in accepting
the false claims of the Shakespeare Idolators, as true.
The whole trouble with the proposition is that, in dis-
puting the absurd claims of his worshipers, the reaction-
aries went further and attempted to dispute his title to
his works.^ Their error consisted in ever believing or
accepting the false claims of the Shakespearian Idolators,
in the first instance, and in advancing another erroneous
theory to defeat the error of his followers.
Once advanced, however, the fallacy that someone else
wrote the plays, in accordance with the common human
tendency to follow new fashions and fads — ' ^Though they
be never so ridiculous, nay, let them be unmanly, yet are
followed"® — like the slander, based on hearsay, so the
* Johnson's Works, vol. 11, p. 106.
"See Fiske's "Forty Years of Bacon-Shakespeare Folly," in
Atlantic Monthly, November, 1897, p. 652.
'Henry VIII, Act I, Scene III.
X THE LAW IN SHAKESPEAEE.
suggestion, put in motion, even as the rolling snow-ball
gathered volume, until, with the passing years, among a
certain credulous class, it reached the vast proportion of
a settled custom, and thus it has continued, until
** Mountainous error be too highly heap'd,
For truth to over-peer. '
>'T
Issue Not Met As it is always an evidence of the weak-
By Abuse. ness of an argument, to indulge in in-
crimination or abuse, the champions of
the issues upon both sides of this controversy have too
frequently fallen into the error of answering the just
observations of their opponents, based upon careful
research, by unjust criticism or abuse.
The cause of the Baconians is not at all advanced by
referring to Shakespeare as *'The Poacher" and the
^ Coriolanus, Act II, Scene III.
The growing tendency toward agnosticism and doubt is not
wholly confined to the works of the masters in poetry, such as
Homer and Shakespeare, whose titles have been questioned by
erratic scholars of imaginative tendencies, but the works of art
of the great painters are also being questioned by doubters in
the artistic realm, as well.
In July of the present year, someone laboring under an artistic
brain-storm, charged through the London Post that the famous
canvas, by Rembrandt, "The Mill," that for the past centuries
has been recognized as one of his worthiest creations, was really
painted by a Dutchman named Seghers. This alleged discovery
was based upon the name claimed to have been plainly visible on
the picture, after the removal of the varnish. A number of emi-
nent artists were ready to believe the doubt and to rob Rem-
brandt of the title that posterity had recognized in him, to this
picture. But following this news, in the Post, the eminent Rem-
brandt authority. Dr. Bode, was quoted by a writer in the
Atheneum, to the effect that he had seen the picture immedi-
ately after the removal of the varnish and that no such name
appeared on the picture. (Literary Digest, Sept. 2, 1911, pp. 354,
855.) .
BACON-SHAKESPEARE CONTROVERSY. ' XI
''Stratford Butcher-Boy,"® nor does it answer the legit-
imate suggestions or inferences of the Baconians, based
upon honest research and fair investigation, to term them
"A troop of less than half educated people '';® to assert
that Delia Bacon was really insane, when she wrote her
erratic book; that her imitators **have been chiefly weak
minds of the sort that thrive upon paradox, closely akin
to the circle-squarers and inventors of perpetual mo-
tion. "^^
When such a scholar as Emerson would refer to the issue
as one ''Opened so that it can never again be closed, "^^
at least until positive proofs on the one side or the other
can be produced, it is useless for either side to indulge in
this species of evasion. Critical individuals, of sceptical
tendencies have and will continue to seek a cause equal
to the effect they find existing; a man, adequate to the
result to be accounted for and so long as there is honest
research and study of the question, the inferences and the-
ories of those who doubt Shakespeare's authorship, ought
to be given the serious attention of those who incline to
the traditional authorship of the plays and it is in the
interest of free scholarship and fair investigation that
the controversy should be squarely met and carefully
considered.
^ Delia Bacon's "Philosophy of the Plays of Shakespeare Un-
folded."
"Brandes, "William Shakespeare.*'
"John Fiske's "Forty Years of Bacon-Shakespeare Folly," in
Atlantic Monthly, for November, 1897, p. 636.
" This observation of Emerson noted a condition and was not
necessarily an opinion based upon existing proof. This state-
ment is in keeping with the unorthodox tendency of Emerson's
mind and loses sight of the real fact that a title established by
contemporary testimony and resting secure through a lapse of
centuries, cannot be over-thrown by mere negative evidence, but
that the burden rests upon those asserting the adverse title and
the proof must be clear and convincing before the vested right
of the ancient title will be set aside.
Xii THE LAW IN SHAKESPEAEE.
However, the framing of an issue is a far different thing
from the proof of such issue, by competent evidence and
the observation of Emerson that such an issue, as to a
title based upon credible contemporary testimony, cannot
be closed so long as doubts may be expressed as to such
title, is not in keeping with the rule of evidence which
places the burden of proof upon those asserting an adverse
title, to establish the adverse claim by clear and convinc-
ing proof and protects a title and right vested and based
upon an ancient claim, against mere negative testimony of
the weakness of such claim.
The Syndicate Those who oppose the traditional author-
Theory, ship of the plays of Shakespeare ad-
vance two principal theories, one, that
the plays were written by a syndicate of poets and play-
writers, and the other, that they were written by one
man, but this man was Bacon, not Shakespeare.
Principal among the advocates of the syndicate the-
ory, is Appleton Morgan, of New York, who, in 1880, in
his book, the ''Shakespearian Myth," fully set forth the
theory of a number of writers of the plays, and Wm. H.
Edwards, and others have followed this idea, in later
works.^^
There is undoubted evidence, in some of the plays, of
the work of other hands than Shakespeare's. Henry VHI
was, in part, unquestionably written by Fletcher ^^ and
perhaps parts of it by Massinger, yet there is no doubt
but what the bulk of the play was by Shakespeare.^* The
earliest edition of ''The Two Noble Kinsmen," in 1634,
ascribed the play to "The memorable worthies of their
time ; Mr. John Fletcher and Mr. William Shakespeare. ' '
These plays, as Doctor Rolfe concludes, were no doubt
""Shaksper not Shakespeare," 1900, and see, also, "A Cam-
bridse Graduate," 1903.
" Rolfe's Henry VIII.
^*Ante idem.
BACON-SHAKESPEARE CONTROVERSY. XUl
begun by Shakespeare, but for some reason were laid
aside and left unfinished and patched out by others.
But while some fragments of evidence may be found to
show that others than Shakespeare may have had a hand
in writing some parts of some of the plays, this is no evi-
dence from which his authorship of the other portions or
of other plays can be denied. Other collaberators may
have assisted him, or finished some few plays that he left
anfinished, but if they did, they waived their right and
title by letting these plays be published in his name. He
was evidently the head and active member of any such
partnership and any others were but silent and unknown
members of the firm. He was the master genius who
shaped the course of the firm's product and rendered the
partnership of insignificant importance. And, if problem
enough to determine what individual wrote the plays,
why multiply the difficulties, by looking for innumerable
authors? If Shakespeare's title were based upon a mir-
acle, then it would be a mere combination of miracles
that others should have combined with him, to produce
the plays, bearing such unmistakable evidences of the
genius of one and the same individual. ^^
Origin of the As the Wolfian theory, asserting an
Baconian Theory, adverse title or claim to the Homeric
poems, originally suggested by the
philosopher Vico, in a moment of passing doubt or fancy,
was later specially enlarged upon by the gifted Freidrich
Wolf,^^ and a respectable number of critics followed this
" Even Voltaire acknowledged that "All the plays of the divine
Shakespeare are in the very same taste." Voltaire's Works IX,
p. 137.
"In the "Prolegomena ad Homerum," published in 1795, Wolf
attempted to demonstrate that the Homeric poems were not the
work of any one man, but were a compilation of poems written by
various minstrels and sung in public assemblies, while the art of
writing was but little known.
XIV THE LAW IN SHAKESPEAEE.
fallacy — until historians and scholars of succeeding years
by a great mass of competent evidence, successfully de-
feated this theory and established Homer's title — so the
passing uncertainties and doubts expressed by M. de Vol-
taire, in his criticisms of Shakespeare's plays, were later
taken up and analyzed by Horace Walpole and with his
fervid imagination and little care for the existing facts
of history, some real doubts were expressed as to his own
countryman's distinguished life work, although he had
elsewhere defended this work against the unjust attacks
of this same Voltaire.^^
In the preface to the second edition of ''The Castle
of Otranto" and ** Historic Doubts on the Life and Reign
of Richard HI, ' ' Walpole first expressed the theories con-
nected with Shakespeare's life and writings that have led
to the present Baconian theory.^^
The researches of Edmond Malone, the respectable
editor of Shakespeare's plays, and literary detective,
whose work led to the discovery of the Chatterton and
Ireland forgeries, may be said to have thrown a mere
cloud or shade of uncertainty over the authorship of
Shakespeare, which has also been utilized by the Bacon-
ians.^^
And in Emerson's Essay on Shakespeare delivered in
1835, occurs the following passage : ''I cannot marry this
man to his verse. Other admirable men have lived in
some sort of keeping with their thought, * * * but
"Castle of Otranto, (2nd ed.) preface, 20.
" Speaking of these works, in his book "Shakespeare and Vol-
taire," Prof. Lounsbury, of Yale, observes: "In this very volume,
dealing with Richard III, appears the first example of that long
line of absurd theories connected with Shakespeare's life and
writings."
" Life of Edmond Malone, with Selections from his Manuscript
Anecdotes, by Sir James Prior: Malone's Genuineness of the
three plays of Henry VI; Literary Digest, for July 8, 1911, p. 61.
BACON-SHAKESPEARE CONTROVERSY. XV
this man is in wide contrast, * * * Shakespeare is a
voice merely — who this singer was, we know not."
These ''Historic Doubts" of Walpole, Malone's shade
of uncertainty, brought out as a result of his researches
and Emerson's unorthodox query, suggested by his failure
to reconcile the life history of Shakespeare, with his work,
as a result of which he was agnostic as to the man's work
and preferred to take the poet's name as the mere syn-
onym for the work that was known as his, may be said to
represent the foundation for the mad quest of Miss Delia
Bacon, who sought to demonstrate, in her ''Philosophy of
the Plays of Shakespeare Unfolded, "^^ that Lord Francis
Bacon, rather than Shakespeare, was the author of the
plays known as Shakespeare 's.
But about a year before Miss Bacon's book appeared,
' ' a Mr. William Smith, " in a privately published letter to
Lord Ellesmere, published in London, in 1856,^^ outlined
his ideas concerning Shakespeare's inability to have writ-
ten the plays accredited to him, and expressed his views
as to Lord Bacon's excellent qualifications for the work.
Miss Bacon had written a series of magazine articles pre-
ceding her book, however, and in the book she labors at
some length to convince the public that she was the in-
ventor of the Baconian theory, and Fiske^^ and other his-
torians seem willing to accord to her the doubtful credit
of having originated the theory.
The observations that gave rise to the "doubts"; the
' ' doubts, ' ' upon which the later theory is founded and the
analysis and growth of this theory, are not without
interest.
'' Published In 1857.
" See Interesting article by John H. Clifford, in Americana, Vol.
XIV, tit. "Shakespeare, Authorship of."
" "Forty Years of Bacon-Shakespeare Folly," by John FIske, In
Atlantic Monthly, Nov. 1897, p. 636.
XVI THE LAW IN SHAKESPEARE.
Voltaire's Criticism The iconoclast M. de Voltaire, with
of the Plays. his aptitude for historical investi-
gation and analytical research, not-
withstanding his known antagonism and unfairness to-
ward English authors, never questioned Shakespeare's
authorship of the plays, but his criticism was leveled at
the grossness found mingled with the many evidences of
genius in the plays. ^^
He regrets that ''"We find so much more barbarism than
real genius in the works of Shakespeare, ' '^* but again ad-
mits that ''His genius pierced through the barbarous
darkness of the times, as that of Lope de Vaga did in
Spain. "25
In his "Ancient and Modern Tragedy," forgetting
this barbarous period in which Shakespeare lived and
wrote and that ghosts were commonly believed in at that
time, this matter of fact Frenchman leveled this most ex-
travagant criticism at Shakespeare, because he introduced
the ghost into the play of Hamlet : "It seems as if nature
took pleasure to unite in the head of Shakespeare all that
we can imagine great and forcible, together with all that
the grossest dullness could produce of everything that is
most low and detestable. ' ' ^^ Then admitting that the
"ghost scene" has always had a most stirring effect on
the English, in analyzing the plan of this tragedy, Vol-
taire suggests the quandary "How could so many won-
derful things be generated in one head? For it must be
acknowledged that all the plays of the divine Shakespeare
are in the very same taste. "^^ Thus, it will be seen, that
notwithstanding his abuse of Shakespeare for combining
in his plays the most uneven facts of science, literature,
'^ But he did not fail to avail himself of Shakespeare's labors.
See Prof. Lounsbury's "Shakespeare and Voltaire," pp. 143, 159.
"Works of Voltaire, Vol. XXX, p. 59.
''Ante idem.
»• Works of Voltaire, Vol. XXXVII, p. 137.
« Tragedy of Hamlet, Voltaire's Works, Vol. XXXIX, p. 137.
BACON-SHAKESPEARE CONTROVERSY. XVll
and the beauties of nature, along with the obscene and
licentious and the superstitions of his age, the sceptic
Voltaire, while berating him for many of the same traits
that Voltaire himself possessed cannot resist the tempta-
tion to express a doubt as to his ability to produce the
beauties, although willing to condemn him for the author-
ship of the base or ignoble found in the very same play.
But this passing doubt or wonder on Voltaire's part did
not even in his dubious mind arise to the dignity of a
denial of Shakespeare's authorship of the plays, for in
a following paragraph of the same study, he says: *'The
astonishment occasioned by the first wonder will cease
entirely when it is known that Shakespeare has taken the
subjects of all his tragedies from history or romances;
and that he has done nothing more than turn into dia-
logues the romances of Claudius, Gertrude and Hamlet,
written entirely by Saxo, the grammarian, to whom the
whole glory of the performance is due. ' '^^
This unbeliever in miracles would thus reasonably ac-
count for the origin of the plays, by the author to whom
they were accredited, rather than express a doubt as to
Shakespeare's authorship, in the light of the known facts
of history and contemporary testimony and by explana-
tion of the seeming divine creation of the beautiful in
the plays, he preferred to answer the claims of the
Shakespearian Idolators by citing the known facts of his-
tory to demonstrate that he was a common purloiner of
the works of his predecessors, instead of questioning his
composition of the plays.^®
But let us examine the character of the first witness
to express any ' * doubts " as to the characters in the plays
^ Ante idem.
"As remarked by Thackeray (The Virginians, p. 495), the
works of Shakespeare commenced to grow vastly more popular,
in England, after M. de Voltaire attacked him, notwithstanding
the many barbarisms that could not but shock a polite auditory.
XVlll THE LAW IN SHAKESPEARE.
of Shakespeare, and then proceed to examine the
^'doubts" themselves, as history presents them.
Walpole and His Horace Walpole, the first known
Historic "Doubts.** prominent individual to doubt
Shakespeare's characters, expressed
his doubts about a century and a half after the plays
were written. If he sought to express other than mere
** doubts," upon the subject that he addressed himself to,
his expressions would of course be incompetent, because
purely hearsay, but the expressions of this first witness
are but * ' doubts, ' ' at best.
But even if the witness knew facts, instead of mere
"doubts" or dreams, the faith with which such doubts or
dreams are to be received depends, in no small measure
upon the character, for reliability of the "doubter" or
dreamer, himself.
A scholar of some attainments, Walpole was rather a
traveled savant, and man of social distinction, than one
of accurate information or reliable authority upon any
subject. Living to a ripe old age his chief object was the
erection and maintenance of his famous mansion, * ' Straw-
berry Hill" and his principal literary production was his
"Letters," valuable only as interesting pictures of the
social and fashionable gossip of his period, but admittedly
marred by the palpable want of truthfulness running
through them. Judged by an accurate and truthful meas-
ure of the man, his "doubts" upon such a subject are of
but little value.
Speaking of the man, Walpole, the historian Macaulay
says : ' ' The faults of Horace Walpole 's head and heart
are indeed sufficiently glaring. His writings, it is true,
rank as high among the delicacies of intellectual epicures
as the Strasburg pie, among the dishes described in
Almanack des Gourmands. But as the pate de foie gras
owes its excellency to the disease of the wretched animal
which furnishes it, and would be good for nothing if it
BACON-SHAKESPEARE CONTROVERSY. xix
were not made of livers preternaturally swollen, so none
but an unhealthy and disorganized mind could have pro-
duced such literary luxuries as the works of Walpole.
* # * r^Yie confirmation of his mind was such that what-
ever was little, seemed to him great, and whatever was
great seemed to him little. Serious business was a trifle
to him, and trifles were his serious business. ' '^^
In the preface to the second edition of his story, ''The
Castle of Otranto," Walpole apologizes for having
''offered his work under the borrowed personage of a
translator, ' ' in the first edition. He proceeds at length to
answer Voltaire's criticism of Shakespeare — although
entirely foreign to his subject — and asserts that "this
great master of Nature, Shakespeare, was the model I
copied." He also professes that "I had higher authority
than my own opinion of this conduct ' ' and closes his pref-
ace as follows: "The result of all I have said, is to shel-
ter my own daring under the canon of the brightest
genius this country, at least, has produced. * * * I
should be more proud of having imitated, however faintly,
weakly, and at a distance, so masterly a pattern, than to
enjoy the entire merit of invention, unless I could have
marked my work with genius, as well as with originality. ' '
In this preface Walpole does not express the slightest
doubt of the authorship of the plays of Shakespeare. He
defends the plays from the criticism of Voltaire, whom he
classes as a genius, "but not of Shakespeare's magni-
tude. ' ' His modeling of his romance after Shakespeare 's
works was the explanation of the ideal that he had en-
deavored to approach in his work, as did Rowe,^^ and
other authors of the period, for an acquaintance with the
plays produced veneration for the great "monarch of
thought" and they adopted him as their standard.
^<* Macaulay's Essay, on Letters of Horace Walpole; Seely's
Horace Walpole and his world; Dobson, Horace Walpole.
»* Johnson's Life of Rowe, 348, 350.
XX THE LAW IN SHAKESPEAEE.
But if the explanation, in this preface, by any stretch
of the imagination, could be drawn into a statement that
in publishing his book in the name of another, he had but
followed the course of Shakespeare, this would be a state-
ment wholly without facts to support it, for Shakespeare's
plays were published in his name and it is the man
Shakespeare himself, upon whom he bestows his fulsome
praise, as the author of the plays.
In ''Historic Doubts on the Life and Reign of King
Richard III," Walpole speaks of Shakespeare's tragedy
of that reign as ''a tragedy of imagination" ;^2 he pro-
ceeds to show that Richard was not guilty of the crimes
that Shakespeare imputes to him ; shows that while Rapin
conceived doubts, but failed to pursue them, he rather
turned from certainties to doubts^^ and finally sums up
Shakespeare 's tragedy as follows :
''It is evident from the conduct of Shakespeare, that
the house of Tudor retained all their Lancastrian preju-
dices, even in the reign of queen Elizabeth. In his play of
Richard the Third, he seems to deduce the woes of the
house of York from the curses which queen Margaret had
vented against them ; and he could not give that weight
to her curses without supposing a right in her to utter
them. This, indeed, is the authority which I do not pre-
tend to combat. Shakespeare 's immortal scenes will exist,
when such poor arguments as mine are forgotten."^*
In denying that the two princes were murdered in the
Tower, he quotes from Lord Bacon and observes :
"Lord Bacon owns that it was whispered everywhere,
that at least one of the children of Edward the Fourth
was living. ' '^^
In view of Walpole 's quotation of Lord Bacon for an
^2 Preface to "Historic doubts on the life and Reign of Richard
III," p. 13.
^' Ante idem., p. 21.
»* Ante idem., p 119, 129.
^^ Ante idem., p. 80
BACON-SHAKESPEARE CONTROVERSY. XXI
entirely different state of facts than that which the play
of Shakespeare presents, it is difficult to conceive how
later followers could connect Bacon with the authorship
of a play presenting facts he said were not true, but this
illustrates how an erroneous theory once advanced will be
followed and enlarged upon by others.
Walpole connects the name of Lord Bacon, with his
''Historic Doubts," to show that many doubted if the two
sons of King Edward the Fourth were really murdered
in the Tower^^ and elsewhere he quotes from Bacon to con-
firm others of his '' doubts" as to other alleged crimes of
King Richard.^^
He does not extend his speculations or doubts to the
authorship of Shakespeare's play but contents himself
with the effort of trying to disprove the crimes and per-
sonal history of one of the Poet's most prominent charac-
ters, King Richard HI, by fragmentary bits of history cal-
culated to throw doubt and uncertainty about the truth-
fulness of this character, as the play presents it.
Beginning his ''doubts" as a literary exercise to cure
a bad case of idleness, "Walpole rejected the competent tes-
timony of contemporaries, because they ' ' could know the
facts alleged but by hearsay ";^^ he constructed a defense
for King Richard as a criminal lawyer will defend a guilty
client, by emphasizing some small circumstances calcu-
lated to show his innocence and use this to cover up the
most cogent proof of his guilt, and he continued this
course until, by habit, as Sir Walter Scott observed, his
"doubts later acquired in his own eyes the respectability
of certainties, in which he could not brook controversy.""*
'« Ante idem., p. 56.
" Ante idem., pp. 63, 66, 75, 93, 105, 106, 131, 136.
»" Historic Doubts, etc., p. 128.
"* Biog. Notices and c, Horace Walpole.
See, "An answer to Walpole's Doubts," by F. M. Guidikins, pub-
lished in 1768, London Monthly Rep. 1768, Vol. 1, p. 401., and also,
"Remarks on Walpole's Doubts," in Archaeologia (Vol. II), by
Rev. Robt. Mashers, 1772.
XXU THE LAW IN SHAKESPEAEE.
Of course it was an easy matter for such writers as
Delia Bacon, to apply Walpole's arguments concerning
the crimes and life of Richard III to the author of the
tragedy, for it is but a step from the denial of the work
of the creator to the denial of the creator, and many of
skeptical tendencies are always ready to take this step.
Delia Bacon's Book, While Walpole had expressed
Presenting the ** doubts,'' as to one of the char-
Baconian Theory. acters of Shakespeare, a century
later many of his arguments
were adopted and presented by Miss Delia Bacon of Tall-
madge, Ohio, in her ''Philosophy of the Plays of Shakes-
peare Unfolded," in which she zealously advocated the
theory that Sir Francis Bacon — said to be a distant rela-
tive of Miss Bacon — was the author of the plays of
Shakespeare. She may be said to be the first to give this
idea currency, therefore, although she did not originate
the theory."
As "Walpole warned his readers against what he termed
his ''literary prophanation, " in their eyes, because of
their adherence to the established and received idea con-
cerning the crimes and life of Richard the Third, so Miss
Bacon expressed her doubts about being able to shake
the faith of her readers in the belief in a character they
had been taught to revere so highly as they had that of
Shakespeare.
Dealing principally in promises and announcements of
what will later be presented when the veil shall be finally
removed, in lieu of tangible evidence, this author grounds
^'^"The earliest recorded surmise that the real author of the
Shakespearian writings was Francis Bacon, appears to have
been that of a 'Mr. William Smith,' in a privately printed letter
to Lord Bllesmere, in 1856," a year before Miss Bacon's book was
published. See article by John H. Clifford, in Encyclopedia
Americana, Vol. XIV.
BACON-SHAKESPEARE CONTROVERSY. XXlll
her argument upon a deep hidden design, running through
all the plays, from which she evolves her theory that Lord
Bacon v^rrote the plays and purposely concealed his iden-
tity. She concludes that but for the clairvoyant or spirit-
ualistic powers possessed by her, to ferret out this deep
laid plan — to evolve something from nothing and see that
which does not exist, in fact — ^that the deep design would
be forever lost.*^
According to Miss Bacon, Lord Bacon, used only such
language as had double meanings, and under a mountain
of false premises he buried his real meaning deep down
in the subject-matter of the plays for selected auditors
only, or for **wits of such sharpness as can pierce the
veil.''*^ She selects isolated passages from the plays, as
chapter headings and gives them hidden and mysterious
interpretations; assays to find hitherto undiscovered
meanings in the Baconian traditions and draws many
parallelisms from Lord Bacon's rhetoric, when compared
to that of Shakespeare;*^ unduly presents Shakespeare's
incompetency and want of fitness to write the plays and
Lord Bacon's eminent qualifications and ends where she
began, without evidence to base her conclusion upon, that
Bacon wrote the plays of Shakespeare.
From the play of Julius Caesar she draws the conclusion
that it had for its object the destruction of tyranny in
Government and was prompted and shaped, in its dif-
ferent parts, by one deeply versed in the science of gov-
ernment and that the author of this play possessed wis-
dom far superior to that possessed by the Poet. But in
following the bent of her wild theory, she fails to look at
the plain and simple fact that aside from the stage setting
and dramatic arrangement of this play, Shakespeare re-
produced, almost as an entirety, the history of the assas-
""If this design be buried so deeply is it not lost then?" (Phil,
of the Plays of Shakespeare Unfolded, p. 31.)
*' Ante idem., p. 59.
" Ante idem., pp. 63, 100.
XXIV THE LAW IN SHAKESPEARE.
sination of Caesar as given by Plutarch and other histo-
rians. Read in connection with Plutarch 's Lives, these at-
tributed deep laid plans of statesmanship must be laid to
Plutarch, not to the author of this play.
These observations apply equally to the alleged deep
laid plans, which this author finds, concerning the exposi-
tions on "Martial Government," and ''Insurrections
Arguing," in ''Coriolanus." The Poet but followed the
description of this stern old Patrician as portrayed by
Plutarch and there is nothing so abstruse or unnatural in
this play as to justify any question of Shakespeare 's abil-
ity to write it.
She presents the reference to astrology, in the tragedy
of Lear, to show that Bacon used practically the same
reference, in his works,"" but it does not follow, from this,
that Bacon wrote this tragedy, which is so entirely differ-
ent from the things that he was known to write. The
ideas of the scholars of this period, on such subjects,
were current topics of the day, and those who moved in
the same circle were no doubt familiar with the ideas and
expressions of other contemporaries on the same subject.
And these observations apply to the other instances from
the plays where the few scattered, random thoughts are
taken up and compared to similar expressions used by
Bacon. She admits that Bacon wrote so that King James,
''A man of some erudition,"*^ could not understand his
''Novum Organum," but she neglects to state that the
King was able both to understand and enjoy the simple
love talk and truly human poetry and philosophy of
Shakespeare 's plays.
In speaking of Jonson's friendship for Shakespeare —
before reaching the point where she seeks to discredit the
latter — she says:
"It is enough to say, here, that he chanced to be hon-
**Ante idem., pp. 129, 130.
« "Philosophy of Plays of Shakespeare Unfolded," p. 181.
BACON-SHAKESPEARE CONTROVERSY. XXV
ored with the patronage of three of the most illustrious
personages of the age in which he lived. He had three
patrons. One was Sir Walter Raleigh, in whose service
he was; one was the Lord Bacon, whose well nigh idol-
atrous admirer he appears also to have been; the other
was Shakespeare, to whose favor he appears to have owed
so much."*^
Strange, isn't it, that this former '* butcher-boy and
poacher "reached such a position that he would be classed
along with Sir Walter Raleigh and Lord Bacon — two of
the most distinguished scholars of the day — and yet be so
utterly incompetent to perform work for which they were
so well qualified?
But Miss Bacon not only admits that Shakespeare was
a patron on a par with her idealized Lord Bacon, when it
came to Jonson's friendship, but, as if piqued because
Jonson had spoken with such affection for Shakespeare —
and not of her distinguished kinsman — she further ob-
serves :
''With his passionate admiration for these last two
stopping only 'this side idolatry' in his admiration for
them hoth/"^'' and thus attempts to apply the testimonial
of friendship from Jonson for Shakespeare alone also to
her remote kinsman. But while thus willing to misquote
the testimony to assist her client 's cause, when it suits her
purpose, in the next breath, to attempt to discredit Shakes-
peare she insists that because Jonson had not mentioned
the fact that Shakespeare had met Bacon, that Jonson's
evidence of his affection for Shakespeare ought to be dis-
carded, thus making his testimonial of friendship for
Shakespeare apply to Bacon. But this is common for
special pleaders to abandon, with such freedom, an author-
ity they elsewhere invoke and it is in keeping with the
common tendencies of such zealots to blow hot and cold
*• Ante idem., p. 21.
" Ante idem., p. 21.
XXVI THE LAW IN SHAKESPEARE.
at the same time, as does this authoress who in her intro-
duction raises Bacon to the elevated plain occupied by Sir
Walter Raleigh and Shakespeare and later resorts to Em-
erson's skepticism and meaningless phrase, which she par-
aphrases into the platitude that "this Pierre or William
is but a sound when all is done. ' '*^
In view of these inconsistencies, is it not far fetched to
conclude that Lord Bacon wrote the plays anonymously,
to avoid such punishment as that which was meted out to
Sir Walter Raleigh? His known writings on philosoph-
ical and dry legal subjects occupied the greater portion of
his life, and his mind was not engrossed with either trag-
edy, poetry or comedy, such as Shakespeare was known
to have written.
As if realizing, after writing 560 pages, that she had
failed to establish a title for her kinsman to Shakespeare 's
plays. Miss Bacon, in conclusion apologizes because she
*'has labored throughout under this disadvantage" that
her theory is ''directly opposed * * * to facts which are
among the most notable in the history of this country;
and not only facts, sustained by unquestionable contem-
porary authority, but attested by public documents — facts,
which history has written with her pen of iron on the
rocks forever."**^
And with this admission of the evidence thus prepon-
derating against her asserted title does this special plead-
er— so resourceful in occult and undiscovered theories
and surmises, in the face of such a mass of credible testi-
mony— offer a full confession and avoidance of these ad-
mitted established facts, or does she enter a general de-
nial? She does neither, but follows in her ''Conclusions,''
with a general affirmation and approval of her opponent 's
case, because:
"The demonstrated fact must stand. The true mind
** Ante idem., p. 50.
*» "Philosophy of the Plays of Shakespeare Unfolded," p. 561,
BACON-SHAKESPEARE CONTROVERSY. XXVU
must receive it. We must take our facts and reconcile
them, if we can and let them take care of themselves, if
we cannot. ' '^°
In other words, a special counsel does not guarantee
his client's cause, but takes the case as he or she finds
it, subject to its inherent weakness, and when, as in this
instance, it is impossible to establish a worthless claim to
another's property, one can only abandon the cause, if
sophistry will not push the claim along, in the face of ad-
mitted facts. A pretty weak plea, this.
By way of further apology for the weakness of her
client's cause, in the face of her promises and assurances,
at the commencement of her plea, she further observes :
*' Those very facts, and those very historical materials,
on which our views on this subject have been based, hith-
erto, are that which is wanting to the complete develop-
ment of the views contained here."^^
So, following the admission, by way of concluson, be-
cause of the abundant evidence to establish Shakespeare 's
title and the weakness of her client's cause, this special
pleader rests her cause rather upon the absence of evi-
dence than the real facts to base her kinsman's title upon,
and leaves the rest to sentiment and wild conjecture.
Her client's cause must fall with this admission of a
total lack of evidence upon which to base a claim of title
vested in another by the established proof. Nor is it a
legitimate plea to urge, in the absence of competent proof,
that the one without title would have asserted a claim,
but for fear of duress. Duress could not transfer a title,
vested in another and before this plea could be received
there must have been a valid title lost, unasserted or re-
linquished, because of coercion or fear. The condition
precedent to the assertion of such a plea is the right or
title in the person for whom such a plea is urged. Lord
^ Ante idem., p. 562.
" Ante idem., p. 563.
XXVIU THE LAW IN SHAKESPEARE.
Bacon's case must fall on these admissions of his repre-
sentative, in this work, for nothing in the way of tangible
proof is brought forth to sustain his claim to Shakes-
peare's plays.
Growth of Issue The Baconian theory, as such, was
Following Delia first elaborately advanced in the above
Bacon's Book. named volume by Miss Delia Bacon
and other similar books followed thick
and fast after her book blazed the path for such ex-
cursions into the realm of doubt and speculation, concern-
ing the authorship of Shakespeare 's plays.
The book of Judge Nathaniel Holmes, ^^ *'The Author-
ship of Shakespeare, ' ' also championing the Bacon theory,
increased the importance of the discussion. Ignatius Don-
nelly published his books presenting an alleged Cypher,
running through the plays in ''The Great Cryptogram"
and the '' Cypher in the Plays. ' ' The same line of inquiry
was followed by Dr. 0. W. Owen, of Detroit, Michigan;
Isaac Hull Piatt, of New York, and Mr. R. M. Bucke, of
London, Ontario. And these authors, along with the
works of Mrs. Potts, ''Parallelisms with Bacon," Judge
Webb's "Mystery of William Shakespeare," Reed's "Ba-
con vs. Shakespeare," Mark Twain's "Is Shakespeare
Dead," Sir Edward Lawrence's "The Shakespeare
Myth," and the publications of the "Bacon Society," may
be said to fairly represent the Bacon side of the contro-
versy.
Of the 2000 or more books and periodicals printed in
the English language concerning Shakespeare, prior to
the year 1910,^^ it is little wonder that different kinds of
freak ideas and wild theories have been advanced con-
cerning both the man and his work. The growth of the
'^ 1866, 1886.
^'Papers of the Shakespeare Society, of New York; Digesta
Shakespeariana by Appleton Morgan; Thimm's Shakespearicina,
from 1564 to 1871.
BACON-SHAKESPEARE CONTROVERSY. XXIX
literature upon the Bacon-Shakespeare controversy illus-
trates how a fad, when connected with such a popular
subject, will grow.
According to Wyman's '^Bibliography of the Bacon-
Shakespeare Controversy, " up to the year 1884, there had
been published 255 books, pamphlets and essays concern-
ing the authorship of the plays. In America, 161 volumes
had been published and in England 69. Of these publica-
tions 73 favored the Baconian theory; 65 left the ques-
tion undetermined and 23 only favored Shakespeare's
title to the plays. It is probable that the proposition has
remained much the same since this date, yet all this liter-
ature and the efforts of Dr. Orville Owen, to fish up some-
thing tangible from the River Wye, has not advanced the
cause of Lord Bacon a jot or tittle, since Walpole first
expressed his doubts about one of his principal characters
and Delia Bacon applied his doubts to the great Master
himself. The River "Wye is a stream that modern hy-
draulic engineers cannot control even for a few hours,
with all the modern inventions and improvements in en-
gineering science and that Lord Bacon should have exca-
vated the bed of this stream as a final resting place for
his ''Cypher" and that his wonderful engineering feat
should escape the notice of any of his contemporaries is
of course ridiculous, yet it is just as reasonable as that he
wrote the plays of Shakespeare.
It is not possible in the space allowed to this article,
to give anything like a correct review of even the most
exceptional of the various Bacon books, following the
work of Delia Bacon, but a terse analysis of a few of them
may be attempted.
Donnelly's *' Great Like Poe's story, the "Gold-Bug,"
Cryptograph and these books present a curious expla-
* Cypher.' " nation of the process by which the
author attempted to unravel a cypher
running through the plays of Shakespeare, by means of
words at irregular and odd intervals commencing with
XXX THE LAW IN SHAKESPEAEE.
the initials of Lord Bacon's name and letters used in
other lines of other plays to also spell his name, and mes-
sage, when disconnected and used to suit the author's
purpose.
Of course cyphers had been in general use, ever since
the days of Julius Caesar and were used by him and by
other distinguished men, including King James II and
other prominent men of Bacon's period. Bacon himself,
as history advises us, was also interested in cryptography,
and devised and explained cyphers by the use of words,
as well as by the use of letters and alphabets. One of his
cyphers was to employ only the letters a and b, arranged
each of them in groups of five, so as to represent all the
24 letters of the alphabet. The fact that he was known
to be interested in cypher codes may have given Mr. Don-
nelly the idea of trying to decipher that he used such a
means of advising posterity that he had written the plays
of Shakespeare, but as no tangible evidence is produced
to sustain this theory, in this book, it has not been gen-
erally received. ^* Like the same author's "Atlantis,"
creative genius and imagination, akin to that of Walpole
and Miss Delia Bacon, are the most marked evidences of
this work.^^
The ' 'Cypher," by the same author, is based upon
many large figures, additions, subtractions and multipli-
cations, to get certain words, which are then presented as
explaining the real author's meaning. For instance, in
the chapter, on *'Why Bacon denied the authorship of
the plays, "^^ the author finds the word ''I" by the fol-
" While not generally received, Donnelly presented the cypher
in the play so plainly that Dr. Owen could see it, as he did the
lost records through the mud and silt of the tempestuous river
Wye and the same theory has been accepted and enlarged upon
by Isaac Hull Piatt, of New York, and the late R. M. Bucke, of
London, Ontario, who, like Delia Bacon, have been no doubt given
the power to see that which does not exist except in their minds.
" George Brandes terms this book the "Crazy Book."
"»"The Cypher in Shakespeare's Plays," Chap. XXVI.
BACON-SHAKESPEARE CONTROVERSY. XXXI
lowing method: ''Let us take 257 again" — but why this
particular number he does not say — ''and instead of add-
ing the modifier 253 to it, deduct 253. This leaves 4 ; add
532, the number of words on page 74, and we have 536,
deduct the modifier 50, and we have 486; carry this
through page 73 (406) words and we have 80 left; add
167 and it gives us 247; add 29 and we have 276, which
on the next column is the word "I. "^^ By pursuing this
process, over several pages, he deciphers the words "I
would rather die a thousand deaths than bring such great
disgrace, "^^ and from this, he concludes that Bacon thus
wrote the plays and by this round about, haphazard
method, gave his reason for denying the authorship.
Of course such methods are not only those of a special
advocate, but such a Chinese puzzle would more seriously
reflect upon the author.
There is no doubt but what the pages when these plays
were written were not of even size with those used to
obtain these figures and even if they were, since no meth-
od is used to get the words, but modifiers and subtractors
and multiples are used at random to pick out the word
wanted to construct the given sentence, by a method
equally as logical the author could have figured out
words to construct the sentence "The moon is made of
green cheese" and then adopted this proposition as an
irrefutable conclusion, from the plays.
Maork Twain's Book, Mark Twain admits that he learned
"Is Shakespeare his Shakespeare from his River
Dead?" Pilot, Ealer, who knew his Shakes-
peare well and who had no sym-
pathy whatever with Delia Bacon's erratic and unphilo-
sophical " philosophy. "^^
"Anfe idem., p. 194.
"* Ante idem., p. 197.
"""Is Shakespeare Dead," p. 8. A pity that this same River
Pilot could not have piloted this distinguished Missourian around
the shoals and quicksands of this Baconian theory, in his latter
days.
XXXll THE LAW IN SHAKESPEAKE.
He says that he is an agnostic upon the authorship of
the Shakespearian plays; denies that Shakespeare wrote
the plays and suspects that Bacon may have written them,
but does not know.^"
Judged by this book, the trouble with Mark Twain is
that he places the adherents of Shakespeare's title in the
position of ' ' assumptionists, " whereas, they only accept
the evidence at hand, without attempting to deny it, or
explain it away, while he prefers to take assumptions, as
facts and to deny the facts, as they really exist.
He ''assumes" that no stir was made over Shakes-
peare's death, because his great plays were not published
until 24 years after his death, but in this he does ** as-
sume," for he bases this statement upon no known fact.
He ''assumes" that the townspeople of Stratford did not
mourn him long and if this assumption had evidence to
rest upon, it would count for but little, for the townspeo-
ple of this country town, in that day were not an educated
class, and but few of them probably really knew of the
great work their local modest prophet had achieved. He
concludes, by the expressed wonder that history had given
us no evidence of the great calamity felt by his contem-
poraries at Shakespeare's death. If this is any evidence
to question Shakespeare's title to his plays, the same ob-
servation could be thrown out to question the life work of
every poet of that and later periods.
Dr. Johnson, in his life of the great Dryden, shows that
his body, through a misunderstanding of patrons who were
providing for his burial, lay for a week or so at an under-
taking establishment and it was later buried through the
charity of friends.®^ If such a state of facts connected
with Shakespeare's death could now be produced by the
Baconians, it would furnish something more than mere
conjecture that he was not mourned by the whole popula-
^^Ante idem., p. 50,
"Johnson's Life of Dryden, (1803), p. 243.
BACON-SHAKESPEARE CONTROVERSY. XXXlll
tion of Stratford when he died, but would it then be any
evidence to rob him of the title to his plays ? It is not con-
tended that this sad circumstance in any manner effects
Dryden's title to his poems.
But is it true, as Mark Twain assumes, that Shakespeare
was not mourned at his death ?
When he died, Milton was eight years old and he was
likewise thirty, when his friend Ben Jonson died and he
must have known them both and no doubt enjoyed a
personal contact with Jonson, who was Poet Laureate,
when he died. At thirty-seven Milton wrote his poems,
L 'Allegro and Penseroso,^^ in which he spoke of both
Shakespeare and Jonson, in referring to the pleasures of
his boyhood days, at his father's house, near Windsor
Castle :
"Then to the well-trod stage anon,
If Jonson's learned sock be on,
Or sweetest Shakespeare, fancy's child.
Warble his native woodnotes wild."
And in speaking of Shakespeare's death, he says:
''What needs my Shakespeare for his honored bones?"
If this is not evidence that he rested in an honored grave,
or that his distinguished countryman mourned his loss,
then it will be difficult to establish the fact by an honored
or credible witness, to the satisfaction of the followers of
Delia Bacon.
His death attracted such attention, even at that period
of the world's history, that the exact details were noted
in the town of his residence and have been handed down
for three centuries. Doctor Johnson says : "The character
and acquisitions of Shakespeare were known to multi-
tudes. "«^
As long ago as 1769 David Garrick organized a festival
at Stratford, in honor of Shakespeare and it lasted for
Johnson's Life of Milton, (1803), p. 70.
Johnson's works (1803), Preface to Shakespeare, Vol. 2, p. 106.
XXXIV THE LAW IN SHAKESPEARE.
three whole days ; was opened with ' ^salvos of artillery ' ' ;
was marked by the erection of a statue ; the illumination
of the town, a mask ball, two public breakfasts, a dinner
and toasts, and the oratio of Judith, in Trinity Church
and music of the Drury Lane Orchestra. Is this no evi-
dence that the great Bard rested in an honored grave?
Twain puts the question, ''Did Francis Bacon write
Shakespeare's works?" and then he answers, "Nobody
knows. "^* He does not assume to possess either the as-
surance or the familiarity with his subject that the col-
ored pastor did, when he established the existence of Di-
vinity, by answering the interrogatory **Is there a God,"
by the affirmation, ''there is," but thus denies any knowl-
edge of the subject he undertakes to elaborate, both for
himself and for all others. If "nobody knows," then
why should Twain afterward indulge the presumption
that because of Shakespeare 's unfitness to write the plays,
that Bacon, or some other person, equally capable, did
write them? By the same argument, or lack of oppor-
tunity to accomplish this work, the creations of the poets
of the same and later periods could be divested, for little
is known of the lifework of most of them, and by much
stronger circumstances, in later years, the life work of
such men as our own great Lincoln, can be questioned, for
he began with much meaner beginning than did Shakes-
peare.
Twain forgets to judge of Shakespeare's life, accord-
ing to the history of the time when he lived. It is not
legitimate to compare the means and facilities now exist-
ing with those of that period. The difference in the con-
ditions are too apparent to require comment, for while true
that Twain's work has made him known to the people of
his country, in the generation in which he lived; it does
not follow that he would not have gone with the unnoticed
""Is Shakespeare Dead," p. 102.
BACON-SHAKESPEARE CONTROVERSY. XXXV
millions who then lived and worked, if he had done the
same work three centuries ago.
After the admission that ''nobody knows" whether
Bacon wrote the plays or not and the dearth of evidence
to divest the title of Shakespeare, Twain may well con-
clude that there is no danger ''that Shakespeare will have
to vacate his pedestal this side of the year 2209,"^^ for not
only until this year, but so long as competent evidence is
required to establish given facts, his title will rest secure
against the attacks of those who proceed upon mere con-
jecture and surmise.
"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."^"
The Law in The great quantity of law presented in the
the Plays. plays is one of the strongest circumstances
urged by the Baconians to attempt to estab-
lish Bacon's authorship of the plays. Lord Campbell is
quoted to the effect that "To Shakespeare's law, lavishly
as he propounds it, there can neither be demurrer, nor bill
of exceptions, nor writ of error. ' '
But this statement is far too general to be accurate, for
the law is not always correctly presented in the plays. A
notable instance is furnished by the trial scene, in "Mer-
chant of Venice" where illegal reasons are assigned for
the judgment against Shylock and his affirmed legal
rights, said to exist by reason of the obligations of a
bond — clearly void, because contrary to public policy —
are afterwards struck down by a shocking piece of pleas-
antry, based upon a mere subterfuge-^^ No scientific
lawyer, such as Bacon, could have written this play, or
•*"Is Shakespeare Dead," pp. 129, 130.
" Winter's Tale, Act III, Scene II.
"Von Ihering's "Struggle for Law," p. 80.
XXXVl THE LAW IN SHAKESPEARE.
make Portia deliver such a judgment, for a lawyer
honors and extols the majesty of the law as a matter of
second nature and would never, in the climax of pronounc-
ing judgment, thus strike down an affirmed right, by any
such sophistry, based upon such a well known illegal po-
sition. No object of dramatic climax could have com-
pelled Lord Bacon to thus sacrifice the law, in writing
this judgment scene.
Judge Webb, in his ''Mystery of William Shakespeare,"
points out many specific instances to show that ''Greek
and Trojan, Roman and Syracusan, Ancient Briton and
Scandinavian, Venetian and lUyrian, Lord and Lady, all
discuss the jargon of the English Courts. "^^
Because of this quantity of law presented in the plays,
Judge Webb is willing to infer or surmise authorship in
a lawyer, preferring to create poetic genius sufficient to
write the plays, in a lawyer, not known to possess such
genius, than to presume a smattering of law, by a poet,
known to have written plays, by the following process of
reasoning :
*'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 we attribute the qualifica-
tions to the man, because we regard him as the author of
the works.''
That this is a wild presumption, is most apparent when
it is remembered that the plays abound in poetry and that
Shakespeare was known as a most gifted poet, and that
Bacon was a profound lawyer, but not a poet of ability
sufficient to have written these plays. To attribute this
work of a poet to a lawyer, because the work incidentally
Webb's "Mystery of William Shakespeare," pp. 167, 168.
BACON-SHAKESPEARE CONTROVERSY, XXXVU
contains law, rather than to a poet, known to have accu-
mulated a smattering of law, is indeed, a more striking
contrast than to accept the traditional authorship by one
known to have created similar work. ,
But for a lawyer to indulge in an inference, in the face
of an established fact, is a paradox. Inferences are only
indulged in, in the absence of the known facts, and then
they always depend upon the knowledge of the surround-
ing facts on the part of the person indulging such infer-
ences. But if the accumulated evidence of Shakespeare's
contemporaries is to be brushed aside and inferences in-
dulged in, why indulge in such an unreasonable inference
as that a philosophical old lawyer, known to write long
and ponderous essays on legal and philosophical subjects,
wrote poetry and comedy and tragedy, because a smatter-
ing of law is set forth in such works, when he was not
known to have performed such work and there were so
many others known to perform similar work, living at the
same time ? Many men of letters of Shakespeare 's period
wrote plays, so why attribute plays to one not known as a
play-writer, when there were so many play-writers, who
could have written the plays. In other words, the works
the presumption attaches to, are those of a poet, there-
fore a poet wrote the plays, not a lawyer. This would
surely be a much saner presumption, if inferences are to
be indulged in at all, but why speculate about the exist-
ence of a fact affirmed by competent testimony ? Why not
accept the fact as established by the credible testimony?
Shakespeare claimed the plays and was the acknowledged
author of the plays ; it is known that he wrote plays, so
why deny his authorship, because of a presumption or
inference of his incompetency? Bacon is not known to
have written plays ; he never claimed these plays, so if he
ever wrote plays, why presume that he wrote Shakes-
peare's plays? ,
With notice of the claim, Bacon stood by and silently
saw another claim and publish the plays and sonnets,
XXXVm THE LAW IN SHAKESPEABE.
without urging his claim thereto. By an ancient principle
of equity, therefore, he estopped both himself and his ad-
mirers from afterward claiming these plays, when he thus
failed to speak and assert his claim, when he should have
spoken and upon sound principle the Baconians are pre-
cluded from indulging these post-century inferences con-
cerning his title, because of another rule of law against
the assertion of such stale claims.
A Danish scientist, has recently discovered that Shakes-
peare's types present the best studies in criminology that
the world has ever had,®^ but he does not question his
authorship of the plays for this reason, but rather attrib-
utes this fact to the genius of the author, to his love for
humanity and to the fact that he analyzed the motives of
his fellows and put and answered the same questions that
psychologists today are asking and explaining why it
results that this or that crime fits this or that individual.
No amount of study would give this deep insight into
criminology and the inner recesses of the human heart that
the criminal types in Shakespeare present, but such de-
lineations, so true to life, like the true and just creations
through paint and marble, by Raphael, Michael Angelo
and the other geniuses that the world has produced, have
rather this divine gift as a basis for their existence-
*» Goll's "Criminal Types in Shakespeare," pp. 24-30.
Of the great number of books and pamphlets written on the
controverted title of Shakespeare, none are so convincing as
those written by lawyers, based upon the great amount of accu-
rate law that the plays contain, to throw doubts on the authorship
of the plays by Shakespeare.
Principal among these works are those of Judge Nathaniel
Holmes, Lord Penzance, Lord Campbell and Judge Webb, of Dub-
lin.
Judge Webb's work, "The Mystery of William Shakespeare,"
is the latest and perhaps the most forceful of these.
(See Holmes' "Authorship of Shakespeare," 4th ed., Boston,
1886; Penzance's "Shakespeare Problem, Re-stated," Chap. XIII.)
BACON-SHAKESPEARE CONTROVERSY. XXXIX
The Cases from The case from Plowden's Law Re-
Plowden and ports, of the death by drowning, of
Leonard's Reports. Sir James Hales, used as a basis for
the argument by the grave-diggers,
in Hamlet, is referred to by Judge Holmes and other Ba-
conians, as a most cogent reason why Shakespeare could
not have written the play, but that it must have been
written by a lawyer, since it was not known that Shakes-
peare had heard of or read this case. Of course this is a
mere assumption, for the case may have been read by
some one of his many acquaintances at the Inns of Court
and he could easily have procured the book and read the
case, if at all interested in the singular circumstances con-
nected with this case of felo de se, and later applied it in
this death scene in Hamlet.
From the presumption — indulged in the absence of any
knowledge of the facts — it cannot be concluded that he
did not read the case and hence could not have written the
play- Nor is the other conclusion at all reasonable, that
he had to necessarily read this case, to have composed
this scene at the burial of Ophelia.
But even if both of these conditions were essential, it
is just as improbable to conclude that because Bacon was
a lawyer, he must have read this case and have "written
this scene of Hamlet.
In Greene 's Menaphon, published in 1589, it is said that
Shakespeare left the *Hrade of Noverint" to become a
dramatist. ^^Noverint" was a well known slang expres-
sion to indicate the business of a lawyer's clerk, or ap-
prentice, so from this and other evidence, of his experi-
ence in a law office, prior to that year, he could well have
read the case of Sir James Hales, which was published in
1578. It no doubt attracted a great deal of attention, not
only because of the character and standing of the suicide,
but also because of the unique reasoning whereby the for-
feiture was enforced against his widow, so even if Shakes-
xl
THE LAW m^ SHAKESPEARE.
peare had not been for a time in a lawyer's office, it is not
an irrefutable presumption that he nevertheless read or
discussed this case, with some of his lawyer friends.'^^
An Irish King's Counsel, has recently found an old case
in Leonard's Reports,^ ^ where Justice Manwood refers to
a case of robbery, at Gad's Hill where one of Sir James
Hales' servants was robbed and the **men of the hun-
dred" of Gravesend, in Kent, were sued under the old
English statute, because of this robbery and he says that
such robberies there were so frequent that if a recovery
were allowed the hundred would be bankrupted.
This case was reported in 1577 and First Part of Henry
IV was producd in 1579, so, like the case of Plowden, re-
ferred to in Hamlet, this is some evidence that Shakes-
peare may have taken the robbery in this play from this
reported case, which some of his studies may have brought
to his attention or some of his lawyer friends, at the Inns
of Court, may have discussed with him. But this refer-
ence in the play, to a law report, is no evidence upon
which it can be concluded that a lawyer wrote these
plays, even if it were known that the incidents referred
to were taken directly from these reports, for the reports
were not inaccessible to Shakespeare and the cases named
were no doubt much discussed at the time. Instead of
disproving his title to these plays, these circumstances
only furnish the sources for his information, either di-
rectly or by hearsay, for two of the minor incidents in the
plays referred to.
'"This is the conclusion, as to this case advanced by Dr.
Fiske in his "Forty Years of Bacon-Shakespeare Folly," Atlantic
Monthly, for November, 1897, pp. 645, 646. See, also, learned dis-
cussion by Fischer, of Heidelberg, in his essay, "Shakespeare
und die Bacon-Mythen," read in 1895, before the Shakespeare
Society, at Weimar.
" Leonard, p. 12.
BACON-SHAKESPEARE CONTROVERSY. xli
Similar Law Shakespeare had the same means of be-
References of coming familiar with the character and
Other Writers, work of lawyers and the details of the
various actions he refers to that Dickens
had, yet a recent writer has shown that Dickens has truly
portrayed the various types of lawyers, as one meets
them to this day, in the English Courts : ' ' The range of
legal characters conceived by Dickens was very wide. We
have seen the trim, trig, and ordinary in Mr. Perker;
the contingent fee sharpers in Dodson and Fogg ; the bul-
lying pettifogg in Serj. Buzfuz; the commonplace, hard-
working, cunning barrister, in Serj. Snubbin; the sloppy,
down-in-the-heel bankruptcy braggart in Solomon Pell;
the reprobate magistrate in Fang; incarnate villiany in
Sampson Brass; the faithless humble hypocrite in Uriah
Heap ; the weak, ineffective and unfortunate man of prom-
ise in Wickfield; the ingenious humbug in Spenlow, and
his incompetent partner, Jorkins; the faithful, assidious
old-fashioned family solicitor, in Mr. Tulkinghorn; the
self-satisfied legal narcissus in Kenge; the eminently re-
spectable expert chancery cunctator in Vholes; the sub-
lime sacrifice of the brilliant Jackal in Carton; the stri-
dent, successful and shouldering barrister, in Stryver;
the great forceful, bullying master of criminal law in
Jaggers ; and the social legal dilletant, in Lightwood and
Wrayburn. What is there left? Notice, too, that each
is a distinct type, complete and disassociated in its set-
ting.""
It is well known that Dickens was not a lawyer. Shall
we conclude that some one of the many good lawyers of
his day wrote his various works, because the life and
character of various types of lawyers is thus accurately
portrayed by him? Certainly not, yet it is just as reas-
onable as to discredit Shakespeare's work, because he also
portrayed the work of lawyers, with not a whit more accu-
racy than Dickens and other writers have done.
" George Packard, In 45 American Law Review, p. 562.
Xlii THE LAW IN SHAKESPEAKE.
If it be suggested that these are mere legal types and
not distinct cases, we have but to refer to the London
Physician's details of the common law ejectment suit, in
**Ten Thousand a Year," George Eliot's complex legal
plots, in ^' Felix Holt," and ''Daniel Deronda" and Bul-
wer-Lytton's details of the law suit in ''Night and Morn-
ing, ' ' as signal illustrations of other literary writers who
have resorted to law reports and legal subjects, as a means
of presenting some phase of their plots to the public.
Comparison of But it is not only upon the propo-
Shakespeare's and sition that the plays are too great
Bacon's Works. and out of proportion to Shakes-
peare's ability, that the Baconians
advance their argument, but the parallelisms in the plays
with Bacon's works and coincidences of thought and ex-
pressions are also cited as evidence of the authorship by
Bacon."
From Bacon's "Promus," or treasury of beautiful
thoughts, taken by him almost literally, in many in-
stances, from the Proverbs, from Virgil, Horace, Ovid,
Seneca, the ancient philosophers and the most beautiful
literary productions of the different tongues, which hap-
pened to strike his attention, there are no doubt many
thoughts and sentences which are quite similar to
thoughts and expressions in the plays of Shakespeare, and
this circumstance is seized upon by many of the unortho-
dox school as some evidence to show that Bacon wrote
the plays.^*
That there are many resemblances in the forms and
manner of expression used by these two writers is very
evident, but this is no doubt due, in large measure, to the
fact that they both borrowed from the same source.
" See "Wit, Humor and Shakespeare," by John Weiss, 1876.
"See Mrs. Henry Pott's 600 page book, published in 1883,
wherein she sets forth several hundred quotations from Bacon's
"Promus," which remind her of similar passages in Shakespeare's
plays and poems.
BACON-SHAKESPEARE CONTROVERSY. xliii
There are also some quotations set forth by Mrs. Potts
which would go to show that Bacon had purloined Shakes-
peare's thoughts and in some insances, Shakespeare may-
have used his ideas.
The historian, John Fiske, instances many cases where-
in Bacon reproduced Shakespeare's thoughts almost lit-
erally, such as in the ''Essay of Wisdom," published in
1612, wherein he quotes from Hamlet, published in quar-
to, in 1603, and another expression in the ''Essay on Gar-
dens," first published in 1625, where the same thoughts
expressed in Twelfth Night, published in book form with
the edition of 1623, are expressed by Bacon.^^
But though there are instances that can be cited to show
that Bacon expressed the same thoughts that Shakespeare
expressed, or vice versa, this argues nothing, except, per-
haps that they both consulted the same authorities, or
used the same books, or expressed the same current
thoughts, or each, in turn, may have read the writings
of the other.
But the known writings of the two men are essentially
and radically different. While Shakespeare was engaged
in the composition of his thirty-seven plays, two poems
and one hundred and fifty-four sonnets. Bacon was labor-
iously constructing his new system of philosophy. He was
not an idle man and did not spend his whole time on this
work, nor on his other known literary productions, for he
was during his life, a distinguished chancery lawyer, with
a lucrative practice; member of Parliament; Attorney-
general of the kingdom ; solicitor-general and Lord Chan-
cellor. His work of revising his new philosophy was far
from finished, at his death, so even if he had possessed
the poetic tendency and there had been disclosed any evi-
dences to demonstrate that he was, in addition to being
the able lawyer and philosopher that he was known to be,
^" "Forty Years of Bacon-Shakespeare Folly," Atlantic Monthly,
for November, 1897, p. 648.
Xliv THE LAW IN SHAKESPEAKE.
also a born poet, such as he would have to be to have writ-
ten the plays of Shakespeare, it is extremely doubtful, if
he could possibly have written these monumental works
and also have accomplished his other known works, of
such radically different kind.
Shakespeare's Mistakes Not only in the law, but in the
Not Those of Bacon. historical facts, as well, Shakes-
peare made mistakes that Bacon
would never have made. As observed by Dr- Fiske, in
his *' Forty Years of Bacon-Shakespeare Folly :"^^
''Bacon would hardly have introduced clocks into the
Rome of Julius Caesar; nor would he have made Hector
quote Aristotle, nor Hamlet study at the University of
Wittenberg, founded five hundred years after Hamlet's
time ; nor would he have put pistols into the age of Henry
IV, nor cannon into the age of King John; and we may
be pretty sure he would not have made one of his char-
acters in King Lear talk about Turks and Bedlam. ' '
These are not the mistakes of such a scholar as Bacon,
but are the little uniformed facts peculiar to a broad but
not technical or accurate education, such as Shakespeare
possessed, according to the evidence of his friends, who
knew his limitations, but appreciated his great genius.
Scant Knowledge of Much stress has also been laid, by
Shakespeare's Life. those who question Shakespeare's
title to the plays, upon the fact
that but little is known of a large portion of his life ; but
the world knows about as much of the life of Shakespeare
as it does of the lives of any of the other dramatists or
poets of that same period. Alexander Pope was born in
London, over a century after Shakespeare's birth, yet, in
^« Atlantic Monthly, for November, 1897, p. 647.
BACON-SHAKESPEARE CONTROVERSY. xlv
his biography, Dr. Samuel Johnson said that he came of
parents ''whose rank or station was never ascertained."^'
Professor Hales, is his biography of Spencer, said that
''the life of Spencer is wrapt in a similar obscurity to that
which hides from us his great predecessor, Chaucer, and
his great contemporary, Shakespeare."
Of the dramatist, William Congreve, who lived a cen-
tury after Shakespeare, Dr. Johnson, in his biography,
said: "Neither the time nor place of his birth are cer-
tainly known; if the inscription upon his monument be
true, he was born in 1672. ' ' Of William Broome, the same
distinguished authority said: "William Broome was
born in Cheshire, as is said, of very mean parents. Of the
place of his birth, or the first part of his life, I have not
been able to gain any intelligence."
Practically the same thing has been said by competent
authorities, of the lives of Beaumont and Fletcher,^® Web-
ster,'^ Marlowe,^^ Massinger,^^ and many other of the
brightest minds of the same and later periods.
By such argument, therefore, most of the literary ma-
terial of the same period can be discredited and the writ-
ings of the brightest poets and dramatists of the world's
history taken from them, so no plausible theory, concern-
ing the authenticity of the plays ought to be based upon
the scant information concerning the man.
" The improbability of Shakespeare, as a country lad, develop-
ing, in a few years, into the leading dramatist of the world, is no
more improbable than that the voluptuous rake should soon
become the virtuous St. Augustine; that the Corsican peasant
should develop into the Emperor Napoleon, or that the rail-split-
ter of the past century should become the President of the great-
est nation in the world. History records these phenomena and
many similar ones.
" "Mermaid" Series of English Dramatic Writers.
'"Ante idem.
*" Ward's History of Dramatic Literature; Dyce's Edition of
his works.
»' Fleay's Biographical History of the English Drama.
xlvi THE LAW IN SHAKESPEAEE.
Evidence Establishing Where property rights, in law,
Shakespeare's Title. are subject to dispute, a title
may be based alone upon the
possession, and enjoyment of the given disputed property,
for a series of years, without more. If an established rep-
utation of ownership alone is sufficient to prove a right to
property, coupled with general recognition and a contin-
uous user and enjoyment of the property, it would seem
that Shakespeare's title ought to be secure, especially as
against Bacon, and his followers, a^ his title was asserted,
without dispute, and his plays were published during
Bacon's life time and he never once asserted title in him-
self. A title thus standing without dispute, until the
lapse of centuries, ought to have more than mere surmise
to overthrow it, and according to the proper legal stand-
ards for determining property rights, the adverse claims
of Bacon's followers are effectually barred by limitations,
laches and estoppel.
But the title of Shakespeare does not depend upon mere
limitation and the special defenses of laches and estoppel.
He has the best of evidence, to establish, by affirmative
proof, his title to the plays and poems-
The fact of his birth, his attendance at the '' free-gram-
mar school of Stratford," his poaching experience, his
marriage, his connection with the Globe theatre, his play-
writing and his relations with Ben Jonson and other dis-
tinguished men of his period, are facts well known to
every school boy, who has read the history of English
literature.
Spencer is known to have referred to him, in his ^^ Tears
of the Muses f^^ published, in 1591 ; a contemporary and
brother Dramatist, Chettle, in 1592, offered a printed
apology for an offense offered to Shakespeare and he ex-
pressed himself as appreciatory of his worth both as a
man and an author; Frances Mere's in his Wits Treasury,
published in 1598, spoke of him as the *^most excellent
BACON-SHAKESPEARE CONTROVERSY. xlvii
among the English for both kinds of tragedy and com-
edy." Milton, a boy of eight, when Shakespeare died,
*'of the English poets, set more value upon Spencer,
Shakespeare and Crowley. ' '^^ Writing on the blank leaves
of Mr. Garrick's book on Rymer's '^Remarks on the Trag-
edies of the Last Age," Dry den said: "In the last of
these. Homer excels Virgil; Virgil all other ancient poets;
and Shakespeare all modern poets. ' '^^
John Hale's reference to Shakespeare and Jonson, in
1633 ; Jasper Mayne 's reference to the dramatist, in 1637 ;
Leonard Digges' reference to the Poet, in the edition of
his poems, in 1640; the learned Fuller's description of the
Poet, in his ''Worthies," in 1642; Lady Margaret Caven-
dish's reference to him, in the ''Prologue" to her plays,
in 1662; Dryden's reference to him in his "Essay on Dra-
matic Poesy," in 1668; Langbaine's tribute, in his "Ac-
count of English Dramatic Poets," in 1691; Tate's "Ad-
dress," in 1680, along with Richard Farmer's "Essay on
the learning of Shakespeare," in 1766, and other similar
articles furnish abundant testimony of contemporaries
and others of the Poet's ability and genius necessary to
produce the works accredited to him and also of his
actual production of the works known as his.
While true that the first published volume of the plays
occurred seven years after Shakespeare's death, many
of the plays were published and acted during his life and
friends and contemporaries best knew of this work and
never questioned his title to the plays. Bacon, Jonson
and many of the actors and dramatists who wrote when
he lived were alive when the plays were published. They
knew whether or not he wrote the plays and if he had not,
would not his rivals and critics have raised the issue then ?
It is hardly probable that the many learned men of that
period and of the succeeding generation were all parties
•"Works of Samuel Johnson, Vol. IX, p. 138.
"1 Johnson's Lives of English Poets (1803), p. 198.
Xlviii THE LAW IN SHAKESPEARE.
to a gigantic scheme to permit one favored plagarist to
perpetrate such a fraud upon posterity. It is unreason-
able in the extreme, for his many rivals in the dramatic
art would never have loaned themselves to such a scheme,
even if his immediate friends would have been particeps
criminis to such an outrage.
Bacon was alive when the first edition of the plays were
published, by Heminge and Condell, in 1623, and his
friend Ben Jonson wrote the dedication and spoke of the
picture on the title page as the likeness of ' * gentle Shakes-
peare"; his works were accepted by all classes as his own,
both during his life and after his death, for a century and
a half, without dispute ; he received special marks of ap-
proval and favor from Queen Elizabeth, and from her suc-
cessor. King James, who honored the poet with a letter
in his own writing and procured for him the favor of
such men of letters as the earls of Southampton and Pem-
broke. The older editions of Shakespeare, were published
in 1632, 1664, 1685 ; Rowe's edition in 1709, and successive
editions were edited by such scientific men of letters as
Pope, Theobald, Sir Thomas Hanmer, the Oxford scholar,
Mr. Upton, Dr. Warburton, Capell, Stevens, Dr. Samuel
Johnson, and more recently. Knight X Dyce*s, Collier's,
Singer's, Clark's, and Wright's, Dowden's, Furnivall's,
Swinburne's, White's, Hudson's, Furness' and Rolfe's
editions have been published and very learned and scien-
tific men in Germany, and other countries, have made a
life study of the works of the immortal dramatist. Is
it not strange that of this large list of scholars not one
has doubted the authorship of the plays ? In the face of
the testimony of his contemporaries and the scientific and
expert testimony of these scholars, are the doubts based
upon such suggestions as Walpole's and Delia Bacon's or
the existence of an imaginary cypher, or of buried docu-
ments in the River Wye, with the other similar puzzles
and scepticisms, advanced on this adverse claim, to pre-
vail? If so, then, '^ 'tis rigour and not law."
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 — 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.
(1)
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."
j5ec. 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 LABOUR'S LOST."
oec. 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.
7L
Crime of Perjury.
72.
Denial of Receipt.
73.
Specialties — Acquittances.
74.
Apparitors — Duties of.
75.
Enfranchising one.
76.
Treason.
77.
"Quillets" of the Law.
78.
Statute-caps.
78a. Slander dependent upon hearer's attitude.
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,
82a. Tainted plea.
i THE LAW IN SHAKESPEARE.
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.
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 OP 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.
CHAPTER XIII.
"THE WINTER'S TALE."
Sec. 135. Time overthrows Law and Custom.
/i36. Trespass. ,
ISTT' 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.
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.
Sec.
"MACBETH."
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 L.'M IN SHAKESPEARE.
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.
193a. Dying declarations.
194. Waste upon real estate.
195. Landlord.
196. Lease — Tenement.
197. Possessed.
198. Royalties.
199. Attorneys-General.
200. Letters-patent.
201. ^^ze,
202. V^ 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.
\J 218. "The Law's Delay.^
219. "Peaching" on accomplice.
220. Righting Grand-jurors.
221. Audi alteram partem.
THE LAW IN SHAKESPEARE.
222.
Term of apprentice.
223.
Arrest upon "hue and cry."
224.
Rob'bery.
225.
Tripartite agreements.
226.
Enfoeffment.
J127.
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. "Paitors."
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 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 salica explained.
253. Ancestor.
254. Impounding strays.
255. Departments of Government working harmoniously.
256. Adultery.
THE LAW IN SHAKESPEARE. 9
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.
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.
0
274.
Condemned woman's privilege of pregnancy.
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.
10 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.
312a. Ordeal of the Bier.
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.
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 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 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.
12 THE LAW IN SHAKESPEARE.
363. Damage and indemnity of war.
364. Law's protection of marital relation.
365. A "privileged man."
. -^66. 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
. 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. 13
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 — Felo de se.
CHAPTER XXXI.
"CYMBELINE."
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. Gulderius' defense of his crime.
426. Upright Justice.
14 THE LAW IN SHAKESPEARE.
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. Libeling the Senate.
433. Prosecution for Contempt.
434. Lawful killing not murder.
CHAPTER XXXIII.
"PERICLES, PRINCE OP TYRE."
SecN435. Incest.
43^1 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. 15
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 XXXVn.
"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. Othello's election to stand upon Desdemona's evidence.
481. Sequestration against Desdemona.
16 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.
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 ;
Which 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 "m 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: "£:. Hen.
Stoop then, and set your knee against my foot; And in reguerdan
of that duty done, I gird 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; Unsheathe 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 TEMPEST. 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;
A.nd 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, is again spoken of, as follows: "Lawn. Father,
in: — I cannot get a service, no: — I have ne'er a tongue in my
head. — Well; (looking 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 makes 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:
"0/^. 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 write, regreet, 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.
Boling. I swear.
Nor. And I, to keep all this." (Act I, Scene III).
In 1' Henry IV, Francis said to Prince Henry: "Fran. 0 lord,
THE TEMPEST. 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 the
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 tffe 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:
''Glar. 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. EUs. 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.
Ghost. (Beneath) Swear.
Ham. Hie et ubiquef 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.
Ghost. (Beneath.) Swear by his sword." (Act I, Scene V.)
THE TEMPEST. 28
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 sweet 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:
"Oli. 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. E. 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, — I take thee Rosalind, for wife.
Orl. I 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 TEMPESTo 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; 0 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 now-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 office, 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
Edv/ard, 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 n.
"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 effectual 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:
"£■. 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.—
''Shot. 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.
Shot. Ay, cousin Slender, and Custalorum.
Slen. Ay, and Ratolorum, 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)
MERRY WIVES OF WINDSOR. 29
Coram, means before, and by the writ coram vobis^ or
coram nobis,^ 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.
Gustos 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.
a 1 Archbold Pr. 234.
3 1 Bl. Com. 349; 4 Bl. Com. 272; 3 Stephen, Com. 37.
* Bouvier'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:
"Ch. 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 II.)
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
Buch 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.
« 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 reasona'ble 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.
MERRY WIVES OF WINDSOR. 31
3ec. 9. Fee-simple — Pine and Recovery—Waste. —
"3Irs. Page. The spirit of wantonness is, sure scared out of
him; if the devil have him not in fee-simple, with
(fine jtnd recovery, he will never, I think, in the way
of~waste, attempt us again."^ ^**jl
The thought here expressed is, that unless the devil /JLd^
himself owned Falstaff, by the highest estate known to the ^M
law, by acknowledgment of record, in court, his punish- 0^>-^
ment had been sufficient to prevent, or dissuade him from Jf
his desire to commit further spoliation. A fee simple ^^Ji)
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 in 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 well 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 II.
^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, 18 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 Portinbras:
''Gap. 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.)
MERRY WIVES OF WINDSOR. 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 tlie 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.
Mar. 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 H.(
(34)
TWELFTH NIGHT. 35
Sec. 11. Proof — Admission against interest. —
''Oli. 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 irbide your
proof.
Clo. Good madonna, why mourn'st thou?
Oli. Good fool, for my brother's death.
Clo. I think, his soul is in hell, madonna.
Oli. 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 foo(i, 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. EvW.
•Greenl. Evid.
Flavlus, on his return to Timon 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 manachum; 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-
lowinjg 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.)
TWELFTH NIGHT. 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 with 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 v/elcome 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 BI. 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- jury men 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.
^ Twelfth Night, Act III, Scene II.
^Crabb, Eng. Law, 35.
« Enacted in 1164.
« 4 Bl. Comm. 302; 2 Russell, Crimes, 616.
In 1* 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.)
TWELFTH NIGHT. 89
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. 2
* 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:
"There 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.2 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 offense 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.
1 Twelfth Night, Act IV, Scene I.
2 2 Bishop's Cr. Law, Sec. 62.
8 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:
"7wo. The king, my father, shall be made acquainted of thy
assault." (Act I, Scene VII.)
TWELFTH NIGHT. 41
Sec. 18. Party plaintiff.—
''Oil . . . 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,
y> herein 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 VIII, 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
r42)
MEASURE FOR MEASURE. 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,
Bead to infliction, to themselves are dead;
And 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 Lcgum
Anglorum, et Natura Brevium, cum diversis Casibus, Regulis, et
Fundamentis Legum tarn de Lihris Magistri Littletoni quam de
aliis Lcgum Libris coUectis,'' 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 practice has become the law of a place or of a
given subject-matter.2 That custom may not only change
or alter law, but 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, w^hile 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.)
MEASURE FOR MEASURE. 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. —
''Elb. 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 VI) 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."
MEASURE FOR MEASURE. 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 drabs 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: *'8uft.
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: "Olo. 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: a'bandon 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. —
^'Prov. 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.
2 5 M. & W. Exch. 249.
* Measure for Measure, Act II, Scene II.
4 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.)
MEASURE FOR MEASURE. 49
Sec. 26. Plea for pardon. —
''Ang. 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 that 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:
"£:. Rich. O God: O God:
That e're this tongue of mine.
That laid the sentence of dread banishment
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:
"iVor. A heavy sentence, my most sovereign liege,
And all unlooked 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:
"OTi. Jus. . . . After this cold considerance, sentence me."
(2' Henry 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 you as you are? 0, 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.
Isah. 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.
I sab. 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;
MEASURE FOR MEASURE. 51
Most ignorant of what he 's most assured,
His glassy essence, — Hke an angry ape,
Plays such fantastic tricks before high heaven,
As make the angels weep: who, with our spleens,
Would all themselves laugh mortal.
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. 360.
•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,
And 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:
*'Dtich. 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: "K. 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-
eius, on her death bed. Queen Katherine said, in King Henry VIII:
"Q. Katn. 0 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.)
MEASURE FOR MEASURE. 53
Juliet. Must die to-morrow: 0 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 taken, ^ 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.^
^ Mjeasure for Measure, Act II, Scene III.
* Hecatommithi, of Giraldi Cinthio, published in Venice, in 1566.
•Rolfe's Measure for Measure, p. 174, notes.
* Measure for Measure, Act III, Scene IT.
"Anc. Laws 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 futuro "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 he 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, Hush. & Wife, 445, 475.
« 10 Clark & F. Hou. L. 534.
* Davis, Law in Shakespeare, 70.
MEASURE FOR MEASURE. • 55
Sec. 30. Plea for justice. —
''Isah. Justice, 0, royal Duke; Vail your regard
Upon a wrong'd, I'd fain have said, a rnaid ;
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 Angela for 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 VIII) the Jew is ridi-
culed, for seelcing justice, as follows:
''Salan. I never heard a passion so confus'd,
So strange, outrageous and so variable,
As the dog Jew did utter in the streets:
My daughter: — 0 my ducats: — 0 my daughter:
Fled with a Christian? — 0 my Christian ducats:
Justice: the law: my ducats and my daughter:
A sealed hag, two sealed hags of ducats,
Of douhle ducats, stoVn from me hy my daughter:
And jewels; two stones, two rich and precious stones,
StoVn hy 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 hestrid 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.
MEASURE FOR MEASURE. 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,
S€C. 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, when 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, Biron 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.
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, which 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 VI: "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.
n Mood. Cr. Cas. 27, 452.
n 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.
MEASURE FOR MEASURE. 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. Tlie 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 III, Scene III.)
* Measure for Measure, Act V, Scene I.
»1 Kent's Comm. 307.
•4 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'ertake 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:
MEASURE FOR MEASURE. 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 would 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 ofiPense 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: ''Olo. . . 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 hot 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 crirae.^ 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 ArcMvio Storico, etc., (Spoleto Tip. Bassani),
vol. Ill, pp. 220, 221; Rolfe's Measure for Measure, p. 219, notes.
MEASURE FOR MEASURE. t)3
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.
2 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)
MUCH ADO ABOUT NOTHING. 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 person would occupy, for in law, one who
is not in the peace himself cannot have his peace dis-
turbed.i
The Lord Chief Justice commands the peace, in 2' Henry IV
(Act II, Scene I), as follows: "CTi. 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: "K. 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.
MUCH ADO ABOUT NOTHING. 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.'
'1
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 a^
punishment of peine forte et dure, and if the defendant
*'Richm, 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: "Craw. . . 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 (in Titus Andronicus) 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.
68 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."^
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.
2 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.
MUCH ADO ABOUT NOTHING. 69
Sec. 42. Qualifications of constable. —
''Dogh. First, who think you the most desartless man
to be constable?
1 Watch. Hugh Outeake, sir, or George Seacoal ; for they
can write and read.
Dogh. 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, —
Dogh. You have ; I knew it would be your answer. Well,
for 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 vanity.
You are thought here to be the most senseless and
fit 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 ^'con-
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 Bl. 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 office, 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
w^ay 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?
Dogh. 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."^
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 Thos. 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
is presented as about the lowest of officials, in the following
verse: "CZo. From below your duke, to beneath your con*
stable, it will fit any question."
*Much Ado About Nothing, Act III, Scene III.
MUCH ADO ABOUT NOTHING. 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. —
"Dogh. 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 stay 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-
»?, 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.
prisonment 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.i 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. —
''Dogb. 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.
Dogb. 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, 'Ho 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. Comm. 218.
2 3 Hawkins, PI. Cr. 164; 4 Bl. Comm. 292.
3 Mucli Ado About Nothing, Act III, Scene V.
* 2 Leach Cr. Cas. 552; 4 Bl. Comm. 296.
MUCH ADO ABOUT NOTHING. 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?
Dogh. 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 where 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 Bl. Comm. 296; 2 Leach, Cr. Cas. 552.
74 THE LAW IN SHAKESPEARE.
crime/ but as the term is usually 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 no'c
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 is 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 which 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.
MUCH ADO ABOUT NOTHING. 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.
Dogb. 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.
Sexton. What heard you say 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. . . . Thou 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 II.
M Bl. Comm. 296; 2 Leach, Cr. Cas. 552.
•Roscoe, Cr. Evid. 44; Philllpps, 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 villain. ' '*
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.
MUCH ADO ABOUT NOTHING. 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?
Dogh. 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. —
^^Dogh. Come, you, sir; if justice cannot tame you, she
shall ne 'er weigh more reasons in her balance ; nay, an
you 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, Or. Evid. 362.
6 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,
which 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 weigh
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."
(Act V, Scene H.)
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.)
2' 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 Hermit.
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 'Svidow 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
were merely cities with their districts, and each dis-
trict possessed its own constitution and had exclusive man-
agement of its own concerns. 2 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 Manners & Customs of Ancient Greece, 76, 77;
Schoman's Dissertation on the Assemblies of the Athenians, 346,
(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 was 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 laws 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 Hooke'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.
MIDSUMMER NIGHT'S DREAM. 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.
U Kent's Comm. (12 ed.), 520.
'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, iii, 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 vO'tria 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.
MIDSUMMER NIGHT'S DREAM. 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: *'Olo. . . 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.—
"i^ge. 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
Greece 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 ;2 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 says, '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; Tayior's Ele-
ments of Civil Law, 395, 403.
MIDSUMMER NIGHT'S DREAM. 85
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 parent's
consent to the marriage of a child was impedimentum
impeditivum, or such an impediment as threw an obstruc-
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. —
''Lijs. . . . 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. Ath. 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 having 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 I.
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 Hermia, 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."
78a.
Slander dependent upon hearer's attitude.
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 understood 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, suh. under and seriho, 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.
love's labour's lost. 89
Sec. 61. Penalty of the law.—
''Biron. (Reads) That no woman shall come within a
mile of my court — And hath this been proclaim 'd?
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:
'*Por. 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 II, 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 I, Scene III.)
'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, that 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.
love's labour's lost. 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 not
thou 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: "8om. . .
His trespass yet lives guilty in thy blood. And, till 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
attalnture 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
talnture 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 Jaquenetta.
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: "8criv. 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: "Oent. '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."
love's labour's lost. 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
PalstafC'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 wheri
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
Palstaff 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 draweth 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."3
This letter follows, in a satirical and ridiculous way,
the charging part of a common law indictment, in setting
forth the venue or 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.
love's labour's lost. 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," which 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.2
Sec. GQ. — 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:
''Gre. 1 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, nlll 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 suflacient
dower, The match is fully made, and all is done." (Act IV,
Scene IV.)
"Pet. Wonder not, nor be not grieved; she is of good esteem,
Her dowry wealthy and of worthy birth." (Act IV, Scene V.)
"Bap. 1 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 yet. Lord Salisbury, I'll go with thee, And find the inheri-
LOVE'S labour's LOST. 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 1' 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: "Iden. This small
inheritance, my father left me, Contenteth me and is worth a
monarchy." (Act IV, Scene X.)
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, revenges; 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 his Inheritor." (Act I, Scene IV.)
98 THE LAW IN SHAKESPEARE.
Sec. 67. Duties of solicitor.-—
'Tnn. 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 sud.
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.)
love's labour's lost. 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)
Keceived 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 else, 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 Aqnitain."^
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:
"Aewa. 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
Greeklsh 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:
*'Iago. 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.
love's labour's lost. 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 timO; 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:
*'Bal. 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 rqyal 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:
"JST. 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 deadly 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 I.
'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 ^ath, 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.
love's labour's lost. 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:
."K. 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:
"Cces. 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, 2 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. —
'Tnn. 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,
n Pet. C. C. 182; 2 Johns. N. Y. 378.
n5 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.
love's labour's lost. 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.2 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 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 F envoy,
some goose, in this.
Arm. 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 obtained 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 III, Scene I.
* Bouvier's Law Dictionary.
«II Coke, 91.
In Antony and Cleopatra, Cleopatra thus addresses Antony:
"Cleo. . . Or, who knows,
If the scarce-bearded Caesar have not sent
His powerful mandate to you. Do 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:
love's labour's lost. 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.
'Vas. 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 Caesar, 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:
"iT. 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: ''K. Hen. . . Treason and murder, ever kept together,
as two yoke-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 : *'8om. . .
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: "Buff. 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. O, 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:
"Aw/. Read it not, noble lords; But tell the traitor, in the high-
est degree, he hath abus'd your powers." (Act V, Scene V.)
love's labour's lost. 109
Sec. 77. Quillets of the law. —
"Long. 0, some authority how to procteed,
Some tricks, some quillets, how to cheat the devil."^
"Quillet," is no doubt derived from quidlihet, 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.2 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:
"Buff. . . 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.
love's labour's lost. 110a
Bee. 78a. Slander dependent upon hearer's attitude.—^
f(
Rosaline. A jest's prosperity lies in the ear
Of him that hears it, never in the tongue
Of him that makes it. ' '^
This philosophy of the Poet, in which he truthfully con-
cludes that the success of a jest is dependent more upon
its reception by the hearer than upon the delivery of the
speaker, has been used by courts and lawyers in libel
and slander cases, to illustrate the necessity of a willing
ear to add prosperity to a slander. Of course the pros-
perity of a slander suit is almost wholly dependent upon
the attitude of the hearer of the slander, because words
that might be slanderous, per se, when spoken into the
ear of one who does not apply them as charging the com-
plainant with moral turpitude or wrong-doing, will not
lead to a successful termination of the suit, unless actu-
ally re-told as uttered, or in such manner as to constitute
a valid cause of action, at law, hence, the prosperity of a
slander, like "a jest's prosperity, lies in the ear of him
that hears it,'' and if it is not heard by one who repeats
it in such manner as to charge some moral turpitude or
wrong-doing to the one of whom the words were spoken,
then the suit would fail, regardless of the words actually
used by **the tongue of him that makes it."^
» Love's Labour's Lost, Act. V, Scene II.
^This application of these lines is made by Judge Lamm, of
the Supreme Court of Missouri, in the recent case of Diener vs.
Chronicle Publishing Co., 230 Mo. 629, wherein the court said:
"It was happily said by Goode, J., in a case on which I cannot
put my finger, that in this aspect a libel or slander is like unto a
jest, i. e., the prosperity of each lies in the ear of the hearer —
thus hitching the gravity of the law to the car of the light philos-
ophy of Rosaline:
"A jest's prosperity lies In the ear
Of him who hears it, never in the tongue
Qt him that makes it.'*
—Love's Labour's Lost, Act V, Scene 2.
110b THE LAW IN SHAKESPEARE.
In Other words, since a slander is an injury to a per-
son's character and reputation caused by spoken words,
the slander must always be communicated to a thiyd per-
son and the existence, or non-existence of the offense de-
pends entirely upon the manner in which the words are
repeated by the person to whom they were communicated.
It is difficult to define just what kinds of words are
actionable, but, in general, whatever imputes disgraceful,
fraudulent or dishonest conduct or tends to make one ap-
pear contemptible, in his private relations, or to be
shunned by his friends or acquaintances, is a slander.
Words imputing a crime or an indictable offense, or a
contagious disease, are slanderous. Words, to be action-
able in themselves, without proof of special damage, must
impute, according to Heard, **the commission of a crime,
involving moral turpitude, and which is punishable by
law."
Words spoken of one in office, which cause the loss of
the office, or which impute the want of ability or capacity
in one's business, or attribute a disease to one, which
renders him unfit for society, are actionable, without
proof of special damage.
Unless the words are of this character, however, special
damage must be proved, to furnish a valid cause of
action; the words must not have been in the nature of a
privileged communication and they must have been
uttered without legal cause.
Epithets which cause no special damage, such as merely
calling a man a swindler, a scoundrel, rogue, gambler or
liar, are not actionable. But words imputing gross ignor-
ance or misconduct affecting one's trade or profession
are held to be actionable without proof of special dam-
ages, for to call a man a ^* bankrupt merchant," or a
** quack doctor," or the like, is to injure him in his trade
or profession, and such words furnish a cause of action.
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.
82a
. Tainted plea.
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 I.
(Ill)
112 THE LAW IN SHAKESPEARE.
rant the title and either upon voucher or upon eviction,
to yield lands of an equal value with 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 wilt 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.
MERCHANT OF VENICE. 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 recLuest 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.2 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.
M 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.
*I 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 ohligatio — 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.)
Glendpwer 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.)
MERCHANT OF VENICE. 115
Sec. 82. Extorting evidence upon the rack. —
'Tor. Ay, but I fear, you speak upon the rack,
Where men enforced do speak anything."
"1
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 supi
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. 2
Of 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.
2 Taylor's Elem. Civil Law.
Tke 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 th«
MERCHANT OF VENICE. 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, FalstafE is made to say, in 1'
Henry IV (Act II, Scene IV) : "Fal. 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 new 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' Hency 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 Troilus
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.
Ores. 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
for me? 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:
"O 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; he 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.)
117a THE LAW IN SHAKESPEARE.
Sec. 82a. Tainted plea. —
**Bass. In law, what plea so tainted and corrupt
But, being season 'd with a gracious voice,
Obscures the show of evil? In religion,
"What damned error, but some sober brow
Will bless it and approve it with a text.
Hiding the grossness with fair ornament?"^
In this casket scene, where Portia did all that she could,
by means of the song, to advise Bassanio of the selection
to make, without violating her express promise, in solilo-
quizing upon the hollowness of outward show and osten-
tation and the prevalency with which the world was de-
ceived with ornaments, so prone was the poet to indulge
in legal references and illustrations, that the popular con-
ceit of the time, that the legal profession, when retained
upon the side of an evil cause, used even the guile of a
gracious voice, as an arrow for the heart, in order to ob-
scure the ''show of evil," found expression in this fling at
the lawyers of that day.
"While a popular notion, that a *' tainted and corrupt"
plea, at law, was obscured or covered up, by a "gracious
voice," the fact that the court or jury also heard the
other side, no doubt made it as difficult in that time as it
is in this for an *'evil cause" to run the gauntlet of the
courts. The pit, then as now, no doubt applauded this
reference of the lover to the popular conceit, at the ex-
pense of lawyers, but those who have spoken in the inter-
est of a ''tainted plea," in court, even with the devil's
choicest quiver, aim'd directly at the heart of an austere
judge, with however gracious, soft, or even tremulous
voice, have, perhaps, experienced how wide of the mark
these well selected arrows fly and how seldom, in reality,
^Merchant of Venice, Act III, Scene II.
THE MERCHANT OF VENICE. 117b
a tainted plea or an evil cause prevails, wliere correct
judicial standards are applied.^
The courts are organized to enforce the right and to
redress the wrong. A tainted plea, being urged in the
furtherance of a wrong, it is the very business and object
of the court to prevent the same and hence, it is the rule
that the court, itself, stands as an insurmountable ob-
stacle to the attainment of a * 'tainted plea,'' however
much it may ' * obscure the show of evil. ' '
Indeed, the poet, seemed to realize that while **a gra-
cious voice," *'in law," might more or less obscure the
*'show of evil," it was the exception and not the rule, for
such a plea to run the gauntlet of the court, for by way
of drawing a parallel to such a plea, in law, he uses the
rare exception, in religion, where ''some sober brow,"
"will bless" and approve, with a text, the "damned er-
ror, ' ' that owes its origin to the Devil alone and which is
foreign to the beneficent object of religion.
At first reading, this verse, therefore, would seem to
reflect upon the courts. The poet stops short of conclud-
ing that the "tainted plea" can be successfully urged, by
means of a "gracious voice," but only observes that the
"show of evil" therein, may be obscured thereby. And
in likening the fallacy of advocating, in law, the tainted
plea, he draws the parallel of the religious text, based
upon "damned error," which ''some sober brow" will
bless and approve, with a text.
It is, of course, not the rule, in religion, to speak in
furtherance of "damned error," any more than it is, in
law, to urge a "tainted plea." There are churchmen and
lawyers, who sometimes do these things, but fortunately
it is only "some" of the "sober brows" in religion, who
approve false texts, ju^t as it is in law, the rare exception
that a "tainted plea," although obscured by a gracious
voice, can prevail, in a court of justice.
'This quotation is referred to, by Judge Henry Lamm, the lit-
erary member of the Supreme Court of Missouri, in his usual
instructive manner, in the case of Cook vs. Newby, 213 Mo. 493.
lis 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 'Vont to call me usurer," is in strict accordance
with the history of the subject of usury, in England. The
first usurers, in England, were 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 XXXIir 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 I.
»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. XXIIL, 19-20.
MERCHANT OF VENICE. 119
the Christian would naturally follow, is no doubt intended,
in the reference, by Shylock, to the loaning of money as
a ''Christian 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 sudor e vultus tui 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:
"GZo. . . 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 II, Scene II.)
And the fool )aid: "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 greedy 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: **Alcih. 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.
MERCHANT OF VENICE. 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 tlie basis for
his dislike, 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."
Solan. 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.
8erv. '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:
*'Ch. 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 your person."
(Act V, Scene II.)
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: *'Cn. 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.)
MERCHANT OF VENICE. 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, relen^, and sigh and yield
To Christian intercessors. 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 olTenders, 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 yet we want a colour for
his death, *Tis meet he be condemn'd 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 SHAKESPEARE.
Sec. 87. Standing for law.
''Shy. Eepair 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 trid 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 observation 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.
MERCHANT OF VENICE. 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.—
"Shy. 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
^ 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.
FalstafE makes the following reference to the law, in a colloquy
with Prince Henry: ''Fal. . . . 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?" (!' 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 said to Arthur: "Upon
thy cheek lay I this zealous kiss. As seal to this indenture of my
love." (Act II, Scene I.)
King John is made to say, replying to Hubert: "jffw&. 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 II.)
In King Richard II, the Duke of York said to his son:
^'Yorlc. What seal is that, that hangs without thy bosom?
Yea, look' St thou pale? let me see the writing."
(Act V, Scene II.)
MERCHANT OF VENICE. 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 thebee's-
wax, for I did but seal once to a thing and I was never my own
man since." (Act IV, Scene II.)
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 II), 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 HI.)
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
III, Scene I.)
Henry V, in wooing Katharine of Prance, said: "K. 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: "Glo. 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,
MERCHANT OF VENICE. 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
to her: "K. 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 I.)
In Cymbeline, lachimo said to Posthumus, in making the
wager: '*Iach. . . 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?
Por. 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 VII.)
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 IV):
"K. 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: '*Bru.
He was your enemy; ever spake against your liberties, and the
charters that you bear, i'the body of the weal." (Act II, Scene
in.)
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.
MERCHANT OF VENICE. 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. —
"Pot. 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 thera.^
^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
Etrurla. 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. —
'Tor. The quality of mercy is not strain'd;
It droppeth, as the gentle rain from heaven
Upon the place beneath: it is twice bless 'd;
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, supra.
^Merchant of Venice, Act IV, Scene I.
MERCHANT OF VENICE. 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. —
'Tor. 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.
^Bouvler's Law Dictionary; Rutherforth, Inst. 224; 3 Story,
Con., Sec. 1488.
In passing upon Alcibiades' defense of the felon, in Timon of
Athens, the Senators hold this conference: "1 Sen. 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
of him,
Is dearly bought, is mine, and I will 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. 2 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.
^'Tldd Prac. 930.
"Stephen, PI. 126.
* Freeman on Judgments.
"Chitty, Com. Law, 215, 217, 228, 250.
Commenting upon Shylock's attitude, as piesented in this verse,
as that of the seeker after justice in all climes and under all
MERCHANT OF VENICE. 135
Sec. 96. Justice of Shylock's plea.—
'Tor. ... I have spoke 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."^
Sec. 98. Tender in open court.—
''Por, 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
» Merchant 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.
MERCHANT OF VENICE. 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.
Pot. 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 case, 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.
''I Kent's Com. (12 Ed.), 476.
MERCHANT OF VENICE. 139
Sec. 100. Portia's judgment on the bond. —
"For. Why, this bond is forfeit;
And lawfully by this the Jew may claim
A pomid 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 weigh 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?
'Tw^ere 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?
For. 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.
For. 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 SHAKESPEARE.
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?
Pot. 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 incurr'd
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.
MERCHANT OF VENICE. 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, 82 (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 fiesh 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
MERCHANT OF VENICE. 143
Sec. 101. Commutation of punishment. —
"Duke. That thou shalt see the difference of our spirit,
I pardon thee thy life, before thou ask it:
For half thy wealth, it is Antonio's;
The other half comes to the general state.
Which humbleness may drive unto a fine.''^
A pardon is an act of grace, from the power intrusted
with the execution of the laws, which exempts the one
upon whom it is bestowed from the punishment inflicted
for the crime committed.^ The pardon, here, unasked,
of the life of Shylock, forfeited by the law, for the offense
he had committed in conniving at the life of a human
being, is a familiar form of extending the pardoning
power. As a pardon does not generally affect the rights
of any other whose status would be affected thereby, if it
operated upon other than the criminal,^ the Duke 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 erroneoup
judgment and one whose cause was wreclced 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. Cas. 47.
'10 Johns. (N. Y.) 232.
*Bouvler'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 possessed.
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.
MERCHANT OP VENICE. 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.
Pot. Art thou contented, Jew; what dos't thou say?
Shy. I am content.
Por. Clerk, draw a deed of gift.
Shy. I pray you, give me leave to go from hence;
I am not well; send the deed after me,
And I will sign it."^
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 by
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. II, 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.)
€HAPTER 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 tradition
takes not away my blood, were there twenty brothers
betwixt us; I have as much of my father in me as
you; albeit, I confess, your coming before me is
nearer to his reverence.''*
The law of primogeniture or the right of the first-bom
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 Dictionary.
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 L
^Wigram, Wills, 11.
In King John, tlie 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."
(Act 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 by him tainted shall for him be spent,
And as 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."
AS YOU LIKE IT. 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. gl, 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 be 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 II.
'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 II, Scene 1.)
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 11.)
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 I.)
150 THE LAW IN SHAKESPEARE.
Sec. 107. Testament.—
'Vrl. 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: "K. 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 I.
AS YOU LIKE IT. 151
The Eoman word testament, is here used, in preference
to the English word ''will/' a synonym for the instrument
whereby a person alienated 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
wounded 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 V 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; —
''Ro8. 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 All 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 II.
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
V, Scene III,)
» As You Like It, Act II, Scene I.
' 3 Stor. C. C. 453: 2 Bl. Comm. 471.
AS YOU LIKE IT. 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 II, Scene I.)
York observed, on the death of Gaunt, in Richard II:
*'York. 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:
"£■. 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 our 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.
8As You Like It, Act III, Scene I.
*Bouvier's Law Dictionary.
AS YOU LIKE IT. 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 essential 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.—
"Or?. 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.
2 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 must 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." (-A-ct V, Scene III.)
AS YOU LIKE IT. 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.2 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:
"Suff. Marriage is a matter of more worth. Than to be dealt
in by attorneyship." (Act V, Scene V.)
»As You Like It, Act IV, Scene I.
158
THE LAW IN SHAKESPEARE.
versal 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 WELL 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 whom 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. ^
1 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 who ''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 will perform such
acts as the one addressed shall will.
* All's Well That Ends Well, Act I, Scene III.
^Greenleaf, Evid, (14 ed.).
" Halliwell-Phlllips 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 I.
"This term is no doubt taken from the Latin prae, before and
mittere, to put. Bouvier's Law Dictionary.
all's well that ends well. 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:
"£■. 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:
"FaZ. 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: *'E. 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:
"Trot. . . O theft most base;
That 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 il.)
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
hy 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,
Rohs 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,
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 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 Plantagenet with his inheritance,
1' 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.)
all's well that ends well. 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 w^as 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.:
"Q. 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 II.)
» All'fl Well That Ends Well, Act III, Scene VII.
»1 Russell, Crimes, (Greaves Ed.) 48.
"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
speaker to himself act as the trumpeter 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.).
"Tiedeman, R. P. Sec. 296 (3d ed.).
all's well that ends well. 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 connec-
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 ' ^ too 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. i.
» 1 FhillippB 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 matrimonii, 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.^
* All'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: ''Poh
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 'twixt 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.)
all's well that ends well.
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 that 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 in, 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 lago, 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.
183. 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:
''Bull. 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)
TAMING OF THE SHREW. 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.
M Bl. Comm. 273.
'Rolfe's Taming of the Shrew, p. 158, notes.
* Taming of the Shrew, Act I, Scene II.
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. —
"Gtu. 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 w^as 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.
n Chitty, Crim. Law, 4.
* Taming of the Shrew, Act I, Scene II.
»1 Bl. Comm. 324.
«1 Bl. Comm. 429.
TAMING OF THE SHREW. 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. —
''Her. . . 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 IT, Scene I.
»II Reeve's History Eng. Law, p. 302, et seq.
172
THE LAW IN SHAKESPEARE.
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 diflPerences 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 w^ere used to grant marriage portions
and this is the way the term is applied in this connection.
Sec. 133. Chattels.—
''Pet. ... I will be master of what 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
* 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.
TAMING OF THE SHREW. 173
to the kind of property known as real estate/ hence
Petruchio calls Katharina his ''chattel," to show his
prowess, with 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 III) Pistol said to Hostess Quickly:
'Tist. 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.)
2 Taming of the Shrew, Act V, Scene I.
^ 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 Cymbellne, 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 IV, Scene I.
'Bacon, Abr., 1; 1 Bl. Comm. 76; 2 idem. 31.
»2 Bl. Comm. 263.
Queen Margaret observes, in 3' Henry VI: "Q. Mar. Yet
heavens are just and time suppresseth wrongs." (Act III, Scene
in.)
(174)
winter's tale. 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 overthrow law and in one self-born
hour, to plant and overwhelm custom."
Sec. 136. Trespass.—
''Cam. Be plainer with me; let me know my trespass
By its own visage: if I then deny it, 'tis none of
mine.^^
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
betw^een 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.
» 1 Chltty, PI. 439.
Mowbray, duke of Norfolk, thus refers to the father of hla foe,
in King Richard II (Act I, Scene I):
176 THE LAW IN SHAKi:SPEARE.
''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 Ctesar."
(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.)
winter's tale. 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.
»1 Thompson 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 neglefct 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:
'Vaes. 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:
'Vleo. 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 III.)
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 CXVir Sonnet, the Poet speaks thus of wilfullness and
error :
"Book both my wilfullness and errors down,
And on just proof surmise accumulate." (9, 10.)
winter's tale. 179
Sec. 138. Prisoner's fees.—
'^Her. . . . Force me to keep yon as a prisoner,
Not like a guest; so you shall pay your fees,
When you depart, and save your thanks."^
These lines unquestionably refer to the practice, not
generally eountenanced by the courts, on the part of
jailers and such officers, of exacting fees from discharged
prisoners, wh^n they were discharged, regardless of their
guilt or innocence. Of this procedure, in England, Lord
Campbell sayB: ''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 Polixenes, she threatens
him, not only with imprisonment, but with the fees, on
his discharge, that are usually exacted, on the liberation
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
* 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 essential
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 allegati'on 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. 1049; 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.
Is he found guilty? 1 Gent. Yes, truly is he and condemn'd upon
it." (Act II, Scene I.)
« Winter's Tale, Act II, Scene I.
*Bouvier's Law Dictfdnary.
"Bacon, Abr.; Chitty, Prerog.; Coke, Litt. 90.
winter's tale. 181
eved, did not have to take the counsel of his courtiers, but
was permitted to follow such prompfings 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 kw 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 r 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:
*'8ic. . . if I say fine, cry fine; if death, cry death; Insisting
on the old prerogative, And power i'the truth o' the cause." (Act
III, Scene lil.)
In King Lear, when accused of her intrigue and crimes with
Edmund, Gonerll 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 IT.
»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 were 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
enfranchised," "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 child 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
winter's tale. 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. —
'Vffi. 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 II, 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 ITer-
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
guilty," is taken and this, in law, is called the "arraign-
ment."2
Sec. 144. Surmises, not proof of guilt. —
"fler. . . . 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., Imdictment, (Gl); 1 Chitty, Cr. Law, 217, 224;
297.
=«Arclibold, 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 IL
winter's tale. 185
arguments or "surmises" as to facts not within the knowl-
edge of the witnesses who testify 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 was 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 term 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 Phillipps, Evld. 185.
"Winter's Tale, Act III, Scene II.
* Bacon, Abr., 4 Bl. Comm. 299; Coke, Litt. 126.
»4 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."*
*1 Bl. Comm. 33; Archbold, Cr. PI. 128.
Falstaff 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 IV.)
2 Winter's Tale, Act III, Scene II.
3 22 Henry VIII, c. 9.
*IV Reeve's History Eng. Law, p. 427.
winter's tale. 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 the 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 arguments, 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 to 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 that 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 fevil 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 follov^ng 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"^uffolk 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 th« * ♦ *
winter's tale. 189
last past and divers other dayes and times the felonies of V/itch-
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, aflBicted, 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.
George Corwin,
Sheriff."
(See "Comment," a Legal Publication, by Co-Op. Pub. Co., for
May, 1910, p. 229, for fac-simile of original warrant and return.)
CHAPTER XIV.
"COMEDY OF 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 ilegal, 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)
COMEDY OF ERRORS. 191
Sec. 151. Attachment. —
"Mer. 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 writ before the
court.2
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,
1835; 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: ''Ang. 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.
COMEDY OF ERRORS. 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 due.^
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. Oft. 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 follov/ing occurs in the arrest of Palstaff, at the suit
of the hostess, in 2' Henry IV (Act II, Scene I): ''Fang. Snare,
we must arrest sir John Palstaff.
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 were 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 TV, 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 processr — 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"2
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.
COMEDY OF ERRORS. 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."2
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, Act IV, Scene IV.
• Bouvler'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: "Suft. . . The duchess,
by his subornation, upon my life, began her devilish practices."
(Act III, Scene I.)
Tyrell, in King Richard III, refers to Dighton 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.)
COMEDY OF ERRORS. 197
Sec. 157. Prisoner. —
''Off. 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. 3 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 surety 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 OfBcer: "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: "K.
lien. . . 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:
**Ro8. Well, I will forget the condition of my estate, to rejoice
in yours."
Lord Abergavenny, in King Henry VIII, speaking of the pageant
(198)
MACBETH. 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.2 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: "Aber. I do know kins-
men of mine, three at least, that have by this so sicken'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: "lach. Would I had put my estate, and my neighbour's,
on the approbation of what I have spoke." (Act I, Scene IV.)
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?
Mach. To-morrow — as he purposes.
Lady M. 0, 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, will 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.
MACBETH. 201
psychic unity in which each of them has merged him-
self.''^
Sec. 161. Agent.—
^'Macb. 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 Maebeth'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: "Maebeth's freedom of action is vanishing: the
words are, this time, perfectly in tune with Lady Maebeth'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 Maebeth's own mind; it is there he reserves the
right to weigh the case once more, j^rom Lady Maebeth'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 Maebeth's counter reasons in a logical duel,
following the complete explanation of them to her. . . Lady
Macbeth does not need to hear Maebeth'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 Maebeth's heart, to make
it beat in time with her own purpose." (Pages 112, 113.)
Lady Maebeth'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. —
''Mach. 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 III):
**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: 'Tan. . . 0 world, world:
world: thus is the poor agent despis'd: O 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.
«4 Kent's Comm. 295.
MACBETH. 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.—
'^Mach. . . . Now witchcraft celebrates
Pale Hecates offerings; 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 hut
expresses, in this "double trust," the law as it then existed.
^Macbeth, Act II, Scene I.
n 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 Goll, 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 V 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:
'*0lo. . . Unless it were a bloody murderer,
Or foul felonious thief that fieec'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.)
MACBETH. 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 malice."^
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:
"<Sfw/f. . 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:
"0. Mar. What's worse than murder, that I may name it?"
(Act V, Scene V.)
* Macbeth, Act II, Scene III.
»1 Chltty, Criminal Law, 242.
•Bacon, Max. Reg. 15.
206 THE LAW IN SHAKESPEARE.
In King Richard II, the following occurs between King Rich-
ard and the Duke of Lancaster:
"K. 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, FalstafE replies to the Chief Justice: "Fal. . .
all the other gifts appertinent to man, as the malice of this age
shapes them, are no*t 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: '•£". 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:
*'Olo. . . 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, Mar. God forbid any malice should prevail, that fault-
less should condemn a nobleman." (Act III, Scene IL)
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: ''Wol. 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.
Follow your envious courses, men of malice." (Act III, Scene II.)
MACBETH. 207
Sec. 165. Copyhold.—
"Macb. 0, full of scorpions is my mind, dear wife:
Thou know'st that Banquo and his Fleance lives.
Lady M. 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
which 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: "Crow. . .
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 ob.
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)
KING JOHN. 209
Sec. 168. Descent to eldest son. —
''K, John. What art thou?
Roh. 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?
Bo^t. 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.
KING JOHN. 211
Sec. 170. Child begot when father not infra quatuor
maria. —
"Roh. 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 II.)
In King Lear, Gloster speaks of his legitimate son, as his heir,
or son, "by order of law," in the following lines:
"GZo. 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 against
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
maria, when Phillip was begot, he established a prima
facia case, at common law, to the land of his father, v/hich
the bastardy of his brother would have prevented him
from inheriting.^
^Coke, Litt, 244; 1 Bl. Comm. 456, 457.
U 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: "Olo. . . Tell them, when that my mother went with
child,
Of that insatiate Edward, noble York,
My princely father, then had wars in France;
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.)
KING JOHNi 213
Sec. 171. Legitimacy of child born during lawful wed-
lock.—
"K, John. Sirrah, 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 were 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 bom after
marriage, unless for special matter,"^ and Mr. 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.
'Reglna 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.
hijfiband shall be presumed, unless the contrary can be
shown."^ 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 f 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.—
"Roh, 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 will 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
'Bl. 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.
KING JOHN. 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 landless 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,
above 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 Shallow, Falstaff said, in 2' Henry IV (Act III,
Scene II): "Fa?. . . And now is this 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: *'8hal. 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 in 1' Henry VI:
''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: *'lden. 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 Faulconbridge ?
Bast. As faithfully as I deny the devil.
Lady F. King Richard Coeur-de-lion was thy father ;
By long and vehement suit 1 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.2 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 the 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 Caesar's
ambitious nature: "Gas. 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.)
KING JOHN. 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 Cressida, 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.
KING JOHN. 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
Removed 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 travelers, 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 ''briefs 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, between two 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: "Duch. 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.
KING JOHN. 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
with 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 with
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 knowl-
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
would 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:
"/Sfat. 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.)
KING JOHN. 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 witnesses 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, see. 1.
''King John, Act III, Scene I.
"Bacon, Abr.; Cruise, Dig. 22.
224 THE LAV/ 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 authority 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 Palstaff'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.
n Bl. Comm. 44.
»King John, Act IV, Scene III.
KING JOHN. 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 author ity."^
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."
!. 187.
Appellant.
188.
Accuser and accused.
189.
Impeachment.
190.
Deposing, according to Law.
191.
Trial by battle.
192.
Party-verdict.
193.
Reversion.
193a
. Dying declarations.
194.
Waste upon real estate.
195.
Landlord.
196.
Lease — Tenement.
197.
Possessed.
198.
Royalties.
199.
Attorneys-General.
200.
Letters-patent.
201.
Seize.
202.
Pine.
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.—
"Boling, 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)
RICHARD THE SECOND. 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 tells 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 II, 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.
2 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:
*'Yorlc. Now by mine honour, my life, my troth.
I will appeach the villain." (Richard II, Act V, Scene II.)
Clarence's son, on speaking of his father's death, in Richard
III, said: "/Sow. . . 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.
RICHARD THE SECOND, 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 may, but not revenge thee dead.
Nor. (Rising) 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 ofi^ 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
RICHARD THE SECOND. 231
trial was allowed 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:
"Yer. 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 tried 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:
"Olo. 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
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. O God: Have I overcome mine enemies in this presence?
O 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.
AW. 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.
RICHARD THE SECOND. 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
lArch. 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 your hold verdict enter talk with
lordsr (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. Fst a verdict?" (Act I, Scene I.)
Describing her lover, the "fickle 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
^Tiedeman, R. P. (3d ed.), sec. 291.
=^2 Bl. Comm. 175; 4 Kent's Comm. 849.
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: "Doug. '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.)
3 Richard II, Act II, Scene I.
RICHARD THE SECOND. 234a
Sec. 193a. Dying declarations. —
^* Gaunt. 0, but they say the tongues of dying men
Enforce attention like deep harmony;
Where words are scarce^ they are seldom spent in
vain,
For they breath truth that breath their words in
pain.
He that no more must say is listen 'd more
Than they whom youth and ease have taught to
gloze ;
More are men's ends mark'd than their lives be-
fore."^
In these lines the poet expressed, in true legal fashion,
the reason that makes that class of hearsay evidence,
known as *' dying declarations," competent, when re-
peated by those who wrote them down, or accurately
took the words of the person, made under the sense of
impending death, legal evidence, in courts of justice.^
Dying declarations, or those statements made in ex-
tremity, by a person near the point of death, when every
worldly hope is gone, and likewise all motives of false-
hood are forever at rest, are universally recognized as
having such probative force, because made under such
powerful considerations as to impell the truth, that
courts, like all men, receive the statements as evidence of
the fact referred to.^
This class of evidence is subject, of course, to certain
^ Richard II, Act II, Scene I.
' This is the fourth exception to the rule excluding hearsay evi-
dence as presented by Prof. Greenleaf. See Greenleaf, on Evi-
dence, Vol. I; Wigmore, on Evidence, Vol. II. Judge Wigmore
has a most instructive discussion on this subject in his recent
excellent work on Evidence, to which the reader is referred.
'As said by Lord Chief Baron Eyre, "A situation so solemn
and so awful is considered by the law as creating an obligation
equal to that which is imposed by a positive oath, in a court of
justice." Greenleaf, Evidence supra.
234b THE LAW IN SHAKESPEARE.
legal limitations, which it is not necessary to present here,
but the reason for the competency of such hearsay evi-
dence, was clearly expressed by Shakespeare, in these
lines, because, in law, ''the tongues of dying men enforce
attention," . . . ''for they breath truth," and herein
lies the reason for the legal exception excluding hearsay
evidence in courts of justice.
Discussing the circumstantial guarantee of the relia-
bility of such statements, arising from the solemnity of
the situation. Judge Wigmore, referring specially to
the fact that this rule was recognized by Shakespeare,
before it came generally to be recognized as a rule of
law, says: "All courts have agreed, with more or less
difference of language, that the approach of death pro-
duces a state of mind in which the utterances of the dy-
ing person are to be taken as freed from all ordinary
motives to misstate. The great dramatist expressed the
common feeling, long before it was announced by judi-
cial opinion."*
^ II Wigmore, on Evidence, Sec. 1438, p. 1804.
*'Melun. Have I not hideous death, within my view,
Retaining but a quantity of life.
Which bleeds away, even as a form of wax
Resolveth from his figure 'gainst the fire?
What in the world should make me now deceive.
Since I must lose the use of all deceit?
Why should I then be false, since it is true
That I must die here and live hence by truth?"
(King John, Act V, Scene 4.)
Horatio, in advising the Prince of Norway, of the message
from dead Hamlet, is made to say:
"Of that I shall have also cause to speak.
And from his mouth whose voice will draw no more."
(Act V, Scene II.)
In placing the dead body of Paris, in the monument, Romeo is
also made to ruminate that:
"How oft, when men are at the point of death
Have they been merry? which their keepers call
A lightning before death."
(Romeo and Juliet, Act V, Scene II.)
RICHARD THE SECOND. 235
prejudice of the reversioner or heir.^ A tenant who cuts
down trees, without the consent of his landlord, or re-
versioner,2 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 wasted 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. —
''Gaunt. . . . 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 whereby 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
charge,
Towards our assistance, we 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 1.
RICHARD THE SECOND. 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 was no dis-
loyalty, or attainder, which would destroy the right of
descent, but both the ancestor and the heir were loyal
sul)jects, 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 HI 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 laAV, 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.
RICHARD THE SECOND. 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 III.)
*King Richard II, Act II, Scene II.
"Bouvier's Law Dictionary.
RICHARD THE SECOND. 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. —
"BoUng. . . . 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 III.
'Bacon, Abr. Covenant, B; Rawle, Gov. 364; 4 Kent's Comm.
473.
*3 Coke, Inst. 169.
Warwick said to the duke of York, in 1' 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: "Glo. 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.
RICHARD THE SECOND. 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.—
^'Boling. . . . 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:
"0. 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. . . . Let's 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 want 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.
1, by attorney, bless thee from thy mother, Who prays continually
for Richmond's good." (Act V, Scene III.)
*King Richard II, Act III, Scene IV.
»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.
RICHARD THE SECOND. 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 w^as 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 he'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 procfeeded;
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.
RICHARD THE SECOND. 247
eign.^ 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
» 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 signorles, 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 writing 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*
^9 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.
RICHARD THE SECOND. 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:
"GZo. The manner of thy vile outrageous crimes,
That therefore I have forg'd, or am not able
Verbatim to rehearse the method of my pen."
(Act III, Scene I.)
Lucrece complains at the night of her great wrong:
"'0 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 II, 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
within 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:
"Glo. Stand back, thou manifest conspirator.
Thou that contriv'dst to murder our dead lord."
(Act I, Scene III.)
York thus addresses Henry VI, in 8' 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 Csesar, Brutus
said:
RICHARD THE SECOND. 251
"Brw. O 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 monstrous visage? Seek none, conspiracy;
Hide it in smiles, and aflfibility;
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 Csesar's 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. "The Law's Delay."
219. "Peaching" on accomplice.
220. Righting 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 hath surpris'd
To his own use he keeps, and sends me word
I shall have none but Mordake 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."^
* 1' Henry IV, Act I, Scene I.
'Rolfe's First part of King Henry IV, p. 164, notes.
(252)
w
FIRST HENRY THE FOURTH. 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 concerneci
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 laws, will justify.
' V 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."^
In 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 VIII.)
i Complaining of the delay in securing his divorce, from Kath-
0, . I erine. King Henry VIII, said: "JT. Hen. These cardinals trifle
-xA I with me: I abhor the dilatory sloth, and tricks of Rome." (Act
P j 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, / G^'^
That what they do delay, they not deny.
Pom. Whiles we are suitors to their throne, decays
thing we sue for." (Act II, Sc^ne L)
Lear, Albany speaks of the "nether crimes," that can
be venged. (Act IV, Scene II.)
The King, in Hamlet, speaks of the law's delays as follows:
(1^^ "We should do when we would; for this would changes,
I « } And hath abatements and delays as many.
As there are tongues, are hands are accidents."
(Act IV, Scene VII.)
»!' Henry IV, Act II, Scene II.
® _^
\A ^ The thin
yy -^ V>^ "so speedily"
FIRST HENRY THE FOURTH. 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-
eessed 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 II i
'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 Palstaff. (Rolfe's 1' part of King Henry IV, p. 191.)
"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/'i
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. —
'"P. 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.
^1' Henry IV, Act II, Scene IV.
FIRST HENRY THE FOURTH. 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.
2 Coke, 2' Inst. 214; 1 Bl. Comm. 426.
3 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'a
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 unto 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 arresl
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' 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.)
FIRST HENRY THE FOURTH. 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-
son, 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.
M Bl. Comm. 243.
3 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:
"C^. 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.)
*1' 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,
Enfeoff '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.
2 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.
FIRST HENRY THE FOURTH. 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 my 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 (is
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.—
'T. Hen. . Percy is but my factor, good my lord.
To engross up glorious deeds on my behalf;
And I will call him to so 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."
^1' 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.
* r Henry IV, Act III, Scene II.
■* 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:
'Tot. . . 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.
FIRST HENRY THE FOURTH. 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 no 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:
''8ur. 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.
*1' Henry IV, Act V, Scene IV.
■^Vlner, Abr. Counterfeit.
264 THE LAW IN SHAKESPEARfe.
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, my
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.)
FIRST HENRY THE FOURTH. 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 Sir 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.
^ 1' 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 OP 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. Commitment for Contempt of Court.
246. Law no respector of persons.
247. Falstaff's Commitment to prison.
Sec. 233. Accomplices. —
"Mot. 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.
M 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)
SECOND HENRY THE FOURTH. 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.
Fat. ... 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. Cli-ff. 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: "JE". 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 1850, (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 Plaminius: "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 II.
»III Reeve's History Eng. Law, 345.
SECOND HENRY THE FOURTH. 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 old 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 colour
Our sister speaks of: — Come, bring away the stocks.
Olo. 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 jt 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 H.)
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."^
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 service. Military service, under the feudal sys-
tem, was evidently "this land service" referred to, for
^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:
"Q. Mar. . . This 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 I, Scene II.
SECOND HENRY THE FOURTH. 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 the 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. Coram. 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 11, 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 w^ord
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 w^ord used, in this same
connection, so he must have been familiar with this
statute.
Sec. 241. Inns of court. —
''Shot. 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 yet."*
"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, ^. 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
SECOND HENRY THE FOURTH. 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. Ill, 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: ''8hal. . . . 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."^
Jeffreys 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 11.)
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.
SECOND HENRY THE FOURTH. 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, wdthout 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.
^7 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.)
SECOND HENRY THE FOURTH. 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.
^1 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: ''K. 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.
SECOND HENRY THE FOURTH. 279
Sec. 247. Falstaff's commitment to prison. —
^^Ch. Jus. Go carry Sir John Falstaiff to the Fleet.
Take all his company along with him."^
This is the Chief Justice's sentence against the 'Tat
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. —
'Xant. 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
sectaries, 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.
2 III Reeve's History Eng. Law, p. 426.
(280)
HENRY THE FIFTH. 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 two 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.
"Ill 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 Henry 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.
HENRY THE FIFTH. 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, within 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 writing 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 mystery 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.
"Ill 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 make against your highness' claim to France,
But this, which they produce from Pharamond, —
In terrain Salicam mulieres ne'succedant,
No woman 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;
Who, holding in disdain the German women,
For some dishonest manners of their life,
Establish'd there this law, to-wit, 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 France 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.
HENRY THE FIFTH. 285
Howbeit they would hold 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."^
^ 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 Sallans, 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, was 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.
2 Bacon, A'br.; 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 IV.)
''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."
^Z Bl. Comm. 6; Coke, Litt. 142, 161.
HENRY THE FIFTH. 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,
Congruing 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. ... 0 Lord: here's corporal Nym's — now
we shall have wilful adultery and murder commit-
ted. Good lieutenant Bardolph, — good corporal, offer
nothing here."*
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.
n 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 on 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.
M 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.
HENRY THE FIFTH. 289
had been ^^chew'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 III.)
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,
Join'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.
n Bishop's Cr. Law, sec. 221; 1 Chitty, Cr. Law, 233; 8 Coke,
146; 1 Greenleaf Evid. sec. 18; 9 Coke, 81a.
2 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.)
HENRY THE FIFTH. 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 arbitrcment 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.
' Bouvler'8 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 f ear'd the death, they have borne
life away ; and 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 which they are now visited.
Every subject's duty is the king's; but every sub-
ject's soul is his own."i
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 non 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, which 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.
HENRY THE FIFTH. , 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, in
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.—
''Flu. 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 OP 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 felo 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 applying 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 "killing 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: "Anne: If I thought that, I tell thee, homicide. These
nails should rend that beauty from my cheeks." (Act I, Scene
II.)
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.)
^ 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.
FIRST HENRY THE SIXTH. 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 offenders 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.
2 Bacon, Abr.; Duller, Nisi Pr. 226; Dane, Abr.; ch. 96a; Brooke,
Abr.
' Bouvier's Law Dictionary.
York said, in 2' Henry VI: "York. ... as I hear, 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, hy the Grace of Ood, 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 j 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.
n' Henry VI, Act II, Scene IV.
"Wharton, Law Lexicon.
FIRST HENRY THE SIXTH. 299
Sec. 269. Outlaw.—
''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:
'Vlo. 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.)
» r Henry VI, Act III, Scene I.
* Bacon, Abr. Outlawry; 3 Bl. Comm. 283, 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, Octavlus, Antony and Lepldus, have put
to death a hundred senators." (Act IV, Scene III.)
300 THE LAW IN SHAKESPEARE.
Sec. 270. Contract.—
*^K. Hen. 0 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 to,^ 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: "if. 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.)
FIRST HENtlY THE SIXTH. 301
Sec. 271. Partners.—
''Bur. 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. 2 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: "GZo. . . . 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: '*Ant. . .
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 bear 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.
n' Henry VI, Act III, Scene IV.
^ I Reeve's History Eng. Law, 198.
"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.
FIRST HENRY THE SIXTH. 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 {his 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. ComprQmise. —
''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. 2 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' Henry VI, Act V, Scene IV.
''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. —
''Suff. 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.
agreed 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: "Glo. 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 cardinal. The article o' the combination drew, as himself
plead'd." (Henry VIII, 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 11.)
In Coriolanus, Cominius said: "Com. . . . send us to Rome,
the best, with whom we may articulate, for their own good, and
SECOND HENRY THE SIXTH. 307
Sec. 277. Bargain and sale.—
"York. ... So York must sit, and fret, and bite his
tongue,
While his own lands are bargained 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 Eoger 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 afterAvards burned at Smithfield, as
stated at the time in the chronicles, as wxll as in the play.^
Sec. 279. Pursuivant.—
"Sujf. . . . 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, poursidvant, 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.
SECOND HENRY THE SIXTH. 309
The costume of a pursuivant of the king was a surcoat,
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: "K. 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 T, 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. 2 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 term 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 Kurd, 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.
SECOND HENRY THE SIXTH. 311
Sec. 282. ** Rigour of the law."—
''York. . . . I do beseech your majesty,
Let him have all the rigour of the law."^
Eigour 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 practic'd 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,
» 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 asks 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: ''Bra. ... I therefore apprehend and do attach thee,"
etc. (Act I, Scene II.)
SECOND HENRY THE SIXTH. 313
The sixth, was Thomas Woodstock, duke of Gloster;
William of Windsor was the seventh, and last.
Edward, the Black Prince, died before his father;
And left behind him, Eichard, 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 Fomf ret ; 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 was 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' 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.
3 2' Henry VI, Act II, Scene III.
* De Jure Belli, b. 2, c. 20.
SECOND HENRY THE SIXTH. 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 declarar
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 offense one in magnitude sufRcient 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.
*2' Henry VI, Act H, Scene HI.
316 THE LAW IN SHAKESPEARE J
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 male 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 offences 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.*
iRale, Hist. Com. Law, 188; 3 Sh. 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
""Magjia 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.
SECOND HENRY THE SIXTH. 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,
whose 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: "G?o. 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:
'Vorn. Pinion him like a thief, bring him before us.
Though well we may not pass upon his life.
Without the form of justice." (Act III, 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.
in 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:
''Alcial). . . . his service done at Lacedaemon and Byzantium,
were a suflacient 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 Bella,
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.)
SECOND HENRY THE SIXTH. 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.2 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.)
*2' Henry VI, Act III, Scene I.
»1 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
blam'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, Evld., 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 III, Scene I.
'Bouvier's Law Dictionary.
King Henry tells Richard, in 3' Henry VI: "E. 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 Clafence, 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.
SECOND HENRY THE SIXTH. 321
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 propagandas, was contrary to
established laws.
Sec. 294. Sales of meat during Lent. —
''Cade. They fell before thee like sheep and oxen, and
thou behavedst 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, Lltt. 184b; 2 BI.
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, \ct IV,
Scene VII.)
»2* Henry VI, Act IV, Scene III.
*V Reeve's History Eng. Law.
•Rolfa'i T Henry VI, p. 219, notes.
322 THE LAW IN SHAKESPEARE.
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,2 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.
» 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 my will and grant; And, for this once, my
will shall stand for law." (Act IV, Scene I.)
» 2' Henry VI, Act IV, Scene VII.
SECOND HENRY THE SIXTH. 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 wherein
it is to be decided or tried.^
Cade gloats over Lord Say, in these lines, and boasts
that he has power both over the subject-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, our 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 abominable 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
* 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
SECOND HENRY THE SIXTH. 325
clergy a crime, instead of a defense, as evidenced 'oy 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?
Clerk. 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 cases, 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 Rufford. 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 SHAKESPEARE.
Sec. 298. Determining causes. —
"Say. Long sitting to determine poor men's causes
Hath made me full of sickness and diseases."^
Deterniining 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 of me in capite: and we charge and
command that their wives 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
opposed, 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 Bng. Law, p. 158.
* 2' Henry VI, Act IV, Scene VII.
^Crabb's Eng. Law, 103-104; 3 Bl. Comm. 58.
»2' Henry VI, Act IV, Scene VII.
SECOND HENRY THE SIXTH. 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 by 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.
♦1 Chitty, 286.
^' See Statutes 23 Hen. VI, c. 9; III Reeve's Hist. Eng. Law,
p. 481.
"See Statutes, 12 Geo. I, c. 29; 21 Geo. II, c. 3; 19 Geo. Ill,
c. 70.
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 unconstrain'd,
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 'Hhe king
never dies." This principal, which prevented any inter-
regnum,2 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 Bl. Comm. 191.
(329)
330 THE LAW IN SHAKESPEARE.
familiar with the English 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 oflace remains perpetual. Plowd. 117, 234.
THIRD HENRY THE SIXTH. 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.
»9 Coke, 142 a.
•Coke, Litt. 295; Toullier, De. Civ. Fr. 1. 3, t. 3. c. 6n, 476.
♦S'Hemry 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 w^ar, 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. Hannlng, 7 East, 102, 103.
Queen Margaret tells the King: "Q. Mar. Thou would'st have
left thy dearest heart-blood there, Rather than made 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.
THIRD HENRY THE SIXTH. 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 thy sepulchre,
And creep into It, far before thy time?" (3' Henry VI, Act I,
Scene I.)
'3' Henry VI. Act II, Scene II.
n 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 widow 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 w^as a species of marriage, and was
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.
THIRD HENRY THE SIXTH. 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 embryoMic 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? •
0 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 upon 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. Upon 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 HI, Scene H.
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 have 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:
"IT. 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:
*'Glo. ... 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 l)orn with teeth:
And so I was; which plainly signified —
That I should snarl and bite and play the dog."
(3' Henry VI, Act V, Scene VI.)
THIRD HENRY THE SIXTH. 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. —
'Vlo. . . . 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.
THIRD HENRY THE SIXTH. 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 w^ere, 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.
' I 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 superflui 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.
THIRD HENRY THE SIXTH. 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 that 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 modern
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 wanion 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 by them ; —
Why I, in this weak piping time of peace,
Plave 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 criminality, 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 enemy, 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."2
^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
RICHARD THE THIRD. 344a
Sec. 312a. Ordeal of the bier.—
''Lady Anne. ... 0 gentlemen, see, see! dead Henry's
wounds
Open their congeaPd mouths and bleed afresh."^
When Gloster here is made to interrupt the funeral
procession of Henry VI, Lady Anne, as if familiar with
the old law of ordeal, known as the ordeal of the bier,
exclaims to the bystanders that the guilty presence of the
murderer has made the wounds of the deceased to open
and cry out against him.
For centuries murderers were tried by ordeal, and the
tests of the red-hot iron, for the patricians, and of the
hot water, for the rustics and common people, were
among the most reliable methods in use for determining
their guilt or innocence. By the ordeal of the bier, here
referred to, the suspected murderer was required to ap-
proach and touch the body of the murdered person; when
it was supposed, if he was guilty, to bleed afresh, or to
foam at the mouth, or give other evidences of the pres-
ence of the murderer.^
This proceeding, which obtained for centuries in the
English law, was finally abolished in the year 1219, by
the Council of Henry III, after which it was used again
only in the trial of witches and sorcerers, because of the
supposed absence of direct evidence against them.^
*'The ordeal of the bier was exemplified in the cur-
rent literature of the age of Richard Coeur-de-Lion, for
the histories of that king report that when he met the
funeral procession of his father, Henry II, at Fontev-
» Richard III, Act I, Scene II.
'Lea, "Superstition and Force" (3rd ed.), pp. 315, 323; White's
"Legal Antiquities;" Pattetta, Ordalie; 1 Reeve's History Eng-
lish Law, 203; Herbert's Antiquities (1804), p. 146; Leges
Athelstane; 1 Pollock & Maitland's History English Law, 152; II
Idem., 599, 650; Leg. Henrici, I, cap. Ixv.
• II Pollock & Maitland's History English Law, pp. 599, 650.
344b THE LAW IN SHAKESPEARE.
raud, the blood spurted from the nose of the deceased,
because of the treason and rebellion of which his son
had been guilty.
''Shakespeare utilizes this story of Richard Coeur-de-
Lion, in the funeral scene in Richard III.*
**The circumstances and conditions under which ordeal
was employed, in the trial of the various felonies known
to the early Saxon laws, varies, necessarily, with the
customs and legislation of the different rulers, and some-
times we find that the right of selection obtained, be-
tween this and other modes of compurgation, or between
the different forms of ordeal. ' '^
* White's "Legal Antiquities," p. 166.
^ Ante idem., 168; II Comti, pole. cap. xxx, xii; L. Henrici, I.
cap. ixv, sec. 3.
"In Sir Walter Scott's 'Minstrelsy of the Scottish Border' we
also find reference to this ordeal of the bier, when, in the ballad
of Earl Richard, this author established the innocence of the
maid, by this test:
'Put na the wite on me,' she said;
'It was my may Katherine.'
Then they hae cut baith fern and thorn.
To burn that maiden in.
It wadna take upon her cheik.
Nor yet upon her chin;
Nor yet upon her yellow hair,
To cleanse that deadly sin.
The maiden touched that clay-cauld corpse,
A drap it never bled;
The ladye laid her hand on him.
And soon the ground was red."
And thus Scott uses the ordeal of the bier to establish that
the accuser was herself the guilty person, and the Bard of Avon
and the Elder Edda utilize this ordeal and that of the boiling
water, to demonstrate the infallibility of this Divine Test, when
applied, to ascertain the guilt or innocence of one accused of
such crimes as may legitimately be the subject of this charac-
ter of proceeding, known to the ancient law as one of the Judg-
ments of God." White's "Legal Antiquities," pp. 166, 167.
RICHARD THE THIRD. 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 shall 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
bis trial, whether he would go to trial by ordeal, or by jury, 1. e.,
by Ood or his 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 Eichard 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.
*1 Hale, Cr. PI. 615.
M Bl. Comm. 37.
RICHARD THE THIRD. 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, T
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 understanding, and for this reason the person so
found was not 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 villainy
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, when 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 winning 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:
**8tan. . . . Bear with her weakness, which, I think, pro-
ceeds. From wayward sickness, and no grounded malice." (Act
I, Scene III.)
*King Richard III, Act I, Scene III.
RICHARD THE THIRD. 349
Sec. 319. Warrant no protection against murder. —
"1 Murd. 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 opens 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: "Olo. , . .
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 detects 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 Comm. 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 swords.
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.)
RICHARD THE THIRD. 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, lie
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
bis conscience." (Act IV, Scene I.)
Cranmer tells his peers, In the Council Chamber, in King
Henry VITI: 'Vran. . . . 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.)
?52 THE LAW IN SHAKESPEARE.
?ec. 321. Reward.—
' ' 1 ' Murd. Remember our reward, when the deed *s done,
2 ' Murd. Zounds, 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
& 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 I, Scene IV.
M Bl. Comm. 294.
n 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.)
RICHARD THE THIRD. 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
which the guilt of a person accused of crime, is legally
ascertained and upon which the sentence or judgment is
founded.2 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- \y
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 w^ho 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.
RICHARD THE THIRD. 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."^
Richard 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: "Qrif. . . . 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 Marclus." (Act I, Scene IX.)
'King Richard 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 willful 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 III, 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
Grey, because of the pre-contract of marriage by the King to
Lady Lucy, Buckingham contends, in King Richard III: ''Buck.
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."
(Act III, Scene VII.)
*King Richard III, Act IV, Scene IV.
RICHARD THE THIRD. 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 earth, 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 impunity.
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 ^J
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. Richard 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:
"0. FAiz. 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.)
4
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 his 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.
2 Goll's Criminal Types in Shakespeare, 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 una voided 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. . . . From forth 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 lambs, and lap their gentle blood;
That foul defacer of God's handiwork;
RICHARD THE THIRD. 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 Eichard 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 III, 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 Bouvler'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 were to him, but as an obstacle to be
overcome, when in the way 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. Kath. . .
Heaven is above all yet; there sits a Judge, that no king can
corrupt." (Henry VIII, Act III, Scene I.)
« King Richard III, Act V, Scene III.
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 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 with 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 war
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.
HENRY THE EIGHTH. 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 was brought again to the bar, — to hear
His knell rung out, his judgment, — he was stinr'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.
HENRY THE EIGHTH. 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,
follow^ed 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 justly: 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. ChaUenging 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 hy 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.
HENRY THE EIGHTH. 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,
r Inst., 294.)
L
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 Henry 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. VI, 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
HENRY THE EIGHTH. 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 bother with small
affairs, but received retainers from the powers of the earth
alone.
Sec. 340. Appearance in Court. —
''Q. Kath. . . .1 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 wa^
to abolish the effect of the canonical decree, as this marriage wat
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 Katherine 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 II, Scene IV.
HENRY THE EIGHTH. 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 sealing
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 counsel's 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 injustice^ 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
^ 3 Coke, Inst., 169.
^'King Henry VIII, Act II, Scene IV.
'3 Bl. Comm. 305.
*Klng 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 was 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
out 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.)
HENRY THE EIGHTH. 373
Sec. 345. Trial at law.—
''Cam. . . , if the trial of the law overtake 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.^ 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 IJ.
*2 Bl. Comm. 514; 4 Bacon's Abr., 86.
Surrendering his earthly effects to the king, after the issuance
of the writ of %traemunire against him, Cardinal Wolsey said, in
King Henry VIII:
"Wol. 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
wril 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.—-
"Suff. 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
Caius Marcius, in Coriolanus, said: "1 Git. ... 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.
» Rutherf orth, Inst., 105.
HENRY THE EIGHTH. 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 LAV/ 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 appeared 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 shows that the decree of divorce
from his marriage w^ith 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. 38.)
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 was 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
HENRY THE EIGHTH. 377
Sec. 350. Simony. —
'^Kath. ... 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, was 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-
"learued 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-
serviaiice 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 ot
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 lime, but the maxim is, ''Quod ab initio non 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 aa it was, in
fact, had the outward semblance to legality.
» King Henry VIII, Act IV, Scene II.
'Bouvier's Law Dictionary.
»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
1 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.
2 King Henry VIII, Act V, Scene I.
' Bouvier's Law Dictionary.
"- 3 Bl. Comm. 341.
HENRY THE EIGHTH. 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 :::;as increased.^
Sec. 353. Accusing one, face to face. —
*'Cran. ... I do beseech your lordships,
That, in this case of justice, my accusers,
Be what they will, may stand forth 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 land."^ 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 of 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 judge 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.
HENRY THE EIGHTH. 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."
8 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.
We find, in the book of Esther, that ''This was the cus-
tom, that no man durst gainsay the letters which were sent
in the King's name, and were sealed with Ms ring.''
(Esther, ch. VIII, 8.) See, also, ''The Castle of Otranto,"
p. 100.
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. —
''Pro 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 seq.
•The word implies that the act was forcible and against the
will. 3 Chltty'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. 2
Sec. 360. Justice residing between right and wrong. —
"Ulyss. . . . Take but degree away, untune that
string.
And, hark, what discord follows: each thing meets
In mere oppugnancy : The bounded waters
KShould 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.
TROILUS AND CRESSIDA. 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 Caesar: "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 'l^ress-
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 impRessment
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:
"O most potential love: vow, bond, nor space,
In thee hath neither sting, knot, nor confine,
For thou art all, and all things else are thine.
When thou impressest, what are precepts worth
Of stale example? When thou 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.)
TROILUS AND CRESSIDA. 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. —
'Tn. . . . 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 off/''
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.
^Trollus and Cresslda, Act II, Scene II.
'Rolfe's Trollus and Cressida, p. 219, notes.
^ Bouvier's Law Dictionary.
*Tiedeman's R. P. (3d ed.).
"Troihis and Cresslda, Act II, Scene II.
"1 Kent's Comm. (10th ed.) 630; Bouvier's Law Dictionary.
388 THE LAW IN SHAKESPEARE.
Sec. 364. Laws protection of marital relation. —
^^Hect, . . . Nature craves,
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. & Div.
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.
TROILUS AND CRESSIDA. 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, especially 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 wfiere 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 Cressida, Act II, Scene III.
' Heard, Libel & Slan., Sec. 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.
"Bouvler's Law Dictionary.
390 THE LAW IN SHAKESPEARE.
Sec. 367. A kiss in fee-farm. —
"Pan. . . . Alas, the day, how loath you are to
offend 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., ''In Witness whereof, the parties interchangeably ,'^
of the 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 Cressida, Act III, Scene II.
TROILUS AND CRESSIDA. 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. ... 0 virtuous fight.
When right with right wars, who shall be most
right ?''^
In the contests for the enforcement of right, right is
generally pitted against wrong, hence the anomaly of
right contending with right, suggests 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.
•Trollus and Cresslda, 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.2 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 PL 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.
TROILUS AND CRESSIDA. 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.—
'Vld. 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: "Alcih. . . . And, for I know your reverend ages
love, security, I'll pawn my victories, all my honour to you, upon
his good returns." (Act III, Scene V.)
(394)
TIMON OF ATHENS. 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
by 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, Caesar 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.
»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:
"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." (Act I, Scene IV.)
TIMON OF ATHENS. 397
Sec. 377. Pity the virtue of law.—
''Alcih. 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 view 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.—
"Alcih. ... 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 Andre-
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 Sen. ^ You undergo too strict a paradox,
Striving to make an ugly deed look fair:
Your words have took such pains, as if they laboured
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 unlawful 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 offense.
Sec. 380. Killing in self-defense.-—
"Alcih. ... To kill, I grant, is 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
which 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, Scene V.
M Bl. Comm. 190.
3 Timon of Athens, Act III, Scene V.
*1 Bl. Comm. 180; 2 Rolle, Abr., 547.
I
TIMON OF ATHENS. 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."—
''A Icib. . . . 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.
2 Of this passage, Doctor Rolfe observes, in his Timon of
Athens (notes, p. 212) : "This seems to be a cynical reference
TIMON OF ATHENS. 401
Sec. 384. Bawds not competent witnesses. —
'Tim. Hold up, you 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 who were convicted of
dissolute, immoral lives, could not t^ke an oath, in court.^
In most countries, a general reputation for lack of chastity,
in male or female, affects the competency of the witness
for credibility, but not otherwise. However, Timon tells
these infamous women 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 it/
* Timon of Athens, Act IV, Scene IIIo
2 Timon of Athens, Act V, Scene IV.
'Touillier, Droit, Civ. Fr. tit. prel. n. 5.
TIMON OF ATHENS. 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."^
"Tlmon of Athens, Act V, Scene V.
i
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.
3ec. 388.
Piercing statutes. —
*'l at. . . . repeal daily and wholesome act estab-
lished against the rich; and provide more piercing
statutes daily, to chain up and restrain the poor. If
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, Abr., Statutes; Coke, 2' Inst., 200; Bouvler'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.
8 Webster's Dictionary.
Volumnia tells Coriolanus, in her appeal for clemency, and the
safety of Rome: "YoZ. ... 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:
''Cleo. . . . And it is 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 Csesar's." (Act V, Scene II.)
Posthumus puts the ring on Imogen's finger, in Cymbeline, and
tells her: "For my sake, wear this; it is a manacle of love;
I'll place it upon this fairest prisoner." (Act I, Scene II.)
The Messenger said, in Cymbeline: "Knock off his manacles;
bring your prisoner to the king." (Act V, Scene IV.)
CORIOLANUS. 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. —
"Men. I am known to be a humorous patrician, and one
that loves a cup of hot wine, with 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 nioved 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."*
^ Corlolanus, Act II, Scene I.
'Coriolanus, Act II, Scene I.
»11 Pick. (Mass.) 436.
*Corollanus, 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 by 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.
2 Wharton's Law Lexicon, (2 Lond. Ed.); Bouvier's Law Dic-
tionary.
The Romans used the word trihunalia, to indicate the seats of
the higher judges, and suh-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.)
CORIOLANUS. 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.
2 Coriolanus, Act III, Scene I.
CORIOLANUS. 411
widespread reign of lawlessness upon Rome. 'Troceed 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 wheel, or at the wild horses heels;
Or pile ten hills on the Tarpeian rock.
That the precipitation might dowr; 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 II.
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 'Vheel"
w^as inflicted upon a criminal who was placed on a revolv-
ing wheel and his bones were then broken, until he ex-
pired.2 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. 1 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:
*Taul. What studied torments, tyrant, hast for me?
What wheels? racks? fires? etc." (Act III, Scene II.)
CORIOLANUS. 413
Yourself into a power tyrannical;
For which, you are a traitor to the people.
Sic. Mark you this, people?
at. 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 city, unless their
right of voting in such trials was recognized, and thus the
comitia trihuna, a sort of rival powder 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
*Corlolanu8, 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: ">8fic. . . . 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:
''Git. It shall be so; it shall be so; let him away; he's banish'd,
and so it shall be." (Coriolanus, Act III, Scene III.)
I
CHAPTER XXIX.
"JULIUS C^SAR."
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 L
(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 ^T,"
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.
^III Reeve's History Eng. Law, 366, 367.
' Ante idem.
* III Reeve's History Eng. Law, pp. 413, 414.
JULIUS C^SAR. . 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
Caesar, the greater he himself is, because his altruism has
had the more to conquer, and the nearer he attains to the
absolutely heroic."^
* Julius Caesar, Act T, 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 tjiought 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 grown greater than himself. Considering
the criminal character of this conspirator, as presented by
the Poet, GoU 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 insufRcint knowledge." (GoU'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 IL
JULIUS CiESAR. 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. 48, 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 Caesar. (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.
JULIUS C^SAR. 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 makes 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 Caesar 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 Oassius 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."
See. 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.
JULIUS CiESAR. 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
swayed 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 Caesar 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 Gulteau, 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 ItirpK
tude cannot attach to one who acts from a high se?ise 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 comaaission
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 thus 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:
"Brw. Let us be sacrificers, but no butchers, Caius.
We all stand up against the spirit of Csesar;
And in the spirit of men there is no blood:
O, that we then could come by Caesar's spirit.
And not dismember Csesar: But, alas,
Csesar must bleed for it. And, gentle friends.
Lets kill him boldly, hut not wrathfully;
Let's carve him as a dish fit for the gods,
Not hew him as a carcase 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 Caesar loved me, I weep
for him; as he was fortunate, I rejoice at it; as he was valiant, I
JULIUS C^SAR. 425
Sec. 405. "The law of children."—
'^Csesar. 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 Caesar ''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. Caesar
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 Caesar a thing of ridicule,
and reduce his fixed, constant decrees to the plane of
childish law.^
I
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 Caesar, 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 Casslus. 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." —
"Csesar. 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.2 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.5sar,
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.
JULIUS CiESAR. 427
And dip their napkins in his sacred blood;
Yea, beg 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 Ceesar and Plutarch's Life of Antony.
428 THE LAW IN SHAKESPEARE.
Sec. 408. The effect of error.—
^'Mes. ... 0 hateful error, melancholy's child:
Why dost thou show to the apt thoughts of men,
The things that are not? 0 error, soon conceiv'd.
Thou never com'st unto a happy birth.
But kill'st the mother that engendered 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 Caesar;
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 was 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 Caesar, Act V, Scene III.
* Julius Caesar, Act V, Scene V.
JULIUS CiESAR. 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 this
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— FeZo de se.
Sec. 410. Bourn.—
"Ant. There's beggary in the love that can be reckon'd.
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)
ANTONY AND CLEOPATRA. 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 fidei 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 Bl.
lr>mm. 328.
'Bacon's Inst., 2, 23-2; 2 Bl. Comm. 333; Bacon, Law Tr. 335.
'Antony and Cleopatra, Act I, Scene IV.
*Tledeman's Real Prop. (3d ed.), Chap. Title by descent.
'Tledeman'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."^
(C
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.
*Bouvier's Law Dictionary.
ANTONY AND CLEOPATRA. 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 Englisii 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:
"7mo. 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 XXXI.
"CYMBELINE."
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. Demesnr lands.
425. Guiderius' defense of his crime.
426. Upright Justicer.
Sec. 416. Election to act in given way.— j
'^1 Gent. . . . her own price
Proclaims how she esteem'd him 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
where 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
* Cymbellne, Act T, Scene I.
' Bouvier's Law Dictionary.
In this same play, a Lord is made to say: "2 Lord. If It be a
sin 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.
CYMBELINE. 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
* Cymbellne, 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 such cases, leaves the
parties to illegal agr^eements 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
effect 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."*
Cloten 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.
CYMBELINE. 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. Forfeiters. —
''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 w^arden 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:
"0 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 Cymbellne, 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. 2
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.
CYMBELINE. 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. —
'Vul ... 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 TV, 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 : — O, 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 time, unless prevented
* Titus Andronicus, Act II, Scene IV.
' Bouvier's Law Dictionary.
TITUS ANDRONICUS. 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 remember'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 began to
forge weapons and perpetrate acts of violence. If violence
could have driven her from the earth, then the wrongs
inflicted upon the noble Titus would certainly have been
a sufficient reason for her to have withdrawn from the
earth.
Sec. 432. Libelling the Senate. —
*'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 Audronicus, Act IV, Scene IV.
' Bouvier's Law Dictionary.
•Titus Androaicus, Act IV, Scene IV.
* Bouvier's Law Dictionary.
TITUS ANDRONICUS. 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 whose 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)
PERICLES. 449
Sec. 436. Development of criminal instinct. —
''Per. . . . One sin, I know, another doth provoke;
Murder's as near to lust, 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
Goll,^ that Shakespeare possessed 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 not 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."
I (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, lil 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 accomplish'd,
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.
'Bouvler's Law Dictionary.
■Hutchinson's Carrier's (3d ed.).
•Pericles, Prince of Tyre, Act II, Scene I.
PERICLES. 451
kig 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. —
''Bawd. . . . 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 HI.
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.
PERICLES. 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.2 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)
KING LEAR. 455
Sec. 444. Entailment of estate. —
''Lear. . . . We make thee lady: To thine and
Albany'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
tall, 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 conflrmation, "Which,
to confirm, this coronet part between you."
» II 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, with 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
father, 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.
KING LEAR. 457
of parricides was the same as that of any other murderer/
but by the Roman law, a parricide was 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.
*Th6 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 twenty-flve
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. 215, notes, suvra.
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, knave, a whoreson, glass-gazing, super-
serviceable, 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 11.
2 This is Doctor Rolfe's explanation of this term. Rolfe's King
Lear, p. 218, notes.
•King Lear, Act III, Scene II.
KING LEAR. 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 IL
'Rolfe's King Lear, p. 238, notes.
» King Lear, Act III, Scene IV.
*TM8 statute repealed 18 Elizabeth, c. 3, and 35 Eliz., c. 6.
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-
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.
»II Henry VII, c. 2, and 19 Henry VII, c. 12.
» 4 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.
KING LEAR. 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 ;2 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.
2 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 were
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 was 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 VI.
8 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 groves to
face." (539, 540.)
ROMEO AND JULIET. 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. 0 simple."^
A fee-simple estate is an estate of inheritance, passing
directly 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 certain
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. 0 deadly sin: 0 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.
ROMEO AND JULIET. 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, hence, no slander, in law.*
Sec. 461. Label appended to deed. —
''Jul. . . . And ere this hand, by thee to Romeo
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.
2 The Duke of York discovered the contracts in his son's 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, Hist. Jur. Civ.; Niebuhr, Roman Hist.; Hook's Hist.
Rome.
^ IV Reeve's Hist. Eng. Law, 427.
•Bishop's Criminal Law; Bishop's Stat. Crimes.
ROMEO AND JULIET. 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 Apothecary 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 Europe, 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.
•Bouvler's Law Dictionary.
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.
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. —
"Hor. . . . 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."^
The Poet never forgets to mention the legal prerequisite
to such legal documents as this "compact," that it con-
tained a seal, 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.
*II Reeve's History English Law, 54.
(470)
HAMLET. 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 Hamlet 's 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 jregit, 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.
HAMLET. 473
license, since to accuse one of forgery would be to charge
him with an offense that would work his dishonor directly.
Sec. 467. Appurtenances. —
''Ham. . . . 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 house 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 deepest 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
which would disclose the evidence of his crime, if not by
a voluntary confession, by words, or acts, from which his
^ Hamlet, Prince of Denmark, Act II, Scene 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.)
2 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.)
HAMLET. 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 hath 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 his 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 — where "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.
according to infallible standards, the right alone prevails.
This is a beautiful picture for one who 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
interested 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 premising 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 "we 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
pending 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.
HAMLET. 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 who 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 abatement^ 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, he
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 Clo. Is she to be buried in Christian burial, that
willfully seeks her own salvation?
* Hamlet, Prince of Denmark, Act IV, Scene VII.
^Bouvler'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 persons, the writ abated."
Bracton, 414, b; II Reeve's History Eng. Law, 242.
• See The Law's 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: Argal, he, that
is not guilty of his own death, shortens not his
own life.
2 Clo. But is this law?
1 Clo. Av, marry 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. 2 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 mortis 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.
2 II Reeve's History Eng. Law, p. 275.
^Bracton, 150; ante idem.
*Bracton, 121, b, 122; II Reeve's History Eng. Law, p. 276.
HAMLET. 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.
»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 things do not
exist. Of course striking one's scull with a shovel,
would 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.) ; III Reeve's History Eng. Law, 134.
HAMLET. 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.
'Ill 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 whose voice will draw on 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
Miiller 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. Othello'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 hombast 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 the
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.
=^1 Reeve's History Eng. Law, p. 461; II idem., pp. 516, 517.
3 Othello, the Moor of Venice, Act I, Scene III.
OTHELLO. 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. —
*'Oth. 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 only take away, but let your 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.
2 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 lU.
»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.
2 Othello, the Moor of Venice, Act I, Scene III.
^Bouvier's Law Dictionary.
OTHELLO. 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,
Goll 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 which, 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 ?"i
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 III.
OTHELLO. 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. —
*'Iago. . . . 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.
0th. 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 Sherlft's
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.
Qth. 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. —
^^Oth. 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.
' GoU's Criminal Types in Shakespeare, 257, 258.
OTHELLO. 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 IH.
2 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 swear falsely,
the indictment would 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.
* 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 Adonis 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. —
'Toor 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
^ 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.
Sec. 489. Client wrecked, when attorney mute. —
"An oven that is stopp'd, or river sfay'd,
Burneth more hotly, swelleth with more rage:
So of concealed sorrow may be said;
Free vent of words 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.
VENUS AND ADONIS. 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 with 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 righ>
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 claw 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.
2 The Rape of Lucrece, 568, 574.
RAPE OF LUCRECE. 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. —
'^0 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 o^
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.
2 Cooley on Torts.
^ Ante idem. Bouvier's Law Dictionary.
*The Rape of Lucrece, 876, 882.
RAPE OF LUCRECE. 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 hlowest 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
would 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."^
1 The Rape of Lucrece, 936, 938.
^ Merchant of Venice, Act IV, Scene L
»The Rape of Lucrece, 939, 943.
RAPE OF LUCRECE. 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,
'Hill 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 would 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.
(1692-4.)
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.
RAPE OF LUCRECE. 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 others 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 without 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)
SONNETS. 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 say more that like of hearsay 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 intepd'ed for the market.
As hearsay evidence is incomr^etenj; 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. —
'Tor 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 Advocatus, 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 advocate 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
was 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 v^^ar,
How to divide the conquest of thy sight;
Mine eye my heart thy picture's sight would 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.)
SONNETS. 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, while 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. XL VI, 1, 14.
»It Is surprising that Sewell (2d ed.) and Wyndham, should
conclude 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
1 Sonnets, XLIX, 5, 14.
2 Sonnets, LXXXVII (5,8).
^Bouvier's Law Dictionary.
^Tiedeman's R. P. (3d ed.).
SONNETS. 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.
Jiis 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 Sections.
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.
Bail, 300.
Bail in criminal case, 429.
Bankrupt, 109.
Bargain and sale, 277.
Bastard, disinheriting, 172.
Bastard's right of inheritance,
169.
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.
Bier, ordeal of, 312a.
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.
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-
erine, 349.
Decrees, 60.
Deed, label to, 461.
Deed of gift, 103.
Defending manslaughter, 379.
Demesne lands, 424.
Demise, 329.
Dep rtments 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.
Dying declarations, 193a.
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 property, 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.
FalstafC'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.
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.
I
lago, the cynic antipathetic
criminal, 482.
lago's crime against Othello. 484.
Idealism the basis of Brutus'
crime, 400.
518
INDEX.
References are to Sections.
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, 85.
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.
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, 493.
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.
Ordeal, 312a.
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 crimiiials,
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.
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.
Rev/ards, 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 V's 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.
Slander, prosperity of, 78a.
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
Surety, 68.
Surmises not proof, 144.
Swords as laws during Richard's
reign, 331.
Tainted plea, 82a.
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 armiSt 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 the law, 267.
to Sections,
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.
Unlawful 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.
I
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PLEASE DO NOT REMOVE
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1913
White, Edward Joseph
Commentaries
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