JEM! 
 
 EVAN L REESE 
 
Digitized by the Internet Archive 
 
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 Microsoft Corporation 
 
 http://www.archive.org/details/commentariesonlaOOwhitrich 
 
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 LAW BOOK CO. 
 
 ST. LOUIS, MO. 
 
 1913 
 
: t.'.cfcpyfig^'iaii : 
 
 EDWARD J. WHITE 
 
 Copyright. 1913 
 
 by 
 
 EDWARD J. WHITE 
 
 IN MEMORIAM 
 
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. 
 
 901586 
 
PLAN OF 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, 1 as well, in accordance with the na- 
 tural German tendency to discover profound significance 
 in the most trifling things, 2 found that Shakespeare knew 
 
 1 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. Piske's "Forty 
 Years of Bacon-Shakespeare Folly," in Atlantic Monthly for No- 
 vember, 1897, page 652. 
 
 1 Lowell, Literary Essays, 11, 163. 
 
Vlll 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." 3 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." 4 
 
 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. 5 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 
 follow 'd" 6 — like the slander, based on hearsay, so the 
 
 4 Johnson's Works, vol. 11, p. 106. 
 
 8 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 SHAKESPEAKE. 
 
 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. ' ' 7 
 
 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 
 
 T 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, 
 355.) 
 
BACON-SHAKESPEARE CONTROVERSY. XI 
 
 "Stratford Butcher-Boy," 8 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"; 9 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." 10 
 
 When such a scholar as Emerson would refer to the issue 
 as one "Opened so that it can never again be closed," 11 
 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. 
 
 8 Delia Bacon's "Philosophy of the Plays of Shakespeare Un- 
 folded." 
 
 8 Brandes, "William Shakespeare.*' 
 
 10 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 SHAKESPEARE. 
 
 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. 12 
 
 There is undoubted evidence, in some of the plays, of 
 the work of other hands than Shakespeare 's. Henry VIII 
 was, in part, unquestionably written by Fletcher 13 and 
 perhaps parts of it by Massinger, yet there is no doubt 
 but what the bulk of the play was by Shakespeare. 14 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 
 
 12 "Shaksper not Shakespeare," 1900, and see, also, "A Cam- 
 bridge Graduate," 1903. 
 18 Rolfe's Henry VIII. 
 "Ante idem. 
 
BACON-SHAKESPEARE CONTROVERSY. Xlll 
 
 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 collaborators may 
 have assisted him, or finished some few plays that he left 
 unfinished, 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. 15 
 
 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, 16 and a respectable number of critics followed this 
 
 15 Even Voltaire acknowledged that "All the plays of the divine 
 Shakespeare are in the very same taste." Voltaire's Works IX, 
 p. 137. 
 
 16 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. 17 
 
 In the preface to the second edition of ''The Castle 
 of Otranto" and "Historic Doubts on the Life and Eeign 
 of Richard III," Walpole first expressed the theories con- 
 nected with Shakespeare 's life and writings that have led 
 to the present Baconian theory. 18 
 
 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. 19 
 
 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. 
 
 18 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." 
 
 19 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," 20 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, 
 1 ' a Mr. William Smith, " in a privately published letter to 
 Lord Ellesmere, published in London, in 1856, 21 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 22 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 
 1 ' doubts, ' ' upon which the later theory is founded and the 
 analysis and growth of this theory, are not without 
 interest. 
 
 20 Published in 1857. 
 
 21 See interesting article by John H. Clifford, in Americana, Vol. 
 XIV, tit. "Shakespeare, Authorship of." 
 
 22 "Forty Years of Bacon-Shakespeare Folly," by John Fiske, in 
 Atlantic Monthly, Nov. 1897, p. 636. 
 
XVI THE LAW IN SHAKESPEAKE. 
 
 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. 23 
 
 He regrets that ''We find so much more barbarism than 
 real genius in the works of Shakespeare, ' ' 24 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. ' ' 26 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." 27 Thus, it will be seen, that 
 notwithstanding his abuse of Shakespeare for combining 
 in his plays the most uneven facts of science, literature, 
 
 83 But he did not fail to avail himself of Shakespeare's labors. 
 See Prof. Lounsbury's "Shakespeare and Voltaire," pp. 143, 159. 
 24 Works of Voltaire, Vol. XXX, p. 59. 
 
 36 Ante idem. 
 
 26 Works of Voltaire, Vol. XXXVII, p. 137. 
 
 37 Tragedy of Hamlet, Voltaire's Works, Vol. XXXIX, p. 137. 
 
BACON-SHAKESPEARE CONTROVERSY. XVH 
 
 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. ' ' 28 
 
 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. 29 
 
 But let us examine the character of the first witness 
 to express any ' ' doubts " as to the characters in the plays 
 
 28 Ante idem. 
 
 29 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. 
 
XV111 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 
 bnt an unhealthy and disorganized mind could have pro- 
 duced such literary luxuries as the works of Walpole. 
 # * • rpj^ con fi rma tion 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. ' ' 30 
 
 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, 31 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. 
 
 S0 Macaulay's Essay, on Letters of Horace Walpole; Seely's 
 Horace Walpole and his world; Dobson, Horace Walpole. 
 31 Johnson's Life of Rowe, 348, 350. 
 
XX THE LAW IN SHAKESPEARE. 
 
 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"; 32 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 33 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." 34 
 
 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." 35 
 
 In view of Walpole 's quotation of Lord Bacon for an 
 
 32 Preface to "Historic doubts on the life and Reign of Richard 
 III," p. 13. 
 
 33 Ante idem., p. 21. 
 
 34 Ante idem., p 119, 129. 
 36 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 36 and elsewhere he quotes from Bacon to con- 
 firm others of his u doubts" as to other alleged crimes of 
 King Richard. 37 
 
 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 III, 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"; 38 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. " w 
 
 36 Ante idem., p. 56. 
 
 37 Ante idem., pp. 63, 66, 75, 93, 105, 106, 131, 136. 
 
 38 Historic Doubts, etc., p. 128. 
 
 39 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. 
 
XX11 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. 40 
 
 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 
 
 40 "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 Ellesmere, 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. XX111 
 
 her argument upon a deep hidden design, running through 
 all the plays, from which she evolves her theory that Lord 
 Bacon wrote 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. 41 
 
 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." 42 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; 43 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- 
 
 41 "If this design be buried so deeply is it not lost then?" (Phil, 
 of the Plays of Shakespeare Unfolded, p. 31.) 
 
 42 Ante idem., p. 59. 
 
 48 Ante idem., pp. 63, 100. 
 
XXIV THE LAW IN SHAKESPEABE. 
 
 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, 44 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," 45 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. 
 
 45 "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." 46 
 
 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 both,"* 7 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 
 
 48 Ante idem., p. 21. 
 47 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. ' ' 48 
 
 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." 49 
 
 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 
 
 48 Ante idem., p. 50. 
 
 49 "Philosophy of the Plays of Shakespeare Unfolded," p. 661. 
 
BACON-SHAKESPEARE CONTROVERSY. XXV11 
 
 must receive it. We must take our facts and reconcile 
 them, if we can and let them take care of themselves, if 
 we cannot." 50 
 
 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. ' ' 51 
 
 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. 
 61 Ante idem., p. 563. 
 
XXV111 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, 52 "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, 53 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 
 
 52 1866, 1886. 
 
 68 Papers of the Shakespeare Society, of New York; Digesta 
 Shakespeariana by Appleton Morgan; Thimm's Shakespearicma, 
 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 
 
THE LAW IN SHAKESPEARE. 
 
 the initials of Lord Bacon's name and letters nsed 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. 54 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. 55 
 
 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," 56 the author finds the word "I" by the fol- 
 
 64 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. 
 85 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." 57 By pursuing this 
 process, over several pages, he deciphers the words "I 
 would rather die a thousand deaths than bring such great 
 disgrace," 58 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. 
 
 Mark 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." 59 
 
 87 Ante idem., p. 194. 
 
 ™ Ante idem., p. 197. 
 
 59 "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. 
 
XXX11 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. 60 
 
 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. 61 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- 
 
 60 Ante idem., p. 50. 
 
 "Johnson's Life of Dryden, (1803), p. 243. 
 
BACON-SHAKESPEARE CONTROVERSY. XXX111 
 
 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, 62 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 IV 
 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." 63 
 
 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 SHAKESPEABE. 
 
 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." 64 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 
 
 M "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, ' ' 65 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." 66 
 
 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- 67 No scientific 
 lawyer, such as Bacon, could have written this play, or 
 
 66 "Is Shakespeare Dead," pp. 129, 130. 
 
 66 Winter's Tale, Act III, Scene II. 
 
 67 Von Ihering's "Struggle for Law," p. 80, 
 
XXXVI 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 Illyrian, Lord and Lady, all 
 discuss the jargon of the English Courts." 68 
 
 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. XXXV11 
 
 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, 
 
XXXV111 THE LAW IN SHAKESPEARE. 
 
 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, 69 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- 
 
 69 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 ''trade 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 IN 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. 70 
 
 An Irish King's Counsel, has recently found an old case 
 in Leonard's Reports, 71 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. 
 
 70 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. 
 
 n 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." 72 
 
 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. 
 
 78 George Packard, in 45 American Law Review, p. 562. 
 
Xlii THE LAW IN SHAKESPEARE. 
 
 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. 73 
 
 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. 74 
 
 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. 
 
 73 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. 75 
 
 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:" 70 
 
 "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. ' m 
 
 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, 78 Web- 
 ster, 79 Marlowe, 80 Massinger, 81 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. 
 
 78 "Mermaid" Series of English Dramatic Writers. 
 
 19 Ante idem. 
 
 80 Ward's History of Dramatic Literature; Dyce's Edition of 
 his works. 
 
 "Fleay's Biographical History of the English Drama. 
 
Xlvi THE LAW IN SHAKESPEAKE. 
 
 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, as 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," 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. ' ' 82 Writing on the blank leaves 
 of Mr. Garrick's book on Rymer's "Remarks on the Trag- 
 edies of the Last Age," Dryden said: "In the last of 
 these, Homer excels Virgil ; Virgil all other ancient poets ; 
 and Shakespeare all modern poets." 83 
 
 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 
 
 82 Works of Samuel Johnson, Vol. IX, p. 138. 
 
 83 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's, 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 1 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, u '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. 
 
 (i) 
 
THE LAW IN SHAKESPEARE. 
 
 CHAPTER V. 
 
 "MEASURE FOR MEASURE." 
 
 3ec. 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." 
 
 dec. 38. Endowment. 
 
 39. Breach of the Peace. 
 
 40. Punishment by Pressing to Death. 
 
 41. "Statutes of the Streets." 
 
 42. Qualifications ol 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." 
 
 see. 59. Term — Subscribing to Oath. 
 
 60. Decrees. 
 
 61. Penalty of the Law. 
 
 62. Attainder. 
 
 63. Taken "With the Manner." 
 
 64. "In Manner and Form." 
 
 65. Venue and Offense Charged. 
 
 66. Inheritance — Dowry. 
 
 67. Duties of Solicitor. 
 
 68. Surety. 
 
 69. Title. 
 
 70. Common — Severalty. 
 
 71. Crime of Perjury. 
 
 72. Denial of Receipt. 
 
 73. Specialties — Acquittances. 
 
 74. Apparitors — Duties of. 
 
 75. Enfranchising one. 
 
 76. Treason. 
 
 77. "Quillets" of the Law. 
 
 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. 
 
1 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 XL 
 
 "ALL'S WELL THAT ENDS WELL." 
 
 Sec. 116. Ward's— Heirs of fortune under King. 
 
 117. Giving testimony against one — Impeachment. 
 
 118. Premises. 
 
THE LAW IN SHAKESPEARE. 
 
 119. Theft. 
 
 120. Descent. 
 
 121. Lawful Act. 
 
 122. Unlawful Intents 
 
 123. Entailment— Remainders. 
 
 124. Evidence. 
 
 125. Divorce. 
 
 CHAPTER XII. 
 
 "THE TAMING OF THE SHREW." 
 
 Sec. 126. Third-borow. 
 
 127. Court-leet, 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. 
 
 136. Trespass. 
 
 > 137. Negligence distinguished from wilfulness. 
 
 138. Prisoner's fees. 
 
 139. Not guilty. 
 
 140. King's prerogative. 
 
 141. Child born in prison. 
 
 142. Commitment to jail. 
 
 143. Arraignment of Hermione. 
 
 144. Surmises, not proof of guilt. 
 
 145. Indictment. 
 
 146. Torture by "boiling in oil". 
 
 147. Lawyer's points. 
 
 148. Arrested in act, or, "Taken with the Manner. 
 
 149. Witchcraft and practice of magical* arts. 
 
 CHAPTER XIV. 
 
 "COMEDY OF ERRORS." 
 
 Sec. 150. Earnest to bind bargain. 
 151. Attachment. 
 
THE LAW IN SHAKESPEARE. 
 
 152. Arrest. 
 
 153. Breach of Promise. 
 
 154. Arrest upon mesne process — Debtor's dungeon. 
 
 155. Action "on the case." 
 
 156. Subornation. 
 
 157. Prisoner. 
 
 CHAPTER XV. 
 
 
 
 "MACBETH." 
 
 Sec. 
 
 158. 
 
 Estate. 
 
 
 159. 
 
 Execution. 
 
 
 160. 
 
 Instigation of Macbeth's crime. 
 
 
 161. 
 
 Agent. 
 
 
 162. 
 
 Trust, from fiduciary relation. 
 
 
 163. 
 
 Murder. 
 
 
 164. 
 
 Malice. 
 
 
 165. 
 
 Copyhold. 
 
 
 166. 
 
 Single ownership. 
 
 CHAPTER XVI. 
 
 'KING JOHN. 
 
 Sec. 167. Controversy — Judgment on. 
 
 168. Descent to eldest son. 
 
 169. Bastard's right to inheritance. 
 
 170. Child begot when father not infra quatuor maria. 
 
 171. Legitimacy of child born during lawful wedlock. 
 
 172. Testamentary disposition, disinheriting bastard. 
 
 173. Landed 'Squire. 
 
 174. Seduction. 
 
 175. Arbitration. 
 
 176. Usurpation — Denial of rights. 
 
 177. Equity. 
 
 178. Canon of the Law. 
 
 179. Abstract and Brief. 
 
 180. Indenture. 
 
 181. Rape. 
 
 182. Interrogatories. 
 
 183. Tithes— Toll. 
 
 184. Laws' redress of wrongs. 
 
 185. Keeping the Peace. 
 
 186. Source of Sovereign power. 
 
THE L^W IN SHAKESPEARE. 
 
 CHAPTER XVII. 
 
 'KING RICHARD THE SECOND.' 
 
 S«c. 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 age. 
 
 212. 
 
 Day of trial. 
 
 213. 
 
 Answer. 
 
 214. 
 
 Crimes. 
 
 215. 
 
 Manors. 
 
 216. 
 
 Conspiracy. 
 
 CHAPTER XVIII. 
 
 "FIRST PART OF KING HENRY THE FOURTH." 
 
 Sec. 217. King's right to prisoners, under military Law. 
 
 218. "The Law's Delay." 
 
 219. "Peaching" on accomplice. 
 
 220. Righting Grand-jurors. 
 
 221. Audi alteram partem. 
 
THE LAW IN SHAKESPEARE. 
 
 222. 
 
 Term of apprentice. 
 
 223. 
 
 Arrest upon "hue and cry." 
 
 224. 
 
 Robbery. 
 
 225. 
 
 Tripartite agreements. 
 
 226. 
 
 Enfoeffment. 
 
 ?-27. 
 
 Alien. 
 
 228. 
 
 Factor — Broker. 
 
 229. 
 
 Maiming. 
 
 230. 
 
 Reprisal. 
 
 231. 
 
 Counterfeit. 
 
 232. 
 
 Death by Judicial Sentence 
 
 CHAPTER XIX. 
 
 "SECOND PART OF KING HENRY THE FOURTH/' 
 
 233. Accomplices. 
 
 234. Assurance — Security. 
 
 235. Punishment by the stocks. 
 
 236. Infamy. 
 
 237. Laws of Land-service. 
 
 238. Action. 
 
 239. Eating flesh contrary to law. 
 
 240. "Faitors." 
 
 241. Inns of Court. 
 
 242. A "rotten case"— No Counsel in. 
 
 243. Riot. 
 
 244. "A friend i' the Court." 
 
 245. Committment for Contempt of Court. 
 
 246. Law no respector of persons. 
 
 247. Falstaffs 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. 
 
 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 embryonic 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. 11 
 
 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." 
 
 366. Underwriting one. 
 
 367. A kiss in fee farm. 
 
 368. Execution of contract by parties "interchangeably." 
 
 369. Right warring with right. 
 
 370. Consanguinity. 
 
 371. Rejoindures. 
 
 372. Attestation by "sight and hearing." 
 
 CHAPTER XXVII. 
 
 "TIMON OF ATHENS." 
 
 Sec. 373. Pawn. 
 
 374. Death penalty for homicide. 
 
 375. Joint and corporate action. 
 
 376. Hereditary taints. 
 
 377. Pity the virtue of Law. 
 
 378. Plunging into Law. 
 
 379. Defending manslaughter. 
 
 380. Killing in self-defense. 
 
 381. Felon in irons. 
 
 382. "Law is strict." 
 
 383. A cynic's view of Law — Thievery justified. 
 
 384. Bawds not competent witnesses. 
 
 385. Pleading false titles. 
 
 386. The scope of Justice. 
 
 387. Answering public Laws. 
 
 CHAPTER XXVIII. 
 
 "CORIOLANUS." 
 
 Sec. 388. Piercing statutes. 
 
 389. Manacles. 
 
 390. Alias. 
 
 391. Complaint. 
 
 392. Bencher. 
 
 393. Pleaders. 
 
 394. Tarpeian rock. 
 
 395. Resisting Law. 
 
 396. Process. 
 
 397. Death by the Wheel. 
 
 398. Trial by Comitia. 
 
THE LAW IN SHAKESPEARE. 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. Porfeiters. 
 
 422. Frankleyn. 
 
 423. Debtor overpassing bound. 
 
 424. Demesne lands. 
 
 425. Guiderius' 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. 
 
 Sec. 435. Incest. 
 
 436. Development of criminal instinct. 
 
 437. Bill of Lading. 
 
 438. Poor man's right in Law. 
 
 439. A litigious peace. 
 
 440. Serving clients. 
 
 441. Applying judgment to the Judge. 
 
 442. Modesty of Justice. 
 
 CHAPTER XXXIV. 
 
 "KING LEAR." 
 
 Sec. 443. 
 
 Divesting property. 
 
 444. 
 
 Entailment of estate. 
 
 445. 
 
 Reservation, in grant. 
 
 446. 
 
 Parricide. 
 
 447. 
 
 Identifying criminals by pictures. 
 
 448. 
 
 An "action-taking" knave. 
 
 449. 
 
 Crimes unwhipped by Justice. 
 
 450. 
 
 Summoners. 
 
 451. 
 
 "Whipped from tithing to tithing.' 
 
 452. 
 
 Imaginary trial of Goneril. 
 
 453. 
 
 Equal rank in Trial by Battle. 
 
THE LAW IN SHAKESPEARE. 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 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. 
 
16 THE LAW IN SHAKESPEARE. 
 
 482. Iago the cynic anti-pathetic criminal. 
 
 483. Law days of Courts of Inquiry. 
 
 484. Iago'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 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. 
 
 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." 1 
 
 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. 2 
 
 1 Tempest, Act I, Scene II. 
 
 2 Blackstone's Com. 87; Tiedeman's Real Prop. (3d Ed.) Ch. III. 
 The word "lieu" is also used, in Love's Labour's Lost (Act III, 
 Scene I) in the following sense: ''Arm. I give thee thy liberty, set 
 
 (17) 
 
18 THE LAW IN SHAKESPEARE. 
 
 thee from durance, and, in lieu thereof, impose on thee nothing 
 but this." 
 
 In Merchant of Venice (Act IV, Scene I) after acknowledg- 
 ment of his obligations to Portia, for the acquittance from the 
 Jew, Bassanio "in lieu" thereof tendered the three thousand du- 
 cats to Portia. 
 
 In Comedy of Errors, the Merchant advises Antipholus: "There- 
 fore, give out you are of Epidamnum, Lest that your goods too 
 soon be confiscate." (Act I, Scene II.) 
 
 In rendering homage to King Henry VI, Richard Plantagenet 
 said: "Plan. Thy humble servant vows obedience and humble 
 service, till the point of death." And the King said: "K. Hen. 
 Stoop then, and set your knee against my foot; And in reguerdan 
 of that duty done, I 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." 1 
 
 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. 2 The origin of this form of oath may be 
 traced to the Roman law. 3 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. 4 
 
 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. 5 
 
 1 Tempest, Act II, Scene II. 
 
 2 9 Carr & P., 137. 
 
 3 Nov. 8, Tit. 3; Nov. 124, cap. 1. 
 4 Rees, Cycl. 
 
 8 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. Cas. 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: "Laun. 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: 
 
 "Offi. You here shall swear upon this sword of justice, 
 
 That you, Cleomenes and Dion, have been both at Delphos; 
 And from thence have brought this seal'd-up oracle, 
 By the hand deliver'd of great Apollo's priest; and that, 
 Since then, you have not dar'd to break the holy seal, 
 Nor read the secrets in't. 
 
 Cleo. Dion. All this we swear." (Act III, Scene II.) 
 
 On pronouncing their banishment, King Richard II exacts the 
 following oath from Bolingbroke and Norfolk: 
 "K. 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 V Henry IV, Francis said to Prince Henry: "Fran. 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 Palstaff 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 tfre first thrust, I'll kill 
 him; by this sword, I will." And Pistol replies: "Pist. Sword 
 is an oath, and oaths must have their course." (Act II, Scene I.) 
 
 In 2' Henry VI, the earl of Salisbury, thus abjures his oath 
 of allegiance to the King: 
 
 "Hen. Hast thou not sworn allegiance unto me? 
 Sal. I have. 
 
 Hen. Can'st thou dispense with heaven for such an oath? 
 Sal. It is great sin, to swear unto a sin; 
 
 But greater sin, to keep a sinful oath. 
 
 Who can be bound by any solemn vow 
 
 To do a murderous deed, to rob a man. 
 
 To force a spotless virgin's chastity, 
 
 To reave the orphan of his patrimony, 
 
 To wring the widow from her custom'd right; 
 
 And have no other reason for this wrong, 
 
 But that he was bound by a solemn oath?" 
 
 (Act V, Scene I.) 
 
 Richard thus reasons that a non-official oath is without effect 
 in 3' Henry VI: 
 
 "Rich. An oath is of no moment being not took, 
 Before a true and lawful magistrate, 
 
22 THE LAW IN SHAKESPEARE. 
 
 That hath authority over him that swears; 
 Henry had none, but did usurp the place; 
 Then seeing 'twas he that made you to depose, 
 Your oath, my lord, is vain and frivolous." 
 
 (Act I, Scene II.) 
 
 Clarence thus excuses his violation of his oath in 3' Henry VI: 
 "Clar. Perhaps, thou wilt object my holy oath, 
 To keep that oath were more impiety, 
 
 Than Jeptha's, when he sacrificed his daughter." (Act V, 
 Scene I.) 
 
 In his attempt to woo the daughter of Queen Elizabeth, his 
 own niece, King Richard III swears as follows: 
 "K. Rich. . . . Now, by my George, my garter and my 
 
 crown, — 
 Q. Eliz. Profan'd, dishonored and the third usurp'd. 
 K. Rich. I swear. 
 Q. Eliz. By nothing; for this is no oath. 
 
 Thy George, profan'd, hath lost its holy honour; 
 
 Thy garter, blemish'd, pawn'd his knightly virtue; 
 
 Thy crown usurp'd, disgrac'd his kingly glory; 
 
 If something thou would'st swear to be believ'd, 
 
 Swear then by something that thou hast not wrong'd." 
 
 (Act IV, Scene IV.) 
 
 Lucius thus swears to perform his promise to Aaron, in Titus 
 Andronicus: 
 "Luc. Even by my God, I swear to thee, I will." 
 
 (Act V, Scene I.) 
 
 And Hamlet and the Ghost insist upon Horatio and Marcellus 
 being sworn, as follows: 
 "Ham. . . . consent to swear. 
 Hor. Propose the oath, my lord. 
 Ham. Never to speak of this that you have seen. 
 
 Swear by my sword. 
 Ghost. (Beneath) Swear. 
 Ham. Hie et ubique? 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. 23 
 
 Sec. 3. The marriage contract — 
 
 "Pro. If thou dost break her virgin knot before all sanc- 
 timonious ceremonies may, with full and holy rite 
 be ministered, 
 
 No sweet aspersion shall the heavens let fall to 
 make this contract grow." 1 
 
 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. 2 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. 3 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. 4 Hilde- 
 brand declared marriage to be a sacrament of the church ; 
 Calvin declared it to be an institution of God, while Gro- 
 tius denned 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. 6 
 
 tempest, Act IV, Scene I. 
 
 2 McLennan, Prim. Mar. 
 
 3 Lubbock's Origin of Civilization; Tylor Early History of Mankind. 
 
 4 Bishop's Marriage and Divorce. 
 
 5 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. K. Phi. It likes us well: — Young 
 princes, close your hands." (King John, Act II, Scene I.) 
 
 And the following, from As You Like It: 
 "Ros. Come, sister, you shall be the priest and marry us. — 
 
 Give me your hand, Orlando: — What do you say, sister? 
 Orl. Pray thee, marry us. 
 Cel. I cannot say the words. 
 Ros. You must begin, — Will you, Orlando. — 
 Cel. Go to:— Will you, Orlando, have to wife, this Rosalind? 
 Orl. I will. 
 Ros. Ay, but when? 
 
 Orl. Why now, as fast as she can marry us. 
 Ros. Then you must say, — 7 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 TEMPEST. 25 
 
 And in the song, by the representative of Hymen, in the same 
 play, the sentiment is expressed as follows: "Wedding is great 
 Juno's crown; O blessed bond, of board and bed." (Act V, Scene 
 IV.) This is based on the legal expression, used in divorces from 
 the bed and board, i. e., mensa et thora, to distinguish divorces 
 from the bonds of matrimony, or those a vinculo matrimona. 
 
 In All's Well That Ends Well, the following occurs: "King. 
 Good fortune and the favor of the king smile upon this contract; 
 whose ceremony shall seem expedient on the 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: 
 li 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 
 Edward, she is fair and virtuous, Therefore delay not, give thy 
 hand to Warwick; And, with thy hand, thy faith irrevocable, 
 That only Warwick's daughter shall be thine. 
 
 Prince. Yes, I accept her, for she well deserves it; And here, 
 to pledge my vow, I give my hand." (Act III, Scene III.) 
 
 Speaking of his contemplated union with Elizabeth, Richmond 
 said in King Richard III: 
 
 "Richm. . . O, now, let Richmond and Elizabeth. 
 The true succeeders of each royal house, 
 By God's fair ordinance conjoin together." 
 
 (Act V, Scene IV.) 
 
CHAPTER II. 
 
 "TWO GENTLEMEN OF VERONA." 
 
 Sec. 4. Judgment unreversed — Tendered. 
 
 5. Setting up new plea — Repealing former. 
 
 Sec. 4. Judgment unreversed — Tendered — 
 "Pro. Ay, ay; and she hath offered to the doom, which 
 {unreversed) stands in effectual force, A sea of melt- 
 ing pearl, which some call tears, Those at her 
 father's churlish feet, she tendered." 1 
 
 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. 2 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. 3 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. 
 2 9 Carr & P. 513; Bouvier, Law Diet. 
 'Bouvier, Law Diet. 
 
 King Edward, in Richard III, asks as to Clarence's death: 
 "K. Edw. Is Clarence dead? the order was revers'd." (Act II, 
 Scene I.) 
 
 (26) 
 
THE LAW IN SHAKESPEARE. 27 
 
 Sec. 5. Setting up new plea. — Repealing former — 
 
 "Duke. . . . Know then, I here forget all former 
 griefs, 
 Cancel all grudge, repeal thee home again. 
 Plead a new state, in thy unrivall'd merit, 
 To which I thus subscribe." 1 
 
 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. 2 
 
 1 Two Gentlemen of Verona, Act V, Scene IV. 
 
 2 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. 
 
 Shal. Ay, cousin Slender, and Custalorum. 
 
 Slen. Ay, and Batolorum, 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, 2 
 was composed of divers spiritual and temporal Lords, who 
 were members of the privy council, and two common law 
 judges. 3 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, 4 
 hence the threat, to inflict summary punishment, by the 
 medium of such a proceeding, which had become very 
 odious to the people of England. 5 
 
 1 Merry Wives of Windsor, Act I, Scene I. 
 
 2 Coke, 4th Inst, 66. 
 
 »3 Hen. VII, c. 1 and 21 Hen. VIII, c. 20. 
 
 4 Hudson, Court Star Chamber; 4 Bl. Com. 266. 
 
 6 16 Car. 1. c. 10. 
 
 (28) 
 
MERRY WIVES OF WINDSOR. 29 
 
 Coram, means before, and by the writ coram vobis 1 or 
 coram nobis, 2 from the King's bench, the record was 
 brought before you, or before us, as the case might be, for 
 the inspection of the King's Justices. Of course the writ 
 had no application to such inferior courts as those of jus- 
 tices of the peace. 
 
 Custos Rotulorum, meant Keeper of the Rolls; was the 
 principal justice of the peace of a county and the custo- 
 dian of the records. 3 
 
 An Armiger was an armor-bearer, or Esquire, and the 
 term was applied as a title of dignity to gentlemen bear- 
 ing the arms. 4 
 
 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 compromises between you." 8 
 
 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. 8 The 
 
 1 Bl. Com. 406, note. 
 
 8 1 Archbold Pr. 234. 
 
 8 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, 
 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.) 
 Saturninus, in Titus Andronicus, thus delivers himself: "Sat. 
 Was ever seen, an emperor of Rome, thus o'er borne, Troubled, 
 confronted thus: and, for the extent of equal justice, us'd In 
 such contempt?" (Act IV, Scene IV.) 
 
 * Merry Wives of Windsor, Act I, Scene I. 
 
 * Rolfe's Merry Wives of Windsor, 149, notes. 
 
30 THE LAW IN SHAKESPEARE. 
 
 thought is, that the Parson, as an act of benevolence or 
 charity, on his part, will use his good offices to bring about 
 a settlement between Shallow and Falstaff of all differ- 
 ences growing out of Falstaff s slandering the former. A 
 compromise, is a legal contract whereby two parties by a 
 mutual understanding settle and adjust a difference be- 
 tween themselves. 1 
 
 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." 2 
 
 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. 3 The words usually 
 employed are ingress and egress, meaning the right to 
 enter upon and go from the lands conveyed. 4 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.). 
 
 3 Merry Wives of Windsor, Act II, Scene I. 
 
 3 Bouvier, Law Diet., Atk. Conv. 
 
 4 White, Mines and Mining Remedies, Sec. 124. Without a spe- 
 cial reservation of the right of ingress and egress, in a lease 
 of minerals, in land, this easement attaches as a necessary inci- 
 dent of the demise and the lessee would have a reasonable use 
 of the surface and subsoil, as well as a right to enter upon and 
 leave the premises to extract the minerals. Such easements 
 would be held to be but incidental to the express grant in the 
 lease. White, Mines & Mining Remedies, Sec. 124, p. 171. The 
 duty of providing safe means of ingress and egress to and from 
 mines, is held to be imposed by operation of law, on the em- 
 ployer operating a mine and by many states in the United States, 
 now, statutes have been passed on this subject. White, Personal 
 Injuries in Mines, Sec. 27 and citations. 
 
MERRY WIVES OF WINDSOR. 31 
 
 Sec. 9. Fee-simple — Fine and Recovery— Waste. 
 
 "Mrs. Page. The spirit of wantonness is, sure scared out of 
 him; if the devil have him not in fee-simple, with 
 fine and recovery, he will never, I think, in the way 
 of waste, attempt us again." 1 
 
 The thought here expressed is, that unless the devil 
 himself owned Falstaff, by the highest estate known to the 
 law, by acknowledgment of record, in court, his punish- 
 ment had been sufficient to prevent, or dissuade him from 
 his desire to commit further spoilation. A fee simple 
 estate is delined to be "a freehold estate of inheritance, 
 free from conditions and of indefinite duration." 2 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. 3 
 
 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. 4 
 
 Waste is any unlawful* act of spoilation 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. 6 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. 
 
 1 Merry Wives of Windsor, Act IV, Scene II. 
 
 2 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. 
 
 4 Bacon, Abr. Fine & Recoveries; Coke, Litt. 120; 2 Bl. Com. 
 349. 
 
 s 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: 
 
 "Cap. We go to gain a little patch of ground, 
 That hath in it no profit but the name. 
 To pay five ducats, five, I would not farm it; 
 Nor will it yield to Norway, or the Pole, 
 A ranker rate, should it be sold in fee." 
 
 (Act IV, Scene IV.) 
 
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 the law. 
 
 17. Action of battery. 
 
 18. Party plaintiff. 
 
 Sec. 10. Exceptions — Improper conduct. — 
 
 "Mar. By troth, Sir Toby, you must come in earlier o' 
 nights; your cousin, my lady, takes great exceptions 
 to your ill hours. 
 
 Sir To. Why, let her except, before excepted. 
 
 Mar. Ay, but you must confine yourself within the mod- 
 est limits of order." 1 
 
 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. 2 Bills of 
 exception were authorized by Statute 3 in England, in an 
 early day and the practice obtains in the United States 
 to the present day. 
 
 1 Twelfth Night, Act I, Scene III. 
 J 8 East 280 ; Douvier, Law Diet. 
 3 Westm. 2nd (13 Edw. 1) c. 31. 
 
 Iago tells Roderigo, in Othello: "Give me thy hand, Roderigo: 
 Thou hast taken against me, a most just exception; but, yet I 
 protest, I have dealt most directly in thy affair." (Act IV, Scene II. ( 
 
 (34) 
 
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. 
 Oli. Well, sir, for want of other idleness, I 'll'bide 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." 1 
 
 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 2 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. 3 After 
 admitting that her brother's soul was in heaven, the con- 
 clusion is drawn that none but a food, would mourn, and 
 thus the fact is established that the mistress is a fool, by 
 her own admission. 
 
 1 Twelfth Night, Act I, Scene V. 
 'Ayliffe, Parerg. 442; Greenl. Evid. 
 "Greenl. Evid. 
 
 Flavius, 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 Iago, 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?" 1 
 
 Misprison is a term used in the criminal law to signify 
 all misdemeanors, not given some particular name by the 
 law creating the "offense. 2 Misprisons are either negative, 
 as where the commission of a crime is concealed, 3 or posi- 
 tive misprison, which is the commission of an offense not 
 otherwise catalogued. 4 Misprisons positive are also de- 
 nominated contempts or high misprisons, 6 as referred to 
 in this verse. 
 
 twelfth Night, Act I, Scene V. 
 
 2 Coke, 3d Inst, 36. 
 
 *1 East PI. Cr. 139; 1 Russell, Crimes, 43. 
 
 * Bl. Com. 9. 
 
 5 4 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: 
 
 "Obe. What hast thou done? thou hast mistaken quite 
 And laid the love-juice on some true-love's sight; 
 Of thy misprison must perforce ensue, 
 Some true-love turned, and not a false turn'd true." 
 
 (Midsummer Night's Dream, Act III, Scene II.) 
 
 "Misprison" is also used in Love's Labour's Lost, in the fol- 
 lowing couplet: 
 
 "Biron. A fever in your blood, why, then incision, 
 Would let her out in saucers; Sweet misprison." 
 
 (Act IV, Scene III.) 
 
 The Earl of Northumberland is made to say in 1' Henry IV 
 (Act I, Scene III): "North. . . . Either envy therefore, or 
 misprison is guilty of this fault, and not my son." 
 
 Speaking of the gift of his friend to himself, the Poet uses the 
 word misprison, in the LXXXVII Sonnet: 
 
 "So thy great gift, upon misprison growing, 
 Comes home again, on better judgment making." (11, 12.) 
 
TWELFTH NIGHT. 37 
 
 Sec. 13. Sheriff's post.— 
 
 "Mai. ... 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." 1 
 
 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. 2 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 welcome to the house; if not, and it would 
 please you to take leave of her, she is very willing to 
 bid you farewell." 3 
 
 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. 4 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- 
 
 1 Twelfth Night, Act I, Scene V. 
 
 2 Rolfe's Twelfth Night, p. 159, notes. 
 
 3 Twelfth Night, Act II, Scene III. 
 
 4 Sherwood's Criminal Law; 4 Bl. Com. 5. 
 
38 THE LAW IN SHAKESPEARE. 
 
 demeanors, punishable by fine or imprisonment in jail, 
 as distinguished from the more important crimes such as 
 murder, arson, forgery, and the like crimes, punishable 
 by death or a term in the penitentiary. 1 
 
 Sec. 15. Grand- jury. — 
 
 "Fab. I will prove it legitimate, sir, upon the oaths of 
 
 judgment and reason. 
 Sir To. And they have been grand-jurymen since before 
 
 Noah was a sailor." 2 
 
 As grand-jurymen sit upon the different offenses known 
 to the law and indict or exonerate citizens for charges 
 brought against them, the proper discharge of such duties, 
 requires both reason and sound judgment. Hence the 
 comparison made, that reason and judgment have been 
 grand- jury men 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 3 and it is certain that in the 12th cen- 
 tury (by Statute 10' Hen. II) 4 if the institution did not 
 exist before, it was established in England, since which 
 time it has existed uninterruptedly. 5 
 
 i Bishop's Cr. Law; 4 Bl. Com. 5. 
 
 a Twelfth Night, Act III, Scene II. 
 
 3 Crabb, Eng. Law, 35. 
 
 4 Enacted in 1164. 
 
 6 4 Bl. Comm. 302; 2 Russell, Crimes, 616. 
 
 In r 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. 39 
 
 Sec. 16. Windy side of the law. — 
 
 "Sir To. I will waylay thee going home ; where, if it be 
 
 thy chance to kill me, — 
 Fab. Good. 
 
 Sir To. Thou killest me like a rogue and a villain. 
 Fab. Still you keep o' the windy side of the law : good." 1 
 
 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 
 
 1 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. 
 
 2 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." 1 
 
 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. 3 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. 4 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, 5 hence, the conclusion of the speaker, "though I 
 struck him first, yet its no matter," since in strict legal 
 aspect, the previous treatment would not have justified the 
 punishment subsequently inflicted and an action for dam- 
 ages would lie therefor. 
 
 twelfth Night, Act IV, Scene I. 
 2 2 Bishop's Cr. Law, Sec. 62. 
 8 2 Bishop's Cr. Law, 561. 
 
 4 Ante. idem. Strange, 593. 
 
 5 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 Iachimo, on his intemperate proposal to her, 
 in Cymbeline, as follows: 
 
 "Imo. The king, my father, shall be made acquainted of thy 
 assault." (Act I, Scene VII.) 
 
TWELFTH NIGHT. 41 
 
 Sec. 18. Party plaintiff. — 
 
 "Oli . . . 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." 1 
 
 Of course this would be an unheard of legal proceeding, 
 wherein a party was also a judge in the cause, for it would 
 lack the disinterested element which must always charac- 
 terize the judge of any controversy. 
 
 A party plaintiff in a personal action is one who seeks a 
 remedy for an injury to his rights. 2 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. 3 
 
 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. 
 2 3 Bl. Com. 25; 1 Chitty, PI. 
 8 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." 1 
 
 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. 2 It is 
 
 1 Measure for Measure, Act I, Scene I. 
 
 2 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 
 
 C42) 
 
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, 
 Dead to infliction, to themselves are dead; 
 And liberty plucks justice by the nose; 
 The baby beats the nurse, and quite athwart 
 Goes all decorum." 2 
 
 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. 3 
 
 claimed it for the father. As originally published the title page 
 of this work was as follows: "Expositiones Terminorum Legum 
 Anglorum, et Natura Brevium, cum diversis Casibus, Regulis, et 
 Fundamentis Legum tarn de Libris Magistri Littletoni quam de 
 aliis Legum Libris collectis" etc., but the text was in French. 
 IV Reeve's History Eng. Law, p. 565. 
 
 1 Rolfe's Measure for Measure, p. 151, notes. 
 a Measure for Measure, Act I, Scene III. 
 3 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." 1 
 
 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." 3 General 
 customs apply generally to a whole country and consti- 
 tute general laws, while special customs apply only to 
 special localities, or to special trades or vocations, such as 
 the mining customs of the western states, which consti- 
 tute some of our American common law. 4 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. 5 
 
 1 Measure for Measure, Act II, Scene I. 
 
 2 Bouvier's Law Diet. 
 »1 Bl. Comm. 76. 
 
 4 White, Mines & Min. Rem., Sec. 69. 
 
 5 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." 1 
 
 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. 2 It was 
 perpetuated in England by Magna Charta and is guaran- 
 teed in all the states of the United States. 3 
 
 
 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.) 
 
 1 Measure for Measure, Act II, Scene I. 
 
 2 1 Reeves, Hist. Eng. Law, 23, 84; Bracton, 155; GlanviDe, 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." 1 
 
 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. 2 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, 3 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. 
 
 1 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. O, 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 he wounded, And princes courts be 
 filFd with my reproach." (Act III, Scene II.) 
 
 Suffolk thus replies to his accusers, in 2' Henry VI: "Sufi. 
 I wear no knife, to slaughter sleeping men; but here's a venge- 
 ful sword, rusted with ease, That shall be scoured in his ran- 
 courous heart, That slanders me with murder's crimson badge." 
 (Act III, Scene II.) 
 
 And Warwick, suggests the proprieties of the situation to 
 Queen Margaret in her defense of Suffolk, as follows: "War. 
 Madam, be still; with reverence, may I say; For every word, you 
 speak in his behalf, Is slander to your royal dignity." (2' 
 Henry VI, Act III, Scene II.) 
 
 Excusing himself for his attempt to murder Margaret, Rich- 
 ard III, explains to Lady Anne: "Glo. I was provoked by her 
 sland'rous tongue, That laid their guilt upon my guiltless shoul- 
 ders." (Richard III, Act I, Scene II.) 
 
 The king refers to slander thus, in Hamlet: ". . haply, 
 slander, whose whisper o'er the world's diameter, As level as the 
 cannon to his blank, Transports his poison'd shot — may miss our 
 name, and hit the woundless air." (Act IV, Scene I.) 
 
 And Othello tells Iago, after he has aroused his jealousy of 
 his wife: "If thou dost slander her and torture me, Never pray 
 more: abandon all remorse." (Act III, Scene III.) 
 
48 THE LAW IN SHAKESPEARE. 
 
 Escal. There are pretty orders beginning, I can tell you : 
 it is but heading and hanging. 
 
 Clo. If you head and hang all that offend that way but 
 for ten years together, you'll be glad to give out a 
 commission for more heads. If this law hold in 
 Vienna ten years, I'll rent the fairest house in it, 
 after three pence a day : If you live to see this come 
 to pass, say Pompey told you so." 1 
 
 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. 2 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 
 
 Repented 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. 4 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. 
 
 1 Measure for Measure, Act II, Scene I. 
 
 2 5 M. & W. Exch. 249. 
 
 » Measure for Measure, Act II, Scene II. 
 * 4 Bl. Comm. 403; 3 Bl. Comm. 412. 
 
 In another play, the following sentence is pronounced: "King. 
 Sir, I will pronounce your sentence; You shall fast a week with 
 bran and water." (Love's Labour's Lost, Act I, Scene I.) 
 
MEASURE FOR MEASURE. 49 
 
 Sec. 26. Plea for pardon. — 
 
 "Ang. He's sentenced; 'tis too late. 
 
 Isab. 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: 
 "K. Rich. O God: O God: 
 
 That e're this tongue of mine, 
 That laid the sentence of dread banishmeat 
 On yon proud man, should take it off again 
 With words of sooth." (Act III, Scene III.) 
 
 After his exile, Norfolk said to King Richard II: 
 "Nor. A heavy sentence, my most sovereign liege, 
 And all 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: 
 "Ch. Jus. . . . After this cold considerance, sentence me." 
 
 (2' Heniy 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. 
 
 Isab. 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? O, think on that; 
 And mercy then will breath within your lips, 
 Like man new made. 
 
 Ang. Be you content, fair maid: 
 
 It is the law, not I, condemns your brother: 
 
 Were he my kinsman, brother or my son, 
 
 It should be thus with him ; — He must die to-morrow. 
 
 Isab. To-morrow? 0, that's sudden; Spare him, spare him. 
 He's not prepared for death: Even for our kitchens, 
 We kill the fowl of season ; shall we serve heaven 
 With less respect than we do minister 
 To our gross selves? Good, good, my lord,bethink you? 
 Who is it that hath died for this offense? 
 There's many have committed it. 
 
 Ang. The law hath not been dead, though it hath slept: 
 Those many had not dared to do that evil, 
 If the first man that did the edict infringe, 
 Had answered for his deed: now, 'tis awake. 
 
 ha b. 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: 0, 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, — like an angry ape, 
 Plays such fantastic tricks before high heaven, 
 As make the angels weep : who, with our spleens, 
 Would all themselves laugh mortal. 
 
 We cannot weigh our brother, with ourself : 
 Great men may jest with saints: 'tis wit in them; 
 But, in less, foul profanation. 
 
 Aug. Why do you put these sayings upon me? 
 
 I sab. 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." 1 
 
 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. 2 
 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. 3 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. 
 
 1 Measure for Measure, Act II, Scene II. 
 
 2 7 Pet. 160. 
 •Bouvier's Law Diet. 
 
 Referring to the pardoning power, as an act of clemency, the 
 Poet, in Comedy of Errors (Aet I, Seeae 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: 
 "DucK. 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: "Gam. . . 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- 
 cius, on her death bed, Queen Katherine said, in King Henry VIII: 
 "Q. Kath. O my good lord, that comfort comes too late; 'tis 
 like a pardon after execution." (Act IV, Scene I.) 
 
 In his death struggle Antony said to Cleopatra: "Ant. . . 
 I will o'ertake thee, Cleopatra, and weep for my pardon." (Act 
 IV, Scene XII.) 
 
 Reflecting upon his own guilt the King observes, in Hamlet: 
 "King. May one be pardon'd and retain the offence?" (Act III, 
 Scene III.) 
 
MEASURE FOR MEASURE. % 58 
 
 Juliet. Must die to-morrow: O injurious law, 
 That respites me a life whose very comfort 
 Is still a dying horror." 1 
 
 It is written that the law in question, as presented in the 
 old tale, from which this play is taken, 2 provided that the 
 offender "should lose his head, and the woman offender 
 should ever after be infamously noted." 3 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." 4 
 
 "Justice" was a title given, in England, to the judges of 
 the common-law courts, 5 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. 6 
 
 1 Measure for Measure, Act II, Scene III. 
 
 a Hecatommithi, of Giraldi Cinthio, published in Venice, in 1566. 
 ■ Rolfe's Measure for Measure, p. 174, notes. 
 4 Measure for Measure, Act III, Scene II. 
 
 5 Anc. Laws and Inst, of Eng.; Coke, Litt. 71b; Leges Hen. I, 
 Sees. 24, 63. 
 e 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." 1 
 
 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. 2 
 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, 3 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, 4 "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 be a 
 brave judge. P. Hen. Thou judgest false already; I mean, thou 
 shalt have the hanging of thieves and so become a rare hang- 
 man." (Act I, Scene II.) 
 
 Speaking of the Justice's duties, among those of man, whom 
 heaven hath divided into various functions, the Archbishop of 
 Canterbury, in Henry V, said: "Cant. The sad ey'd justice, with 
 his surly hum, delivering o'er to executors pale, the lazy yawning 
 drone." (Act I, Scene II.) 
 
 1 Measure for Measure, Act IV, Scene I. 
 
 2 2 Roper, Husb. & Wife, 445, 475. 
 MO Clark & F. Hou. L. 534. 
 
 * Davis, Law in Shakespeare, 70. 
 
MEASURE FOR MEASURE. 55 
 
 Sec. 30. Plea for justice. — 
 
 "Isab. Justice, O, royal Duke; Vail your regard 
 Upon a wrong'd, I'd fain have said, a maid; 
 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." 1 
 
 Mr. Webster once said : " Justice, sir, is the great inter- 
 est of man on earth." 2 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." 3 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. 4 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. 5 
 Justice is also said to be exterior and interior, the former 
 being the object of jurisprudence and the latter the object 
 of morality alone. 6 But in the broadest sense, it is a 
 simple rule of right, with the object of giving every one 
 
 1 Measure for Measure, Act V, Scene I. 
 
 2 See, Judiciary, &c, Proc. 24th Meeting Mo. Bar Ass'n. 
 
 3 Justinian, Inst b. 1, tit. 1; Coke, 2 Inst. 56. 
 
 4 Toullier, Droit, Civ. Fr. tit. prel. n. 5. 
 * Ante, idem. 
 
 •Droit, Civ. Fr. tit. prel. n. 6, 7. 
 
56 THE LAW IN SHAKESPEARE. 
 
 his own. Isabella, here, sought her own and in so seek- 
 ing sought but simple justice. Her plea therefor is cer- 
 tainly a touching appeal, calculated to move the hardest 
 heart in favor of the virtue craved. 
 
 Sec. 31. The equality of justice. — 
 "Duke. The very mercy of the law cries out, 
 Most audible, even from his proper tongue, 
 An Angeh 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." 1 
 
 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 seeking justice, as follows: 
 "Solan. 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: — my ducats: — my daughter: 
 Fled with a Christian? — my Christian ducats: 
 Justice: the law: my ducats and my daughter: 
 A sealed bag, two sealed bags of ducats, 
 Of double ducats, stoVn from me by my daughter: 
 And jewels; two stones, two rich and precious stones, 
 StoVn by my daughter: — Justice: find the girl." 
 Antipholus prays for justice from the Duke, in Comedy of 
 Errors, as follows: 
 
 "Ant. Justice, most gracious Duke, oh, grant me justice: 
 Even for the service that long since I did thee, 
 When I bestrid thee in the wars, and took 
 Deep scars to save thy life; even for the blood 
 That then I lost for thee, now grant me justice." 
 
 (Act V, Scene I.) 
 Lady Capulet begs for justice, in asking for Romeo's death, 
 in Romeo and Juliet, for the killing of Tybalt, as follows: 
 "La. Cap. I beg for justice, which thou, prince, must give; 
 Romeo slew Tybalt, Romeo must not live." (Act III, Scene. 
 
 1 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, 1 it is apparent that 
 this was understood by the Poet, and in denying Angelo 
 any "vantage" from his position, for the offense he had 
 committed, the Duke but meted out equal and exact jus- 
 tice to him, accordingly as he had dealt with Claudio. 
 
 Sec. 32. The law a gazing-stock, when not enforced. — 
 
 "Duke. My business in this state made me a looker-on, 
 here in Vienna, 
 Where I have seen corruption boil and bubble, 
 Till it o'errun the stew: laws, for all faults; 
 But faults so countenanced, that the strong statutes 
 Stand like the forfeit in a barber's shop, 
 As much in mock as mark. 2 
 
 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. 3 
 
 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.) 
 
 1 Toullier, Droit, Civ. Fr. tit. prel. n. 5. 
 
 * Measure for Measure, Act V, Scene I. 
 
 3 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." 1 
 
 As a voluntary confession of his guilt, this would be 
 evidence 2 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, 3 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 4 — 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.) 
 
 1 Measure for Measure, Act V, Scene I. 
 
 a l Mood. Cr. Cas. 27, 452. 
 
 a l Lew. Cr. Cas. 46; 4 Carr. & P. 567; 2 Russell, Crimes (3d 
 
 ed.), 876-878. 
 
 4 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." 1 
 
 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. 2 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. 3 That the Poet recognized these several duties 
 as among the attorney's promised service, is apparent from 
 this verse. 
 
 Confession is referred to in Love's Labour's Lost, as follows: 
 "King. Teach us, sweet madam, for our rude transgression 
 
 Some fair excuse. 
 Prin. The fairest is confession. 
 
 Were you not here, even now, disguised?" 
 
 (Act V, Scene II.) 
 
 In Macbeth, Malcolm is made to say: "My liege, they are not 
 yet come back. But I have spoke with one that saw him die; 
 who did report that very frankly he confess'd his treasons." 
 (Macbeth, Act I, Scene I.) 
 
 After discovery of his treason, the earl of Cambridge, said to 
 Henry V: "Cam. I do confess my fault; and do submit me to 
 your highness mercy." (Act II, Scene II.) 
 
 Cardinal Beaufort, exclaims, concerning the murder of Gloster, 
 in 2' Henry VI: "Car. . . O, torture me no more, I will 
 confess." (Act III, Scene III.) 
 
 1 Measure for Measure, Act V, Scene I. 
 
 2 1 Kent's Comm. 307. 
 
 •4 Burr. 2061; 1 Barnew. & Aid. 202. 
 
60 THE LAW IN SHAKESPEARE. 
 
 Sec. 35. Intent, distinguished from wrongful act.—. 
 
 'I sab. 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." 1 
 
 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." 2 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. 3 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. 
 
 1 Measure for Measure, Act V, Scene I. 
 2 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." 1 
 
 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 offense of seduction, which was defined as "the 
 act of a man in inducing a woman to commit unlawful 
 
 "Suff. And, were't not madness, then, 
 
 To make the fox surveyor of the fold? 
 Who being accus'd a crafty murderer, 
 His guilt should he but idly posted over, 
 Because his purpose is not executed." 
 
 (Act III, Scene I.) 
 Illustrating the criminal intent of the deliberate murderer, tb© 
 Poet makes Richard III say, while contemplating the murder of 
 his brother: "Glo. . . if I fail not, in my deep intent, 
 Clarence hath not another day to live." (King Richard III, Act 
 I, Scene I.) 
 
 The Poet asks the Painter, to tell Timon of Athens: "Poet. 
 I must say him so too; tell him of an intent that's coming 
 toward him." (Act V, Scene I.) 
 
 The King is made to say, in Hamlet, reflecting on his guilt, 
 in the murder of his brother: "King. . . My stronger guilt 
 defeats my strong intent; And, like a man to double business 
 bound, I stand in pause where I shall first begin, And both 
 neglect." (Act III, Scene III.) 
 Tarquin is made to say, in The Rape of Lucrece: 
 "If Collatinus dream of my intent, 
 Will he not wake and in a desperate rage 
 Post hither, this vile purpose to prevent?" (218, 220.) 
 
 1 Measure for Measure, Act V, Scene I. 
 
62 THE LAW IN SHAKESPEARE. 
 
 sexual intercourse with him." 1 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." 2 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. 3 
 
 Sec. 37. Punishment by marriage to prostitute. — 
 
 "Duke. , . t Proclaim it, provost, round about the 
 city, 
 If any woman's wrong'd by this lewd fellow — 
 As I have heard him swear himself there's one 
 Whom he begot with child — let her appear, 
 And he shall marry her; the nuptial finish'd, 
 Let him be whipped and hang'd. 
 
 Lucio. I beseech your highness do not marry me to a 
 whore. Your highness said, even now, I made you 
 a duke; good my lord, do not recompense me in 
 making me a cuckold. 
 
 Duke. Upon mine honor, thou shalt marry her. 
 Thy slanders I forgive and therewithal 
 Remit thy other forfeits. — Take him to prison 
 And see our pleasure herein executed. 
 
 Lucio. Marrying a punk, my lord, is pressing to death, 
 whipping and hanging." 4 
 
 This is no doubt a reference to the old Italian law, in 
 force during the lifetime of the Poet, by which the punish- 
 ment assessed against a criminal of the nature of Lucio, 
 by the compulsory marriage to a prostitute, would be 
 assessed in lieu of other penalty for his crime. 5 But the 
 
 J Bouvier, Law Diet. 
 
 2 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. 
 
 4 Measure for Measure, Act V, Scene I. 
 
 6 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. 63 
 
 Duke, in this instance does not assess this punishment, in 
 lieu of the other penalty the law authorized, but after the 
 marriage of Lucio, to the woman he had wronged, he also 
 contemplated that this offender should be whipped and 
 hanged. Lucio's reply to this judgment of the Duke, 
 that this combined the punishment assessed against those 
 criminals who refused to plead, by pressing them to death, 
 known as peine forte et dure, 1 elsewhere discussed, 2 with 
 the other punishments assessed, shows how much he ab- 
 horred the sentence of marrying a prostitute. 
 
 ^leta, lib. 1. c. 34, sec. 33; Brit. C. C. 4, 22. 
 
 8 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." 1 
 
 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. 2 The term applies 
 peculiarly to a settlement made for a wife, by which she 
 is endowed with some pecuniary provision for her sup- 
 port. 3 A dowry is a gift, or present for a bride, on 
 espousal, 4 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. 5 Benedict's statement is of course very ex- 
 travagant that he would not marry Beatrice, if she pos- 
 sessed the whole world. 
 
 1 Much Ado About Nothing, Act II, Scene I. 
 
 3 Bouvier's Law Diet. 
 
 8 4 Kent's Comm. 65. 
 
 4 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." 1 
 
 A breach of the peace is a violation of public order, com- 
 monly known as the offense of disturbing the peace. 2 The 
 remedy for such an offense is by indictment and the 
 offender may be held to bail, for his good behavior. 3 
 
 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.) 
 
 1 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. 1 
 
 The Lord Chief Justice commands the peace, in 2' Henry IV 
 (Act II, Scene I), as follows: "Ch. 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. 2 The Poet uses this punishment in different 
 plays. 3 This was known to the old common 'law ae 
 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: "Cran. . . nor is there living (I speak it with 
 a single heart, my lords), A man that more detests, more stirs 
 against, Both in his private conscience and his place, Defacers 
 of a public peace, than I do." (Act V, Scene II.) 
 
 Benvolio said to Tybalt, in Romeo and Juliet, on parting the 
 servants of Capulet and Montague: 
 
 "I do but keep the peace; put up thy sword, 
 Or manage it to part these men with me." 
 
 (Act I, Scene I.) 
 Capulet tells Paris: "And Montague is bound, as well as I in 
 penalty alike; and 'tis not hard, I think, For men so old as we 
 to keep the peace." (Act I, Scene II.) 
 
 Saturninus (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. 
 2 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 arid 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. 1 
 
 Sec. 41. "Statutes of the Streets."— 
 
 "Verges. If you hear a child cry in the night, you must 
 
 call to the nurse and bid her still it. 
 Watch. How if the nurse be asleep and will not hear us? 
 Dogb. Why, then, depart in peace, and let the child 
 
 wake her with crying ; for the ewe that will not hear 
 
 her lamb when it baes will never answer a calf when 
 
 he bleats." 2 
 
 It is quite probable that this part of this scene was in- 
 tended as a burlesque upon The Statutes of the Street, 3 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. 4 
 
 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. 
 
 1 Fleta, supra. 
 
 2 Much Ado About Nothing, Act III, Scene III. 
 
 3 Statutes of the Street, by Wolfe, in 1595; Rolfe's Much Ado 
 About Nothing, p. 190, notes. 
 
 4 Sec. 30, supra. 
 
MUCH ADO ABOUT NOTHING. 69 
 
 Sec. 42. Qualifications of constable. — 
 
 "Dogb. First, who think you the most desartless man 
 to be constable? 
 
 1 Watch. Hugh Outcake, sir, or George Seacoal ; for they 
 
 can write and read. 
 Dogb. Come hither neighbour Seacoal. God hath 
 blessed you with a good name: to be a well favored 
 man is the gift of fortune; but to write and read 
 comes by nature. 
 
 2 Watch. Both which, master constable, — 
 
 Dogb. You have ; I knew it would be your answer. Well, 
 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." 1 
 
 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. 2 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. 3 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. 4 
 
 1 Much Ado About Nothing, Act III, Scene III. 
 
 2 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. — 
 
 "Dogb. 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? 
 
 Dogb. Truly, by your office, you may ; but I think, they 
 that touch pitch will be denied: the most peaceable 
 way for you, if you do take a thief, is, to let him 
 show himself what he is, and steal out of your com- 
 pany. ... 
 
 Verg. If you hear a child cry in the night, you must call 
 to the nurse and bid her still it. 
 
 2 Watch. How if the nurse be asleep, and will not hear 
 us? 
 
 Dogb. Why, then, depart in peace, and let the child 
 wake her with crying; for the ewe that will not hear 
 her lamb, when it baes, will never answer a calf, when 
 he bleats." 1 
 
 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: "Clo. From below your duke, to beneath your con- 
 stable, it will fit any question." 
 
 J 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. 1 
 
 Sec. 44. False imprisonment. — 
 
 "Dogb. This is the end of the charge. You, constable, 
 are to present the prince's own person; if you meet 
 the prince in the night, you may stay him. 
 
 Verg. Nay, by'r lady, that I think, he cannot. 
 
 Dogb. 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." 2 
 
 This graceful backing down from a wrong position on 
 the law, as such petty officers are accustomed to do, by 
 drawing a nice distinction, such as is done in this case, 
 is well presented here. 
 
 The charge that the constable represents the prince's 
 own person, means as a conservator of the peace. The 
 charge that he possesses the authority to detain the prince 
 himself, when questioned, leads to the adroit retraction, 
 by the use of the distinction that he may be restrained, 
 if he so desires. Then following this qualification of the 
 former position, is the proper legal idea of a false im- 
 
 *3 Taunt. 14; 3 Campb. 420; 4 Bl. Comm. 292; 1 Saund. 77. 
 2 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. 1 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. 3 
 
 As the evidence of the witnesses was all written down 
 at the preliminary hearings, before magistrates, when one 
 was charged with an offense, to preserve the evidence for 
 the benefit of the court and jury, which would try the 
 accused for the offense, this is the proceeding here re- 
 ferred to, in requesting the "pen and inkhorn," as a pre- 
 liminary to the examination. 
 
 The expression that some of the offenders shall be 
 driven, by the play of his wit, "to a non-com," evidently 
 means that he will push them to the extreme of madness. 
 In legal parlance, a non-compos mentis is one not of sound 
 
 »2 Bishop, Cr. Law, 669; 4 Bl. Comm. 218. 
 a 3 Hawkins, PI. Cr. 164; 4 Bl. Comm. 292. 
 8 Much Ado About Nothing, Act III, Scene V. 
 4 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. 1 
 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. — 
 
 "Dogb. Is our whole dissembly appeared? 
 
 Verg. 0, a stool and a cushion, for the sexton. 
 
 Sexton. Which be the malefactors? 
 
 Dogb. Marry, that am I and my partner. 
 
 Verg. Nay, that's certain; we have the exhibition to 
 examine. 
 
 Sexton. But which are the offenders that are to be ex- 
 amined? Let them come before master constable." 2 
 
 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. 3 The word malefactor, 
 meaning a wrongdoer, is one who has committed some 
 
 ^oke, Litt. 247; 4 Coke, 124; Shelford, Lun. 1. 
 
 2 Much Ado About Nothing, Act IV, Scene II. 
 
 3 2 Carr & K. 223; 4 Bl. Comm. 296; 2 Leach, Cr. Cas. 552. 
 
74 THE LAW IN SHAKESPEARE. 
 
 crime, 1 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 not 
 suspect my years? — O that he were here to write me 
 down — an ass: — but, masters, remember that I am 
 an ass; though it be not written down, yet forget 
 not that I am an ass : — No, thou villain, thou art full 
 of piety, as shall be proved upon thee by good wit- 
 ness. I am a wise fellow; and, which is more, an 
 officer ; and, which is more, a householder : and, which 
 is more, as pretty a piece of flesh as any 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 Josses ; 
 and one that hath two gowns, and everything hand- 
 some about him: — Bring him away. O, that I had 
 been writ down, — an ass." 2 
 
 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, 3 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.) 
 
 1 Bouvier, Law Diet. 
 
 2 Much Ado About Nothing, Act IV, Scene II. 
 
 3 Bouvier, Law Diet. 
 

 MUCH ADO ABOUT NOTHING. 75 
 
 Sec. 48. Preliminary examination for burglary. — 
 
 "Dogb. 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." 1 
 
 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. 2 At 
 common law the accused could not be examined, but only 
 the witnesses against him. 3 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. 4 
 
 1 Much Ado About Nothing, Act IV, Scene II. 
 2 4 Bl. Comm. 296; 2 Leach, Cr. Cas. 552. 
 8 Roscoe, Cr. Evid. 44; Phillipps, Evid. 106. 
 4 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. 1 Shakespeare was evidently familiar with this 
 barbarous practice, for he refers to the trial by duel, or 
 battle, in different plays. 2 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. 3 
 
 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. ' ' 4 
 
 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 II, Act I, Scene I; Act IV, Scene I. 
 8 1 Reeve's History Eng. Law, supra. 
 4 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, hy which the pleader set up 
 the offenses or the causes of action. 1 Each count usually 
 refers to a different offense or cause of action. 2 
 
 Sec. 51. False testimony. — 
 
 "D. Pedro. Officers, what offense have these men done? 
 
 Dogb. Marry, sir, they have committed false report; 
 moreover, they have spoken untruths; secondarily, 
 they are slanders; sixth and lastly, they have belied 
 a lady; thirdly, they have verified unjust things: 
 and, to conclude, they are lying knaves." 3 
 
 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. 4 
 
 Sec. 52. The scales of justice. — 
 
 "Dogb. 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." 5 
 
 This personification of justice, from the mythological 
 idea of a blind-fold Goddess, dispensing justice, through 
 
 1 Gould, PI. c. 4; Stephen, PI. 279. 
 
 2 Ante idem. 
 
 3 Much Ado About Nothing, Act V, Scene I. 
 ♦Roscoe, Cr. Evid. 362. 
 
 5 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 II.) 
 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: 
 
 li 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: 
 "0 balmy breath, that dost almost persuade Justice to break her 
 sword." (Act V, Scene II.) 
 
CHAPTER VII. 
 
 "MIDSUMMER NIGHT'S DREAM." 
 
 Sec. 53. Jurisdiction of Athenian Laws. 
 
 54. Parent and Child, under Greek Law. 
 
 55. Parent's right of Infanticide, by Athenian Law. 
 
 56. Pleading for Fee. 
 
 57. Parent's Consent to Child's Marriage. 
 
 58. Limitation of Municipal Law. 
 
 Sec. 53. Jurisdiction of Athenian laws. — 
 
 "Lys. A good persuasion ; therefore, hear me Hermia. 
 I have a widow aunt, a dowager 
 Of great revenue, and she hath no child; 
 From Athens is her house remote seven leagues, 
 And she respects me as her only son. 
 There, gentle Hermia, may I marry thee; 
 And to that place the sharp Athenian law cannot 
 pursue us." 1 
 
 This reference to the " widow aunt," it is believed, is 
 not so much to show a guardian, who could consent to 
 the marriage, as to state the fact that her home would 
 furnish a haven, beyond the jurisdiction of the law of 
 Athens. If the residence of the widow aunt, was, as 
 stated, a distance equivalent to seven English leagues, it 
 would be about twenty-one miles from Athens and this 
 distance would no doubt have carried Lysander and Her- 
 mia into another district, where different laws obtained. 
 For it must be remembered that the free states of Greece 
 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- 
 
 1 Midsummer Night's Dream, Act I, Scene I. 
 
 2 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. 1 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." 2 
 
 Egeus here claimed the law, as it was known to exist, 
 not only in ancient Greece, but in Egypt, Persia and 
 Rome, as well. 3 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. 4 The Twelve Tables, 5 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. 6 After the expulsion of Tarquin, 
 
 1 Hereen, on Political History of Ancient Greece (Oxford ed.), 
 1834. 
 
 2 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. 
 
 4 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, 2 and 
 they continued in effect until the time of the Emperor 
 Hadrian. 3 
 
 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." 4 
 
 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 established 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. 
 
 4 Kent's Comm. (12 ed.), 520. 
 
 a 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. 1 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. 2 
 
 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, 3 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, 
 
 Baylor'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 patria majestas. 
 Heinneccius, Syntagma Antiq. Rome, Jur. lib. 1, tit. 9, Opera iv; 
 7 Am. Law Rev. 61. 
 
 '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." 1 
 
 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. 2 
 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. 3 
 
 1 Midsummer Night's Dream, Act III, Scene II. 
 2 Cowel, Bouvier. 
 3 9 Wheat. 262. 
 
 According to Halliwell-Phillipps, the phrase had the specific 
 meaning of "three kisses." Rolfe's Midsummer Night's Dream, 
 p. 182, notes. 
 
 The grasping quality of some attorneys is referred to, in All's 
 Well That Ends Well (Act II, Scene II), as follows: "Clo. As 
 fit as ten groats is for the hand of an attorney." 
 
 Richard tells Anne, in King Richard III: "Glo. . . now 
 thy beauty is propos'd my fee, My proud heart sues and prompts 
 my tongue to speak." (Act I, Scene II.) 
 
 On promising to circulate the false rumor of his brother's 
 bastardy, Buckingham tells Gloster, in King Richard III: "Buck. 
 Doubt not, my lord; I'll play the orator, As if the golden fee, 
 for which I plead, Were for myself." (Act III, Scene V.) 
 
 Ulysses said, in Troilus and Cressida, that "supple knees feed 
 arrogance, and are the proud man's fees." (Act III, Scene III.) 
 
 In the dialogue between Mercutio and Romeo, in Romeo and 
 Juliet, in his reference to Queen Mab, Mercutio, after describing 
 her state, said: "And in this state she gallops, night by night, 
 Through lovers' brains and then they dream of love; . . 
 O'er lawyers' fingers, who straight dream on fees." (Act I, 
 Scene IV.) 
 
 Tamora, in Titus Andronicus, considers the rape of Lavinia, 
 as the fee due her sons, when she denies her interference to save 
 her, in these words: 
 "Tam. So should I rob my sweet sons of their fee: 
 
 No, let them satisfy their lust on thee." (Act II, Scene III.) 
 
84 THE LAW IN SHAKESPEARE. 
 
 Sec. 57. Parent's consent to child's marriage. 
 
 "Ege. Enough, enough, my lord; you have enough; 
 I beg the law, the law upon his head. — 
 They would have stolen away, they would, Deme- 
 trius, 
 Thereby to have defeated you and me: 
 You, of your wife; and me of my consent; 
 Of my consent that she should be your wife." 1 
 
 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.) 
 
 1 Midsummer Night's Dream, Act IV, Scene II. 
 
 2 St. John's History of Manners & Customs of Ancient Greece, 
 120-125; Voyage du Anarcharis en Grece, iii, c. 26; Taylor's Ele- 
 ments of Civil Law, 395, 403. 
 
MIDSUMMER NIGHT'S DREAM. 85 
 
 law, rather as property of the parent, than in the light 
 of a rational human being. 1 
 
 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. 2 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. 3 
 
 But in presenting the rule obtaining in ancient Greece, 
 the Poet was right in making the consent of the parent 
 essential to a valid marriage of the child, so Egeus had a 
 right to claim that his consent was essential to the mar- 
 riage of his daughter. 
 
 Sec. 58. Limitation of municipal law. — 
 
 "Lys. . . . Our intent was, to be gone from Athens, 
 where we might be, 
 Without the peril of the Athenian law." 4 
 
 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. 
 
 2 1 Bishop's Mar. & Div. (4th ed.), 293. 
 
 3 Ante idem. 
 
 4 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 
 
 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 Law. 
 
 78. "Statute-caps." 
 
 78a. Slander dependent upon hearer's attitude. 
 
 8ec. 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." 1 
 
 As an oath can only be administered by some one au- 
 thorized to administer oaths, 2 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 
 
 Move's Labour's Lost, Act I, Scene I. 
 a 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. 1 
 "Term," in the law of contracts, is the space of time given 
 for the discharge of an obligation. 2 Statutes, until re- 
 corded are not usually enforceable, 3 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. 4 
 
 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." 5 
 
 Decrees, as generally understood, are sentences or judg- 
 ments of a court of equity, as distinguished from a court 
 of law, 6 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, 7 such as the Berlin and 
 Milan decrees and this is the meaning in which the word 
 is used here. 
 
 1 From Latin, sub. under and scribo, 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. 
 
 7 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." 1 
 
 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. 2 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: 
 'Tor. 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.) 
 1 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. 1 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. 3 Attainder was either 
 by confession, in court; by verdict, or by process of out- 
 lawry, in case of his flight. 4 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. 5 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;" hut he concludes, "Yet must not we put the 
 strong law on him." (Act IV, Scene III.) 
 
 1 lKent's Comm. 467; 1 Bl. Comm. 88; 1 Comyns Dig. 444. 
 
 2 Love's Labour's Lost, Act I, Scene I. 
 
 3 1 Bishop, Criminal Law, 641; 1 Stephen, Comm. 408. 
 
 4 Coke, Litt. 391. 
 
 6 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 V 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: "Som. . . 
 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 
 attainture will be Hume's fall." (Act I, Scene II.) 
 
 The vicious Queen Margaret is made to say to the duke of 
 Gloster, on the arrest of his wife: "Q. Mar. Gloster, see here the 
 tainture of thy nest; And look, thyself be faultless, thou wert 
 best." (2' Henry VI, Act II, Scene I.) 
 
 The duke of Gloster said to his unfortunate wife, in 2' Henry 
 VI: "Glo. . . 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." 1 
 
 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." 2 
 
 The Scrivener, in presenting the indictment, after Hasting's 
 death, in King Richard III, is made to say: "Scriv. And yet 
 within these five hours, Hastings liv'd, Untainted, unexamined, 
 free, at liberty." (Act III, Scene VI.) 
 
 Dissembling, on seeing Lord Hasting's head, Richard II said, in 
 King Richard III': "Glo. So smooth he daub'd his vice, with 
 show of virtue, That, his apparent open guilt omitted — I mean his 
 conversation with Shore's wife — He lived from all attainder of 
 suspect." (Act III, Scene V.) 
 
 Speaking of the Cardinal's act in the trial of Buckingham, for 
 treason, a gentleman is made to say: "Gent. 'Tis likely, by all 
 conjectures; First, Kildare's attainder, then deputy of Ireland." 
 (Act II, Scene I.) 
 
 Alexander tells Cressida, in Troilus and Cressida, speaking of 
 Troilus: "Alex. . . there is no man hath a virtue that he 
 hath not a glimpse of; nor any man an attaint, but he carries 
 some stain of it." (Act I, Scene II.) 
 
 Addressing his friend, in the LXXXVIII' Sonnet, the Poet said: 
 "Upon thy part I can set down a story 
 Of faults conceal'd, wherein I am attainted." (6, 7.) 
 
 1 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." 1 
 
 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, 2 part of which 
 (terrae tenementales) , was given by the "lord of the 
 manor," to his followers or vassals, and the rest was re- 
 tained by him under the name of his demesnes, or terrae 
 
 In Henry IV, (Act II, Scene IV) Prince Hal thus refers to 
 Falstaff's having been taken with the manner: 
 
 "P. Hen. O villain, thou stolest a cup of sack eighteen years 
 ago and wert taken with the manner, and ever since thou hast 
 blushed extempore." 
 
 Manner, is no doubt from the French word manier, and 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 
 Falstaff in the instance referred to. 
 
 Commenting upon the right of arrest of those criminals who 
 were taken in the act, Lord Coke said: "being taken with the 
 manner, that is, with the thing stolen in his hand, which Bracton 
 and Britton call factum manifestum (Bracton lib. Ill, fol. 12; 
 Britton, fol. 22), and so felons, openly known and notorious, they 
 were not bailable." (2 Inst. 189.) 
 
 And see II Reeve's History Eng. Law, p. 418. 
 
 1 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 77 
 was called the court-baron. 1 No new "manors 77 were 
 created in England after the enactment of the statute 
 Quia Emptores, prohibiting subinfeudation. 2 
 
 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 T 
 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. 773 
 
 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, 77 like an 
 indictment ended, in charging the commission of the of- 
 fense "contrary to the form of the statute, 77 etc. 4 At com- 
 mon law, in setting forth an offense, some certain place 
 
 1 Bouvier's Law Dictionary. 
 
 2 This statute was passed in 1290. Tiedeman, R. P. (3 Ed.), 
 Sec. 23; 1 Washburn, R. P. 30. 
 
 3 Love's Labour's Lost, Act I, Scene I. 
 
 4 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. 1 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. 66. — Inheritance, Dowry. — 
 
 "Boyet. Now, madam, summon up your dearest spirits; 
 Consider who the king, your father, sends; 
 To whom he sends; and what's his embassey; 
 Yourself, held precious in the world's esteem, 
 To parley with the sole inheritor 
 Of all perfections that a man may owe, 
 Matchless Navarre; the plea of no less weight 
 Than Aquittain ; a dowry for a queen." 3 
 
 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. 4 
 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 
 
 1 Comyns Dig. Pleader, c. 20. 
 
 2 Coke, Litt. 125. 
 
 3 Love's Labour's Lost, Act II, Scene I. 
 
 4 Littleton, Sec. 9. 
 
96 THE LAW IN SHAKESPEARE. 
 
 her husband. 1 And the value of Aquittain is here en- 
 hanced as being fit for a queen. 
 
 ^oke, Litt. 31. 
 
 King John is made to say, to Phillip, of France: "If that the 
 Dauphin there, thy princely son, Can in this book of beauty read, 
 I love, Her dowry shall weigh equal with a queen." (Act II, 
 Scene I.) 
 
 As an apt illustration of the frequency with which legal terms 
 are correctly used by the Poet, when the necessity therefor occurs, 
 note the following references to dowry, in Taming Of The Shrew : 
 
 "Ore. I had as lief take her dowry, with this condition — to be 
 whipped at the high-cross every morning." (Act I, Scene I.) 
 
 "Hor. Here is a gentleman, whom by chance I met, upon agree- 
 ment from us to his liking, will undertake to woo curst Katharine; 
 yea, and to marry her, if her dowry please." (Act I, Scene II.) 
 
 "Pet. Then tell me — if I get your daughter's love, What dowry 
 shall I have, with her to wife?" 
 
 "Bap. After my death, the one-half of my lands; and, in posses- 
 sion, twenty thousand crowns." 
 
 "Pet. And, for that dowry, I'll assure her of her widow-hood." 
 (Act II, Scene I.) 
 
 "Pet. Your father hath consented that you shall be my wife; 
 your dowry 'greed on; and will you, nill you, I will marry you." 
 (Act II, Scene I.) 
 
 "Bap. And he, of both, that can assure my daughter greatest 
 dower, shall have Bianca's love." (Act II, Scene I.) 
 
 "Tra. My father is here looked for every day, To pass assur- 
 ance of a dower in marriage." (Act IV, Scene II.) 
 
 "Bap. And, therefore, if you say no more than this, That like 
 a father you will deal with him, And pass my daughter a sufficient 
 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. I will add unto their losses, twenty thousand crowns; 
 Another dowry to another daughter, for she is changed as she had 
 never been." (Act V, Scene II.) 
 
 In King John, the Earl of Pembroke said to Lord Salisbury: 
 "Stay 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: "Glo. 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. — 
 
 "Prin. In that behalf, bold of your worthiness, we single 
 
 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." 1 
 
 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 2 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; 3 
 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. 4 
 
 Sec. 68. Surety.— 
 
 "King. . . Madam, your father here doth intimate, 
 The payment of a hundred thousand crowns; 
 
 Move's Labour's Lost, Act II, Scene I. 
 2 Bouvier's Law Dictionary. 
 •Bouvier's Law Dictionary. 
 4 II Reeve's Hist. Eng. Law, 401, et sub. 
 
 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, Thaa 
 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." 1 
 
 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. 2 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. 
 
 1 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 Aquitain." 1 
 
 A title is defined as the means whereby the owner of 
 land hath the just possession of his property. 2 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. 3 The King of 
 France, having pledged the title that he had to Aquittain, 
 here offered on payment of the certain sum remaining 
 unpaid, to accept a full release and be restored to his 
 title. If this offer was not accepted, he would assert his 
 title, in any event. 
 
 bastard boys of York, Shall be the surety for their traitor 
 father." (Act V, Scene I.) 
 
 The following occurs between Aenas and Agamemnon, in Troi- 
 lus and Cressida: 
 
 "Aena. May one, that is a herald and a prince, Do a fair 
 message to his kingly ears? 
 
 Agam. With surety stronger than Achilles arm, 'Fore all the 
 Greekish heads, Which, with one voice, call Agamemnon head 
 and general." (Act I, Scene II.) 
 
 On the arrest of Coriolanus, Senators and Patricians, stand 
 surety for him as follows: "Sen. & Pat. We'll surety him." 
 (Act III, Scene I.) 
 
 Iago 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.) 
 
 Move'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." 1 
 
 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, 2 while an estate 
 in common is one held by two or more persons at the 
 same time, although by several and distinct titles. 3 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, 4 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. 5 
 
 The earl of Salisbury, thus explains to king Henry, his reasons 
 for supporting the title of York, to the crown, in 2' Henry VI: 
 "Sal. My lord, I have considered with myself, 
 The title of this most renowned duke; 
 And in my conscience do repute his grace, 
 The rightful heir to England's royal seat." 
 
 (Act V, Scene I.) 
 York claims title to the crown, in 3' Henry VI, as follows: 
 "York. Will you, we show our title to the crown? 
 If not, our swords shall plead it in the field." 
 
 (Act I, Scene I.) 
 And Henry replies: 
 "K. Hen. What title hast thou, traitor, to the crown? 
 Thy father was, as thou art, duke of York." idem. 
 
 1 Love's Labour's Lost, Act II, Scene I. 
 a 2 Bl. Comm. 179; Tiedeman, R. P. (3' Ed.) 26, 174. 
 8 2 Bl. Comm. 191; 1 Preston, Est., 139. 
 '6 Coke, 59; 1 Rolle, Abr. 396. 
 
 5 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." 1 
 
 "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." 2 
 
 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 denned 
 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." 3 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 
 
 Move's Labour's Lost, Act II, Scene I. 
 
 2 Love's Labour's Lost, Act V, Scene II. 
 
 8 3 Coke Inst. 164; 2 Bishop, Criminal Law, 860; Sherwood's 
 Cr. Law, 391. This would be an extra-judicial oath, or one taken 
 without authority of law. Though binding in foro conscientia, 
 such oaths when violated, would not render the person so violat- 
 ing, liable for perjury. 
 
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." 1 
 
 A receipt is generally denned 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.) 
 
 1 Love's Labour's Lost, Act II, Scene I. 
 
104 THE LAW IN SHAKESPEARE. 
 
 acceptance of something in lieu thereof. 1 While subject 
 to explanation by parol evidence, unlike other written 
 instruments, 2 reecipts 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. 3 A denial of one's 
 receipt is like the denial of any other obligation or ac- 
 knowledgment, over one's signature and hence the con- 
 clusion of the Princess, that the King wronged the repu- 
 tation of his name, in refusing to confess the receipt of a 
 sum that had "so faithfully been paid." 
 
 Sec. 73. Specialties — Acquittances. — 
 
 "Prin. We arrest your word: 
 
 Boyet, you can produce acquittances, 
 
 For such a sum, from special officers, 
 
 Of Charles, his father. .... 
 Boyet. So please your grace, the packet is not come, 
 
 Where that and other specialties are bound, 
 
 Tomorrow you shall have a sight of them." 4 
 
 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.' 5 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, 6 while an acquit- 
 tance is not under seal. A specialty is a writing contain- 
 ing some agreement, which is sealed and delivered. 7 In 
 the sense in which the word is used in this verse, it is 
 a writing sealed and delivered, which is given as evidence 
 
 1 Bouvier's Law Dictionary. 
 2 1 Pet. C. C. 182; 2 Johns. N. Y. 378. 
 3 15 Johns. N. Y. 479. 
 4 Love's Labour's Lost, Act II, Scene I. 
 "Bouvier's Law Dictionary. 
 
 e Pothier, Oblig. n. 781; Coke, Litt. 212a, 273a; 3 Salk, 298; 1 
 Rawle (Pa.) 391. 
 7 Bouvier's Law Dictionary. 
 
love's labour's LOST. 105 
 
 of the payment of a debt, in which the same is specially 
 mentioned. 1 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." 3 
 
 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 
 
 1 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. 1 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. 2 
 
 Sec. 75. Enfranchising one. — 
 
 "Arm. Sirrah Costard, I will enfranchise thee. 
 
 Cos. 0, marry me to one Frances : I smell some V 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." 3 
 
 As explained by the players in this verse the word "en- 
 franchise" in the law, literally means to set free. 4 En- 
 franchisement is giving freedom to a person, hence a 
 citizen of London is said to be enfranchised. And, a^ 
 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. 5 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. 
 
 1 Bouvier's Law Dictionary. 
 
 2 Rolfe's Love's Labour's Lost, p. 176, notes. 
 
 8 Love's Labour's Lost, Act III, Scene I. 
 
 4 Bouvier's Law Dictionary. 
 
 5 II Coke, 91. 
 
 In Antony and Cleopatra, Cleopatra thus addresses Antony: 
 l 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 
 
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." 1 
 
 Treason, in the law, implies a betrayal, or breach of 
 allegiance, amounting to treachery, 2 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, 3 and 
 this course of conduct is so at war with youth, that it 
 could also be considered treason, for this reason, as well. 
 
 
 "Cas. Pardon, Caesar; Caesar, pardon; 
 
 As low as to thy foot doth Cassius fall, 
 To beg enfranchisement for Publius Cimber." 
 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.) 
 
 Move's Labour's Lost, Act IV, Scene III. 
 
 2 4 Shars. Bl. Comm. 75. 
 
 3 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: 
 il K. Rich. Tell Bolingbroke (for yond', methinks, he is,) 
 That every stride he makes upon my land, 
 Is dangerous treason." (Act III, Scene III.) 
 
 The Earl of Worcester, is quoted as saying, in 1' Henry IV: 
 "Wor. . . Suspicion shall be all stuck full of eyes: For treason 
 is but trusted like the fox." (Act V, Scene II.) 
 
108 THE LAW IN SHAKESPEARE. 
 
 Speaking of the treason and attempt to kill him, Henry V, 
 said: "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: "Som. . . 
 Was not thy father, Richard, earl of Cambridge, for treason 
 executed in our late king's days?" (Act II, Scene IV.) 
 
 Talbot, before Rouen, in 1' Henry VI, is made to say: "Tal. 
 France thou shalt rue this treason with thy tears, if Talbot but 
 survive thy treachery." (Act III, Scene II.) 
 
 In 2' Henry VI, the king resents the idea that the duke of 
 Gloster was guilty of treason, in the following language: "K. 
 Hen. . . Our kinsman, Gloster is as innocent From meaning 
 treason to our royal person, As is the sucking lamb, or harmless 
 dove." (Act III, Scene I.) 
 
 Suffolk said to Gloster, in 2' Henry VI: "Suff. Nay, Gloster, 
 know, that thou art come too soon, Unless thou wert more loyal 
 than thou art: I do arrest thee of high treason." (Act III, 
 Scene I.) 
 
 In attempting to make Gloster the instigator of his wife's 
 treason, Suffolk said, in 2' Henry VI: "Stiff. . . 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: fi K. Hen. He is attach'd; call him to 
 present trial; if he may find mercy in the law, 'tis his; if none, 
 let him not seek't of us; By day and night, he's traitor to the 
 height." (Act I, Scene II.) 
 
 In his attempt to prevent a ratification of the peace treaty 
 closed by Coriolanus, with Rome, Aufidius tells the citizens: 
 "Auf. Read it not, noble lords; But tell the traitor, in the high- 
 est degree, he hath abus'd your powers." (Act V, Scene V.) 
 
love's labour's lost. 109 
 
 Sec. 77. Quillets of the law.— 
 
 "Long. 0, some authority how to proceed, 
 
 Some tricks, some quillets, how to cheat the devil." 1 
 
 "Quillet," is no doubt derived from quidlibet, meaning 
 what you please. A subtle, nice point of law, is referred 
 to as a "quillet" and the term is used as a synonym for 
 quibble. 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 3 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.) 
 
 1 Love's Labour's Lost, Act IV, Scene III. 
 
 2 Webster's Dictionary. 
 
 3 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: 
 "Sufi. . . 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." 1 
 
 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. 2 
 
 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.) 
 
 1 Love's Labour's Lost, Act V, Scene II. 
 
 2 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.— 
 
 "Rosaline. A jest's prosperity lies in the ear 
 Of him that hears it, never in the tongue 
 Of him that makes it. ' n 
 
 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." 2 
 
 1 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 
 Of 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 third 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 OP VENICE." 
 
 i. 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." 1 
 
 A "warranty," in real property, was a covenant, where- 
 by the grantor of an estate of freehold was bound to war- 
 
 1 Merchant of Venice, Act I, Scene I. 
 
 (in) 
 
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. 1 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. 2 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." 3 
 
 It was remarked by Lord Bacon, in one of his Essays, 4 
 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. 5 
 The term is mostly applied to pecuniary punishment, 6 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. 
 
 2 Coke, Litt. 101b. 
 
 3 Merchant of Venice, Act I, Scene III. 
 
 4 Civil & Moral Essay, No. 41. 
 "Bouvier's Law Dictionary. 
 
 8 8 Comyns Dig. 846. 
 
MERCHANT OF VENICE. H3 
 
 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." 1 
 
 The distinction between a singular bond and a reg- 
 ular bond with principal and surety, in common form, 
 is recognized by the Poet in Shylock's request for a 
 "single bond," but in demanding the sealing of such 
 bond, the English legal requisite to a valid spe- 
 cialty contract is likewise recognized. The novelty 
 of making written instruments with seals of wax 
 and other ceremonies, was introduced into England by 
 the Normans. 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. 3 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. 4 The 
 "condition" of a bond is that part which specifies the agree- 
 
 1 Merchant of Venice, Act I, Scene III. 
 
 2 1 Reeve's History English Law, p. 336. 
 
 8 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. 
 
 4 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. 1 
 
 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. 
 
 1 Bouvier's Law Dictionary. 
 
 A "single bond," — simplex obligatio — is one in which the 
 obligor binds himself, his heirs, etc., to pay a certain sum of 
 money to another at a day named. (Bouvier's Law Dictionary.) 
 It is properly to be distinguished from a conditional bond, in 
 that the former does not contain the same form in law, as the 
 latter, which is conditioned that if the obligor does some act, 
 the bond is to be void. It is passing strange that the Poet, if 
 unlearned in the deep science and technicalities of the law, should 
 have noted, in this verse this legal distinction between these 
 different kinds of bonds and made of this bond, the kind the 
 transaction made essential, instead of the other kind, that one 
 less informed in the law would perhaps have selected, or, more 
 likely, would have specialized no particular kind of bond at all. 
 The substance and condition of this bond and the incidents of 
 the forfeiture are related in the Gesta Romanorum, but there is 
 little doubt, as stated by Hudson, but what the details and plot 
 of the play were taken from the Italian novel by Giovanni 
 Fiorentino, written in 1378, as the main points of this story are 
 reproduced in the play, in a slightly transformed form. Bassanio 
 corresponds to the hero in this novel, who had executed the bond 
 to the Jew, and his intended bride, disguised as a doctor of law 
 so construes the bond as to deny the Jew his pound of flesh, in 
 substantially the same way in which the bond was construed by 
 Portia. (See Introduction to Hudson's Merchant of Venice, pp. 
 50, 51.) 
 
 Glendower is quoted as saying, in 1' Henry IV: 
 "Glen. Come, come, lord Mortimer; you are as slow, 
 As hot lord Percy is on fire to go. 
 By this our book's drawn: we'll but seal, and then 
 To horse immediately." (Act III, Scene I.) 
 
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.) 
 
 1 Merchant of Venice, Act III, Scene II. 
 
116 THE LAW IN SHAKESPEARE. 
 
 The rack was an engine with which to torture a supn 
 posed criminal to extort a confession of his crime from 
 him, together with the names of his supposed accom- 
 plices. 1 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. 
 
 1 Bouvier's Law Dictionary. 
 
 2 Taylor's Elem. Civil Law. 
 
 The wrists and ankles of the witness were fastened 'by cords 
 attached to rollers at the end of the frame work, on which he was 
 stretched. These rollers were then drawn in opposite directions, 
 until the body of the victim was raised to a level with the 
 
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, Falstaff 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' Henry VI, said: "York. Say, he be taken, rack'd 
 and tortured: I know no pain they can inflict upon him, will 
 make him say — I mov'd him to those arms." (Act III, Scene I.) 
 
 Cressida and Pandarus, in the colloquy over Troilus, in Troilua 
 and Cressida say: "Pan. I can't choose but laugh, to think 
 how she tickled his chin; — Indeed, she has a marvelous white 
 hand, I must needs confess. 
 
 Cres. Without the rack?" (Act I, Scene II.) 
 
 Paulina refers to torture by the rack, in Winter's Tale, when 
 she asks Leontes: "Paul. What studied torments, tyrant, hast 
 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 Iago, 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?" 1 
 
 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, 
 
 1 Merchant of Venice, Act III, Scene II. 
 
THE MERCHANT OF VENICE. 117b 
 
 a tainted plea or an evil cause prevails, where correct 
 judicial standards are applied. 2 
 
 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 
 1 ' 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 ' i 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, just 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. 
 
118 THE LAW IN SHAKESPEARE. 
 
 Sec. 83. Usurer.— 
 
 "Shy. . . . Let him look, to his bond: he was wont 
 to call me usurer; — let him look to his bond: he was 
 wont to lend money for a Christian courtesy; — let 
 him look to his bond." 1 
 
 Shylock's expressed animosity toward Antonio, because 
 he was "wont to call me usurer," is in strict accordance 
 with the history of the subject of usury, in England. The 
 first usurers, in England, were the Jews. 2 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. 3 On account of 
 their rapacity, the Jewish money lenders were banished 
 from England, near the close of the thirteenth century. 4 
 The church then attempted the handling of usurers, pun- 
 ishing them, "for the good of their souls," by censures 
 and excommunications, 5 and from the fifteenth until the 
 middle of the nineteenth century, in England, the sub- 
 ject of usury was a fruitful source of legislation. 6 The 
 injunction of Moses, against the exaction of usury, 7 which 
 
 In the XXXIIF 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 CXXVT 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.) 
 
 1 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. 
 
 1 Lev. XXV., 35-37; Deut. XXIII., 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. 1 
 
 1 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 panem 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 1' Henry VI: 
 "Glo. . . Thou art a most pernicious usurer." (Act III, 
 Scene I.) 
 
 Apemantus, tne philosopher, in Timon "f Athens, said: "Apem. 
 Poor rogues and usurer's men: bawds between gold and want." 
 (Act II, Scene II.) 
 
 And tfce fool jaid: "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." 1 
 
 Forfeitures have always been regarded with odium by 
 the courts. 2 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: "Alcib. 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.) 
 
 1 Merchant of Venice, Act III, Scene II. 
 
 2 4 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. 1 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, 2 
 and courts of law finally came to assume a like jurisdic- 
 tion. 3 
 
 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."* 
 
 1 Bouvier's Law Dictionary. 
 
 2 Coke, Litt. 209a; 2 Bl. Comm. 340. 
 
 3 Ante idem. 
 
 The relief furnished by Antonio, against the forfeitures sought 
 by the Jew, against other debtors, is mentioned as the 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." 
 Salan. I am sure, the duke will never grant this forfeiture 
 to hold." (Merchant of Venice, Act III, Scene III.) 
 
 Varro's Servant, on referring to the past due bonds of his 
 master, he presented to Timon, in Timon of Athens, said: "Var. 
 Serv. 'Twas due on forfeiture, my lord, six weeks." (Act II, 
 Scene II.) 
 * Merchant of Venice, Act III, Scene III. 
 
122 THE LAW IN SHAKESPEARE. 
 
 This is a beautiful and touching tribute paid by the 
 Poet to the majesty of the law, which was recognized as 
 beyond and above the power of royalty. That the denial 
 of the affirmative rights of any citizen would "much im- 
 peach the justice of the state" by denying, from analogy, 
 the property rights of the strangers in the city, by the like 
 denial of "the course of law," is an observation in keep- 
 ing with the whole philosophy of the law and the dan- 
 ger of breaking down the precedents or the regular course 
 of legal proceedings is plainly set forth in this verse. 
 
 Macbeth exclaims: "This even-handed justice commends the 
 ingredients of our poison'd chalice to our own lips." (Macbeth, 
 Act I, Scene VII.) 
 
 The lofty idea here expressed is that involved in the appeal to 
 the ideal feeling, which defends the law, because it is the law and 
 not on account of any personal interest. This is the ideal height 
 of the struggle for law, when the motive of personal interest is 
 subordinated for that of the moral preservation of the state, by 
 co-operation for the realization of the idea of law. Von Ihering's 
 Struggle for Law, p. 73. 
 
 The Chief Justice explains to Henry V, why the laws must be 
 impartially enforced, in 2' Henry IV, as follows: 
 "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: "Ch. 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, relent, and sigh and yield 
 To Christian intercessors. Follow not;" 
 I'll have no speaking; I will have my bond." 1 
 
 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. 2 
 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, 3 providing that a tender of principal and inter- 
 est with accrued costs, would operate as a full satisfaction 
 of a bond. 4 
 
 Buckingham tells Gloster, in 2' Henry VI: "Buck. Thy cruelty 
 in execution upon offenders, hath exceeded law, and left thee 
 to the mercy of the law." (Act I, Scene III.) 
 
 Speaking of the death of the good Gloster, Cardinal Beaufort 
 said, in 2' Henry VI: "Car. . . . But yet we want a colour for 
 his death, 'Tis meet he be condemn'd by course of law." (Act III, 
 
 Scene I.) 
 
 1 Merchant of Venice, Act III, Scene III. 
 'Bouvier's Law Dictionary. 
 •4 & 5 Anne, c. 16. 
 4 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. Repair thy wit, good youth, or it will fall 
 To cureless ruin. — I stand here for law." 1 
 
 In keeping with the whole course of Shylock's conduct, 
 before and during the trial of the issue of the legality of 
 
 observes that the Poet might very properly have invoked the 
 chancery process of injunction to relieve against the enforce- 
 ment of this penalty of the bond, as this procedure was then 
 recognized by the English Court of Chancery, but of course if 
 this were true — which the history of the Chancery Court estab- 
 lishes — an English Court would have had no jurisdiction of an 
 action in a Venetian State, so this 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.) 
 
 1 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. 1 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." 2 
 
 In these lines Shylock expressed the preference that his 
 debt held, under the English law, because of the seal at- 
 tached, over debts not so evidenced. A bond or other 
 
 1 This is really justice, nothing more nor less. Justinian, Inst, 
 b. 1, tit. 1; Coke, 2' Inst. 56; Touillier, Droit, Civ. Fr. tit. prel. 
 n. 5. 
 
 Falstaff makes the following reference to the law, in a colloquy 
 with Prince Henry: "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?" (1' Henry IV, Act I, Scene II.) 
 
 In refusing the plea of Alcibiades for his cli'ent, 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. 1 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. 2 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. 3 
 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. 4 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, 5 as well as in the 
 United States. 6 
 
 1 Lawson, on Contracts (2nd Ed.). 
 
 2 Ante Idem. Bishop, Contracts; Beach, Mod. Law Contracts. 
 3 1 Reeve's History Eng. Law, p. 337. 
 
 4 Mad. Form. Diss. 26; I Reeve's History Eng. Law, 337. 
 6 Lawson, Contracts, supra. 
 6 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: "Hub. Here 
 is your hand and seal for what I did. 
 K. John. 0, when the last account 'twixt heaven and earth 
 Is to be made, then shall this hand and seal 
 Witness against us to damnation." (Act IV, Scene II.) 
 
 In King Richard II, the Duke of York said to his son: 
 "York. What seal is that, that hangs without thy bosom? 
 Yea, look'st thou pale? let me see the writing." 
 
 (Act V, Scene II.) 
 
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." 1 
 
 This appeal for mercy, whereby the Duke appeals to 
 Shylock to forego the penalty of his bond and accept 
 the money, or forego a "moiety of the principal" is in 
 keeping with the whole scope of the Poet's treatment of 
 this trial. Instead of regarding the contract as void, be- 
 cause of its illegality, to obtain the better effect and reach 
 the climax of the judgment scene, the Poet treats the 
 bond as legal and the penalty as collectible. This better 
 shows the true character of the Jew, whose rights are 
 trampled under foot for the dramatic effect of the trial 
 scene, after being judicially recognized by the Court, by 
 the subterfuge on Portia's part. 
 
 And Cade says, in 2' Henry VI: "Cade. . . Is not this a 
 lamentable thing, that of the skin of an innocent lamb, should 
 be made parchment? that parchment, being scribbled o'er, should 
 undo a man? Some say, the bee stings: but I say, 'tis the bee'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.) 
 
 1 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. 1 The "principal" of this obligation, was, of 
 course, the sum originally loaned, less the interest or dam- 
 ages, due because of the breach. 2 These terms are purely 
 legal in their scope and illustrate the familiarity of the 
 Poet with the lexicon of the law. 
 
 Littleton, 125. 
 
 2 Bouvier's Law Dictionary. 
 
 In All's Well That Ends Well (Act III, Scene II), the Counted 
 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 moiety 
 of my rest, might come to me again." (Act II, Scene III.) 
 
 And Hermione, the good queen, said: "A fellow of the royal 
 bed, which owe, a moiety of the throne, a great king's daughter." 
 (Winter's Tale, Act III, Scene II.) 
 
 And, in the same play, Autolycus said to the Shepard: "Well, 
 give me the moiety: — are you a party in this business." (Act 
 IV, Scene III.) 
 
 Speaking of the unequal division of his part of the country 
 to be conquered, Hotspur is made to say, to Glendower and 
 Mortimer, in 1' Henry IV: "Hot. Methinks, my moiety, north 
 from Burton here, in quantity equals not one of yours." (Act 
 III, Scene I.) 
 
 Henry V, in wooing Katharine of France, said: fi 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." 1 
 
 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. 2 A notable illustration of such an instrument, in 
 English history, was Magna Charta, the great repository 
 of English liberties. 3 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. 4 
 
 before the king became enamored with Anne Boleyn, he said 
 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, Iachimo said to Posthumus, in making the 
 wager: il 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.) 
 
 1 Merchant of Venice, Act IV, Scene I. 
 2 1 Bl. Comm. 108; 1 Story, Con. Sec. 161. 
 'Two of the original drafts of Magna Charta are preserved in 
 the British Museum. 
 4 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? 
 
 For. I am informed thoroughly of the cause." 1 
 
 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, 2 
 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 
 III.) 
 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.) 
 
 1 Merchant of Venice, Act IV, Scene I. 
 
 2 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.— 
 
 'Tor. Of a strange nature is the suit you follow; 
 Yet in such rule, that the Venetian law 
 Cannot impugn you, as you do proceed." 1 
 
 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. 2 Nor could it be insisted that this proceed- 
 ing would have been legal, according to the Twelve Tables 
 of the Romans, for the procedure is at variance with the 
 authorized process for the punishment of the debtor, ac- 
 cording to the Twelve Tables, as history reproduces them. 3 
 
 1 Merchant of Venice, Act IV, Scene I. 
 
 2 Lawson, Contracts (2nd Ed.) 343, and citations. 
 
 8 By the 3' Table, the debtor had until thirty days after judg- 
 ment to pay his debt and if he did not then pay or give security, 
 or sell himself, by entering into the nexum, his creditor could 
 seize him, load him with chains and treat him as a slave. Then 
 after sixty days more, if he failed to pay, he was brought into 
 the market place and either put to death or sold as a slave into 
 Etruria. It was only where there were several creditors that he 
 might, at their election, be divided and his body partitioned be- 
 tween them. Gibbon, vol. VII, p. 92; Gravina, De Jura Nat. 
 
132 THE LAW IN SHAKESPEARE. 
 
 Portia claims to be able to show a special statute or 
 decree holding the object of this bond to be a crime and 
 if this were true the same statute would, by necessary 
 implication, make void the bond, given to evidence such 
 criminal act as the contract contemplated. 1 
 
 Sec. 93. Portia's plea for mercy. — 
 
 "Por. 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." 2 
 
 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. 
 
 1 Lawson, Contracts, supra. 
 
 2 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. 1 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. 2 
 
 Sec. 94. Antonio's confession of the bond. — 
 
 "For. Do you confess the bond? 
 Ant. I do." 3 
 
 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. 4 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. 5 
 
 1 Jacob, Law Dictionary. 
 
 2 Bouvier'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. 
 
 4 2 Stark. 41. 
 
 B l 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: 
 I stand for judgment: answer; shall I have it?" 1 
 
 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. 3 
 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. 4 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. 5 
 
 1 Merchant of Venice, Act IV, Scene I. 
 2 Tidd Prac. 930. 
 8 Stephen, PI. 126. 
 4 Freeman on Judgments. 
 5 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. — 
 
 "Por. ... 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." 1 
 
 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, 2 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 on- 
 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. 
 
 1 Merchant of Venice, Act IV, Scene I. 
 
 2 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." 1 
 
 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." 2 
 
 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." 3 
 
 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. 4 The money is generally required 
 
 1 Merchant of Venice, Act IV, Scene I. 
 
 s Von Ihering's Struggle for Law (5th Ed.), 81. 
 
 3 Merchant of Venice, Act IV, Scene I. 
 
 4 Coke, Litt. 206; 2 Maule & S. 86. 
 
MERCHANT OF VENICE. 137 
 
 to be present and actually offered, but of course the refusal 
 of Shy lock to receive the money amounted in law to a 
 legal waiver of the actual production of the money. 1 
 
 The Court's decision as to the effect of this tender, how- 
 ever, in the course of the decision, as deriving 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. 2 
 
 Sec. 99. Effect of legal precedent. — 
 
 "Bass Wrest once the law to your authority: 
 
 To do a great right, do a little wrong; 
 And curb this cruel devil of his will. 
 
 Por. It must not be; there is no power in Venice 
 Can alter a decree established: 
 'Twill be recorded for a precedent; 
 And many an error, by the same example, 
 Will rush into the state: it cannot be." 3 
 
 *2 Maule & S. 86; 2 Parsons, Contr. 154. 
 2 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.) 
 
 8 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. 1 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." 2 
 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. 
 
 1 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. 
 
 2 1 Kent's Com. (12 Ed.), 476. 
 
MERCHANT OF VENICE. 139 
 
 Sec. 100. Portia's judgment on the bond. — 
 
 "Por. Why, this bond is forfeit; 
 
 And lawfully by this the Jew may claim 
 
 A pound of flesh, to be by him cut off 
 
 Nearest the merchant's heart: .... 
 
 For the intent and purpose of the law 
 
 Hath full relation to the penalty, 
 
 Which here appeareth due upon the bond 
 
 Therefore, lay bare your bosom 
 
 Are there balance here, to 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? 
 
 'Twere good you do so much for charity. .... 
 
 A pound of that same merchant's flesh is thine ; 
 
 The court awards it and the law doth give it 
 
 And you must cut this flesh from off his breast; 
 
 The law allows it and the court awards it 
 
 Tarry a little; there is something else. — 
 
 This bond doth give thee here no jot of blood; 
 
 The words expressly are, a pound of flesh : 
 
 Take then thy bond ; take thou thy pound of flesh ; 
 
 But, in the cutting it, if thou dost shed 
 
 One drop of Christian blood, thy lands and goods 
 
 Are, by the laws of Venice, confiscate 
 
 Unto the state of Venice. 
 Shy. Is that the law? 
 Por. Thyself shalt see the act: 
 
 For, as thou urgest justice, be assur'd, 
 
 Thou shalt have justice, more than thou desir'st. . . . 
 Shy. I take this offer then; — pay the bond thrice and 
 
 let the Christian go. 
 Bass. Here is the money. 
 Por. Soft; 
 
 The Jew shall have all justice; — soft: no haste; — 
 
 He shall have nothing but the penalty 
 
 Therefore, prepare thee to cut off the flesh. 
 
 Shed thou no blood; nor cut thou less, nor more, 
 
 But just a pound of flesh: if thou tak'st more, 
 
 Or less, than a just pound — be it but so much 
 
 As makes it light or heavy, in the substance, 
 
 Or the division of the twentieth part 
 
 Of one poor scruple ; nay, if the scale do turn 
 
 But in the estimation of a hair, — 
 
140 THE LAW IN 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 T not have barely my principal? 
 Por. Thou shalt have nothing but the forfeiture, 
 
 To be so taken at thy peril, Jew. 
 Shy. Why then, the devil give him good of it, 
 
 I'll stay no longer question. 
 Por. Tarry, Jew, 
 
 The law hath yet another hold on you. 
 
 It is enacted in the laws of Venice, 
 
 If it be proved against an alien, 
 
 That by direct or indirect attempts, 
 
 He seek the life of any citizen, 
 
 The party, 'gainst the which ne 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." 1 
 
 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 
 
 1 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." 1 
 
 x 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 flesh from the 
 living body, the right to the shedding of the blood, which neces- 
 sarily accompanied it. Just as well might the judge deny to the 
 person whose right to an easement he acknowledged, the right to 
 leave footmarks on the land, because this was not expressly 
 stipulated for in the grant." Von Ihering's Struggle for Law, 
 (5th Ed.) pp. 82, 83. 
 
 Notwithstanding the total absence of justice, when judged by 
 strict legal rules and formulas, in this judgment, such writers as 
 Doctor Hudson, in commenting on this trial scene, speaking of 
 the judgment, said: "In her judge-like gravity and dignity of 
 deportment; in the extent and accuracy of her legal knowledge; 
 in the depth and appropriateness of her moral reflections; in the 
 luminous order, the logical coherence, and the beautiful trans- 
 parency of her thoughts, she almost rivals our Chief Justice 
 Marshall." 
 
 In the gravity and deportment and the beautiful and dramatic 
 presentation of the climax, this may be true, but surely not in 
 the "extent and accuracy of her legal knowledge." Chief Jus- 
 tice Marshall's judgments were according to established legal 
 precedents and rules of law; by his opinions property rights were 
 sustained and not stricken down by pleasantries or subterfuges. 
 Of what avail is it, to a litigant, whose rights have been denied 
 him, by improper legal standards, that the jurist who pronounced 
 the judgment was becomingly garbed, or pronounced the opinion, 
 striking down his rights, with eloquence and sophistry? The 
 only thing a litigant cares about is securing a righteous judgment 
 in his cause. If he loses his cause, it is immaterial that the 
 executioner of his rights was of noble mien, in the denial of the 
 law, as applied to his cause. The becoming picture of Portia, 
 presented by the Poet, viewed by the lawyer, fails to attract, as 
 
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." 1 
 
 A pardon is an act of grace, from the power intrusted 
 with the execution of the laws, which exempts the one 
 upon whom it is bestowed from the punishment inflicted 
 for the crime committed. 2 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, 3 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. 4 
 
 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 wrecked upon the shoals of 
 judicial shipwreck, the Jew is regarded with commiseration, 
 rather than the contempt that the laity heap upon him. 
 
 1 Merchant of Venice, Act IV, Scene I. 
 "4 Bl. Com. 400; 1 Park, Cr. Cas. 47. 
 •10 Johns. (N. Y.) 232. 
 *Bouvier's Law Dictionary. 
 
144 THE LAW IN SHAKESPEARE. 
 
 Sec. 102. Conveyance in use.— 
 
 "Ant. So please my lord the duke, and all the court, 
 To quit the fine for one-half of his goods; 
 I am content, so he will let me have 
 The other half in use, — to render it, 
 Upon his death, unto the gentleman 
 That lately stole his daughter: 
 Two things provided more, — That, for this favor, 
 He presently become a Christian ; 
 The other that he do record a gift, 
 Here in the court of all he dies possess'd, 
 Unto his son Lorenzo, and his daughter." 1 
 
 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. 2 Before the Statute of Uses, in the reign of Henry 
 VIII, uses were customarily used for the purpose of mak- 
 ing devises of land. 3 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. 4 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. 5 
 
 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, 6 and the deed of gift, as a further exac- 
 
 1 Merchant of Venice, Act IV, Scene I. 
 
 3 Tiedeman, R. P. (3d Ed.) Ch. Uses and Trusts. 
 
 •IV Reeve's History Eng. Law, pp. 363, 366. 
 
 4 27 Henry VIII, c. 10. 
 
 6 IV Reeve's History Eng. Law, p. 366. 
 
 • Ante idem. 
 
MERCHANT OF VENICE. 145 
 
 tion, by means of the gift of land llberum maritagium, 1 
 would furnish a further legal safeguard for the vesting 
 of the estate in the daughter and son in law of the Jew. 
 
 Sec. 103. Deed of gift.— 
 
 "Duke. He shall do this; or else I do recant 
 The pardon that I late pronounced here. 
 
 Por. Art thou contented, Jew; what dos't thou say? 
 
 Shy. I am content. 
 
 Por. Clerk, draw a deed of gift. 
 
 Shy. I pray you, give me leave to go from hence; 
 I am not well; send the deed after me, 
 And I will sign it." 2 
 
 The exaction of the deed of gift, as the price of 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. 3 
 A deed of gift, unlike a deed of "grant, bargain and sale," 
 is based only on a good consideration, such as love and 
 affection, as distinguished from a valuable consideration, 
 such as money or property. 4 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, 5 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. 6 Under the reign of Henry Til, 
 there were various deeds of gift in vogue, all of which are 
 
 1 IV Reeves' History Eng. Law, p. 90. 
 
 2 Merchant of Venice, Act IV, Scene I. 
 
 3 Tiedeman, R. P. (3d Ed.) Sec. 854; 2 Washburn, R. P. 553. 
 * Ante idem. 
 
 3 29 Chas. II, Ch. 3. 
 
 "1 Reeves' History Eng. Law, p. 336. 
 
146 THE LAW IN SHAKESPEARE. 
 
 described by Bracton, 1 the most common of these being 
 called deeds of gift libera et pura donatio and those sub 
 conditione. 
 
 The Poet shows a familiarity with the various kinds of 
 deeds of gift, for as Antonio had exacted that the deed 
 should be "unto his son Lorenzo and his daughter," it 
 would come within the class of deeds made on or after the 
 espousal, by some friend or relative of the bride, whereby 
 the land was given to them jointly, with such condition 
 that although the wife should have no heirs, the husband 
 would possess it, per legem Angliae. 2 
 
 bracton, 10b; II Reeve's History Eng. Law, p. 83. 
 2 Bracton, 22b; II Reeve's History Eng. Law, p. 91. 
 
 In delivering this deed of gift, to Lorenzo, Nerissa said: "There 
 do I give to you and Jessica, From the rich Jew, a special deed 
 of gift, After his death of all, he dies possess'd of." (Merchant 
 of Venice, Act IV, Scene I.) 
 

 CHAPTER X. 
 
 
 "AS YOU LIKE IT." 
 
 Sec. 104. 
 
 Primogeniture. 
 
 105. 
 
 Bequest. 
 
 106. 
 
 Heir. 
 
 107. 
 
 Testament. 
 
 108 
 
 "Be It Known By These Presents," 
 
 109. 
 
 Bankrupt. 
 
 110. 
 
 Forfeiture of land. 
 
 111. 
 
 Writ Extendi facias. 
 
 112. 
 
 Vacations of Court. 
 
 113. 
 
 Jointure. 
 
 114 
 
 Acts by Attorneys. 
 
 115. 
 
 Examining Justice. 
 
 Sec. 104. Primogeniture.— 
 
 "Orl. The courtesy of nations allows you my better, in 
 that you are the first-born; but the same 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." 1 
 
 The law of primogeniture or the right of the first-born 
 under the English law is here referred to, as inconsistent 
 with the natural rights of the younger child. Under the 
 law as it existed in England, the oldest son acquired title 
 to the parent's lands, in preference to the younger chil- 
 dren. 2 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. 
 
 8 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." 1 
 
 A bequest, is a gift of personal property, by will, in con- 
 tradistinction to a devise of real estate. 2 A sum of money 
 could not be devised, but such sum would be "bequeathed" 
 instead. 
 
 1 As You Like It, Act I, Scene I. 
 2 Wigram, Wills, 11. 
 
 In King John, the Mother of the King, said to Phillip: 
 "Eli. I like thee well; Wilt thou forsake thy fortune, 
 Bequeath thy land to him, and follow me? 
 I am a soldier and now bound to France." (Act I, Scene I.) 
 On regaining his armour, Pericles, Prince of Tyre, identifies it 
 in the hands of the fishermen as the armour that "my dead 
 father did bequeath to me," as a "part of mine heritage." 
 (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. 
 
 "Pel. 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." 1 
 
 The use of the word "heir" here is in the sense of an 
 "heir apparent," or as one who had the indefeasible right 
 to the inheritance, provided she outlive the ancestor, her 
 father. In postponing the realization of her promise to 
 convey the property realized from her own father, to 
 Rosalind, the Poet did not overlook the contingency upon 
 which the heirship depended, in law, i. e~, the death of the 
 speaker's father, for it is a legal axiom that no one can 
 be the heir of a living person, 2 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." 
 
 1 As You Like It, Act I, Scene II. 
 
 2 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 I.) 
 
 And, in the same play, Florizel, son of Polixenes, said to his 
 father: "Flo. . . . From my succession, wipe me, father, I 
 am heir to my affection." (Act IV, Scene III.) 
 
 In King Richard II, the Queen said of Bolingbroke: 
 "Queen. So, Green, thou art the midwife to my wo, 
 And Bolingbroke my sorrow's dismal heir." 
 
 (Act II, Scene II.) 
 In King Richard II, the Duke of York thus addressed Bollingbroke: 
 "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. — 
 
 "Orl. My father charged you in his will to give me good 
 education: you have trained me like a peasant, ob- 
 scuring and hiding from me all gentleman-like qual- 
 ities : the spirit of my father grows strong in me, and 
 I will no longer endure it: therefore allow me such 
 exercises as may become a gentleman, or give me 
 the poor allottery my father left me by testament." 1 
 
 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.) 
 
 1 As You Like It, Act I, Scene I. 
 
AS YOU LIKE IT. 151 
 
 The Roman 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. 1 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. 
 
 1 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 VT, said to Talbot: "Puc. . . . 
 Help Salisbury to make his testament: This day is ours, as many 
 more shall be." (Act I, Scene V.) 
 
 The Painter tells the Poet, in Timon of Athens: "Pain. . . 
 performance is a kind of will and testament, which argues a great 
 sickness in his judgment that makes it." (Act V, Scene I.) 
 
 On visiting Antioch, Pericles, Prince of Tyre, thus refers to his 
 intention of making his will: 
 
152 THE LAW IN SHAKESPEARE. 
 
 Sec. 108. Be it known by these presents. — 
 
 "Le Beau. Three proper young men, of excellent growth 
 
 and presence; — 
 "Ros. With bills on their necks, — Be it known unto all 
 
 men by these presents." 1 
 
 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." 2 
 
 A "bankrupt" is a broken up, or ruined trader. 3 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.) 
 1 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.) 
 
 2 As You Like It, Act II, Scene I. 
 8 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: 
 "K. Rich. . . . An if my word be sterling yet in England, 
 Let it command a mirror hither straight, 
 That it may show me what a face I have, 
 Since it is bankrupt of his majesty." (Act IV, Scene I.) 
 In Romeo and Juliet (Act III, Scene II), Juliet is made to 
 say: "O, 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. — 
 
 "DukeFr 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." 1 
 
 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 2 — 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." 3 
 
 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. 4 Writs fieri facias, issued 
 against the personal estate of the debtor, while extendi 
 facias, issued against his real estate and, in this connec- 
 
 ts You Like It, Act III, Scene I. 
 2 Tiedeman, R. P. (3d Ed.), Sec. 1. 
 »As 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. 1 
 
 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." 2 
 
 In practice, the space of time for which a court holds 
 its session, is called a "term" 3 and the period of time 
 between the end of one term of court and the beginning 
 of another term, is called the "vacation." 4 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." 5 
 
 J 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. 
 
 a 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. 1 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. 3 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. 4 
 
 A bridegroom, presenting a house, by way of jointure, 
 to his wife, before marriage, would create such an estate 
 in her by way of "jointure," if the gift was so conditioned, 
 hence the application of the term is proper, in the way 
 it is used. 
 
 Sec. 114. Acts by Attorneys.— 
 
 "Orl. Then, in mine own person, I die. 
 Ros. No faith, die by attorney. The poor world is al- 
 mos t 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. 
 
 3 2 Bl. Comm. 137. 
 
 4 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." (Act V, Scene III.) 
 
AS YOU LIKE IT. 157 
 
 there was not one man died in his own person, 
 videlicet, in a love cause." 1 
 
 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." 3 
 
 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. 
 
 2 Bacon, Abr. Attorney; Story, Agency Sec. 25. 
 
 Speaking of his offices in wooing Margaret for his sovereign, 
 Suffolk said, in V 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: 
 "Sufi. 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. 
 
 versa! law of compensation, which rewards or punishes all 
 offenders of the law, an apt comparison. Time, in the 
 law, often furnishes legal presumptions, for or against 
 a criminal, according to the facts and circumstances sur- 
 rounding the crime, which makes the similitude the more 
 complete. 1 
 
 1 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." 1 
 
 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. 2 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. 3 
 
 1 All's Well That Ends Well, Act I, Scene I. 
 2 Bouvier's Law Dictionary. 
 3 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." 1 
 
 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. 2 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. 3 
 
 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." 4 
 
 "Premises" is here used in the sense of that which has 
 already been put, or according to statements previously 
 made, 5 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. 
 
 1 All's Well That Ends Well, Act I, Scene III. 
 
 2 Greenleaf, Evid, (14 ed.). 
 
 3 Halliwell-Phillips quotes Palsgrave: "I apeche, I accuse, 
 f accuse; kursed be the preest of God, that dyd apeche me wrong- 
 fully and without deservyng." Rolfe's All's Well That Ends 
 Well, 169, notes. 
 
 4 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." 1 
 
 As theft is the secret and wrongful abstraction of the 
 property of another, without his consent, 2 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." 
 
 1 All's Well That Ends Well, Act II, Scene V. 
 
 2 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: 
 "JT. 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 V Henry IV (Act I, Scene II) Falstaff said to Prince Henry: 
 "Fal. Marry, then sweet wag, when thou aft king, let not us, 
 that are squires of the night's body, be called thieves of the day's 
 beauty." 
 
 King Henry tells Prince of Wales, in 2' Henry IV: "K. Hen. 
 . . . Thou hast stol'n that, which, after some few hours, were 
 thine without offense." (Act IV, Scene IV.) 
 
 The duke of Exeter, in Henry V, answering the argument of 
 Westmoreland as to danger from invasions by the Scots, said: 
 "We have locks to safeguard necessaries, and pretty traps to 
 catch the petty thieves." (Act I, Scene II.) 
 
 Troilus thus argues for the retention of Helen, in Troilus and Cressida; 
 "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 II.) 
 
162 THE LAW IN SHAKESPEARE. 
 
 Sec. 120. Descent.— 
 
 "Hel ... A ring the county wears, that downward 
 hath succeeded in his house, from son to son, some 
 four or five descents, since the first father wore it." 1 
 
 "Descents" is here used in the sense of generations, not 
 as a word showing title to the ring referred to. A title 
 by descent is the title by which one person, on the death 
 of another, acquired the real estate of the latter, as his 
 heir at law. 2 The ruies of descent are applicable only 
 to real estate of inheritance and not to personalty. 
 
 That the ring has passed from son to son, successively, 
 is in keeping with the English law of primogeniture, which 
 gave the heirlooms, such as that referred to, to the first 
 born, rather than to the younger children. 
 
 In justifying thievery, Timon of Athens, is made to say, to 
 
 the two Thieves who come upon him: 
 
 "Tim. I'll example you with thievery: 
 
 The sun's a thief, and with his great attraction, 
 Robs the vast sea; the moon's an arrant thief, 
 And her pale fire she snatches from the sun; 
 The sea's a thief, whose liquid surge resolves 
 The moon into salt tears: the earth's a thief, 
 That 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." 1 
 
 This verse recognizes the essential of every crime, the 
 wrongful intent, coupled with the wrongful act, in the 
 commission of the crime. 2 A deed not otherwise forbid- 
 den by law, may be prompted by a bad intent or wicked 
 object, but yet, as the act itself is lawful no crime is com- 
 mitted, but where both the act and the intent are lawful 
 it never is held to constitute a crime. The sinful intent on 
 the part of Bertram, not being participated in by Helena 
 and she being really his wife, with whom cohabitation was 
 not sinful, there was thus the "wicked meaning in a law- 
 ful deed, and lawful meaning in a lawful act," within the 
 contemplation of Helena. 
 
 Sec. 122. Unlawful intents.— 
 
 "1 Lord. Is it not meant damnable in us, to be trumpeters 
 of our unlawful intents?" 3 
 To render an act, forbidden by law, criminal, there must 
 always be a criminal or "unlawful intent" in the commis- 
 sion of the act 4 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.) 
 
 1 All's Well That Ends Well, Act III, Scene VII. 
 
 2 1 Russell, Crimes, (Greaves Ed.) 48. 
 
 3 All's Well That Ends Well, Act IV, Scene III. 
 
 4 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." 1 
 
 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. 2 Freehold estates are 
 either of inheritance or those not of inheritance, 3 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. 4 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. 5 
 
 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. 
 
 1 All's Well That Ends Well, Act IV, Scene III. 
 2 Teideman, R. P. Sec. 29 (3d ed.). 
 3 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." 1 
 
 Evidence, in law, includes all the means by which any 
 alleged fact is established or disproved. 2 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. 3 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.) 
 
 1 All's Well That Ends Well, Act V, Scene III. 
 
 2 1 Greenl. Evid. Sec. 1, Chap. 1. 
 
 8 1 Phillipps Evid. 166. 
 
 Clarence asks of the murderers, before his murder, in King 
 Richard III, Act I, Scene IV: "Clar. . . . Where is the evi- 
 dence that doth accuse me? What lawful quest have given their 
 verdict up unto the frowning judge?" 
 
 Clarence tells Brakenbury, in King Richard III: "Mar. 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." 1 
 
 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. 2 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. 3 
 
 1 All's Well That Ends Well, Act V, Scene III. 
 
 2 Bishop, Marriage and Divorce, Sec. 292. 
 
 3 Bishop, Marriage and Divorce, Sec. 3. 
 
 Polixenes, in Winter's Tale, is made to say, to his son: "Pol. 
 Mark your divorce, young sir, whom son I dare not call." (Act 
 IV, Scene III.) 
 
 In King Richard II, Bolingbroke thus addressed Bushy and 
 Green: 
 
 "Boling. . . . You have, in manner, with your sinful hours, 
 Made a divorce betwixt his queen and him; 
 Broke the possession of a royal bed, 
 And stained the beauty of a fair queen's cheeks, 
 With tears drawn from her eyes, by your foul wrongs." 
 
 (Act III, Scene I.) 
 King Richard II is made to say, to Northumberland: 
 "K. Rich. Doubly divorc'd? Bad men, ye violate 
 A twofold marriage; 'twixt my crown and me; 
 And then '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 III, Scene I.) 
 
 On finding gold in the forest, Timon of Athens, said: "Tim. 
 O thou sweet king-killer, and dear divorce, 'twixt natural son and 
 sire: thou bright defiler of Hymen's purest bed." (Act IV, 
 Scene III.) 
 Desdemona thus pleads with the beast Iago, in Othello: 
 "That I do not yet, and ever did, 
 And ever will, — though he do shake me off 
 To beggarly divorcement, — love him dearly, 
 Comfort forswear me." (Act IV, Scene II.) 
 
 Venus thus addresses death, in Venus and Adonis: 
 " 'Hard-favor'd tyrant, ugly, meager, lean, 
 Hateful divorce of love, — thus chides she death." (931, 932.) 
 
CHAPTER XII. 
 
 "THE TAMING OF THE SHREW." 
 
 Sec. 126. Third-borow. 
 
 127. Court-leet, or Manor Court. 
 
 128. Adversaries at Law. 
 
 129. Compounding crime. 
 
 130. Servant assaulting master. 
 
 131. Punishment by the Pillory. 
 
 132. Settlement by way of Assurance. 
 
 133. Chattels. 
 
 134. "Packing" a witness. 
 
 Sec. 126. Third-borow.— 
 
 "Host. I know my remedy, I must go fetch the third 
 
 borough. 
 Sly. Third, or fourth, or fifth borough, I'll answer him 
 
 by law ; 
 I'll not budge an inch, boy; let him come, and 
 
 kindly." 1 
 
 A thirdborough, or third-borow, 2 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. 3 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. 0, 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, 
 
 1 Taming of the Shrew, Induction, Scene I. 
 2 Bouvier's Law Dictionary. 
 'Lambard, Duty of Const., 6. 
 
 In Love's Labour's Lost, the Constable, Dull, is made to say: 
 "Dull. I myself reprehend his own person, for I am his grace's 
 tharborough," meaning that he is a peace officer. (Act I, Scene I.) 
 
 (168) 
 
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." 1 
 
 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. 2 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. 3 
 
 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." 4 
 
 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." 
 
 1 Taming of the Shrew, Induction, Scene II. 
 
 2 4 Bl. Comm. 273. 
 
 3 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." 1 
 
 Compounding a felony or misdemeanor rendered the 
 party so compounding such an offense, an accessory, at 
 common law. 2 Any act whereby the prosecutor or ag- 
 grieved person, for a reward, agreed not to prosecute the 
 offense was a compounding of the crime. 3 But the term 
 is used here as a synonym for compromise, rather than 
 in the technical sense. 
 
 Sec. 130. Servant assaulting master. — 
 
 "Gru. Nay, 'tis no matter what he 'leges in Latin — if 
 this be not a lawful cause for me to leave his service — 
 Look you, sir, — he bid me knock him, and rap him 
 soundly, sir; Well, was it fit for a servant to use his 
 master so?" 4 
 
 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. 5 
 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, w T as held justifiable, at common 
 law, as this was deemed a part of his duty, for which he 
 received his wages. 6 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. 
 
 1 Taming of the Shrew, Act I, Scene II. 
 
 2 Hawkins, PI. Cr. 125. 
 3 1 Chitty, Crim. Law, 4. 
 
 4 Taming of the Shrew, Act I, Scene II. 
 B l Bl. Comm. 324. 
 6 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." 1 
 
 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 2 (51 
 Hen. Ill, c. 6) the offenders liable to be subjected to such 
 punishments were "forestalled, users of deceitful weights, 
 perjurers, forgers," etc., and later libelers and publishers 
 of books not submitted to the censorship of the king were 
 
 1 Taming of the Shrew, Act II, Scene I. 
 
 3 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." 1 
 
 An assurance is a settlement, by written contract, in 
 legal form, of property or business differences between the 
 parties to the agreement, by the terms of which the one 
 is assured of a complete right or title, as against the other. 2 
 Deeds of assurance were used to grant marriage portions 
 and this is the way the term is applied in this connection. 
 
 Sec. 133. Chattels.— 
 
 "Pet. ... I 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." 3 
 
 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. 4 
 
 Any interest in land not amounting to a freehold, was 
 held to be a chattel interest therein. But as between prop- 
 erty thus savoring of the realty and mere personal mov- 
 ables, such as money, plate, cattle, or such like property, 
 there was a natural distinction, so chattels were divided 
 into chattels real and chattels personal. All character of 
 chattels, at the old common law, were regarded as inferior 
 
 1 Taming of the Shrew, Act II, Scene I. 
 'Bouvier's Law Dictionary. 
 'Taming of the Shrew, Act III, Scene II. 
 ♦Tiedeman, R. P. (3d ed.) Ch. 1. 
 
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." 2 
 
 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. 3 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: 
 "Pist. Come, lets away. — My love, give me thy lips; Look to my 
 chattels and my movables." This shows the Poet's familiarity 
 with the proper use of the term, for by the second noun, he not 
 only used a synonym, but apparently did it to define the first one 
 used. 
 
 On discovery of the duplicity of Cardinal Wolsey, King Henry 
 issued a writ against him to forfeit all his "goods, lands, tene- 
 ments, chattels and whatsoever," etc. (King Henry VIII, Act 
 III, Scene II.) 
 
 2 Taming of the Shrew, Act V, Scene I. 
 
 3 Bacon, Abr., Juries (M.). 
 
 The Moor, Aaron, in Titus Andronicus, speaks of packing with 
 Muliteus, for the exchange of children, as follows: 
 "Aar. . . Go pack with him, and give the mother gold, 
 And tell them both the circumstance of all." 
 
 (Act IV, Scene II.) 
 In Cymbeline, Cloten asks: "Who is here? What, are you 
 packing, sirrah?" (Act III, Scene V.) 
 
CHAPTER XIII. 
 
 "THE WINTER'S TALE." 
 
 Sec. 135. Time overthrows Law and Custom. 
 
 136. Trespass. 
 
 137. Negligence distinguished from wilfulness. 
 
 138. Prisoner's fees. 
 
 139. Not guilty. 
 
 140. King's prerogative. 
 
 141. Child born in prison. 
 
 142. Commitment to jail. 
 
 143. Arraignment of Hermione. 
 
 144. Surmises, not proof of guilt. 
 
 145. Indictment. 
 
 146. Torture by "boiling in oil". 
 
 147. Lawyer's points. 
 
 148. Arrested in the act, or, "Taken with the Manner." 
 
 149. Witchcraft and practice of magical arts. 
 
 Sec. 135. Time overthrows law and customs. — 
 
 "Time, as Chorus. Since it is in my power, 
 
 To o'erthrow law, and in one self-born hour 
 To plant and o'erwhelm custom." 1 
 
 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. 2 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. 3 In order to 
 establish a custom, such as would confer a right at law, 
 
 1 Winter's Tale, Act IV, Scene I. 
 
 2 Bacon, Abr., 1; 1 Bl. Comm. 76; 2 idem. 31. 
 8 2 Bl. Comm. 263. 
 
 Queen Margaret observes, in 3' Henry VI: "Q. Mar. Yet 
 heavens are just and time suppresseth wrongs." (Act III, Scene 
 ill.) 
 
 (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 o'erthrow law and in one self-born 
 hour, to plant and o'erwhelm 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." 1 
 
 A trespass is any wrongful act or omission resulting in 
 injury to the person or property of another. 2 The action 
 of trespass lies as well for injuries to the person, as by 
 an assault and battery, 3 as for an injury to the real estate 
 of the injured person. 4 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. 5 However, the distinctions 
 between the different kinds of trespass are not important 
 here. 
 
 The speaker asks for the facts in connection with the 
 charge of a wrongful act, on his part, not the mere conclu- 
 sion as to such offense and he promises, if the facts stated 
 are true, to admit them, or else he did not do the wrong 
 charged against him. 
 
 1 Winter's Tale, Act I, Scene II. 
 
 2 3 Bl. Comm. 208. 
 
 8 2 Aiken, (Vt.) 465. 
 4 3 Bl. Comm. 209. 
 6 1 Chitty, PI. 439. 
 
 Mowbray, duke of Norfolk, thus refers to the father of his foe, 
 in King Richard II (Act I, Scene I): 
 
176 THE LAW IN SHAKESPEARE. 
 
 "Nor. . . . Once did I lay an ambush for your life, 
 A trespass that doth vex my grieved soul." 
 The Duchess of York thus addresses her husband: 
 "Ducli. 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 Prance: "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, Menas 
 said to Pompey, in Antony and Cleopatra: 
 "Mew. I cannot hope, 
 
 Caesar and Antony shall well greet together: 
 His wife, that's dead, did trespasses to Caesar." 
 
 (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 wilfulness.— 
 
 "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." 1 
 
 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. 2 Wilfullness is a wrongful act, inten- 
 tionally done, to the injury of another in his person or 
 his property. 3 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. 
 
 1 Winter's Tale, Act I, Scene II. 
 
 2 1 Thompson on Negligence, Sees. 1, 15; 1 White, Per. Inj. on 
 R. R. Chapter 1. 
 
 3 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 V Henry VI, said: "Tal. O, negligent and 
 heedless discipline." (Act IV, Scene II.) 
 
178 THE LAW IN SHAKESPEARE. 
 
 Commenting on his neglect in losing his inventory, which 
 occasioned his undoing, Cardinal Wolsey, said, in King Henry 
 VIII: "Wol. O negligence fit for a fool to fall hy." (Act III, 
 Scene II.) 
 
 Caesar tells Octavia, in Antony and Cleopatra: 
 "Caes. Your letters did withold our breaking forth; 
 Till we perceived, both how you were wrong led, 
 And we in negligent danger." 
 And Cleopatra uses this bit of philosophy, in talking to Antony: 
 "Cleo. Celerity is never more admir'd, 
 
 Than by the negligent." (Act III, Scenes VI, VII.) 
 
 In Cymbeline, a gentleman is made to say: "1 Gent. How- 
 soe'er 'tis strange, or that the negligence may well be laugh'd yet 
 is it true, sir." (Act I, Scene I.) 
 
 Goneril tells the Steward, in King Lear: "Put on what weary 
 negligence you please," etc. (Act I, Scene 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, Iago and Roderigo, in Othello, say: 
 "Rod. Here is her father's house; I'll call aloud. 
 Iago. 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 Iago, in Othello: "She let it drop by negligence; 
 And, to the advantage, I, being here, took't up." (Act III, 
 Scene III.) 
 
 In the CXVIF Sonnet, the Poet speaks thus of wilfulness 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 you as a prisoner, 
 Not like a guest; so you shall pay your fees, 
 When you depart, and save your thanks." 1 
 
 These lines unquestionably refer to the practice, not 
 generally countenanced by the courts, on the part of 
 jailers and such officers, of exacting fees from discharged 
 prisoners, when they were discharged, regardless of their 
 guilt or innocence. Of this procedure, in England, Lord 
 Campbell says: "It may have been enforced until very 
 recently, but could hardly be known to any except law- 
 yers, or those who had been in prison, on criminal 
 charges." 2 
 
 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 
 
 1 Winter's Tale, Act I, Scene II. 
 
 2 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.) 
 
 3 Winter's Tale, Act I, Scene II. 
 
180 THE LAW IN SHAKESPEARE. 
 
 trial. Such a plea places upon the prosecution the burden 
 of establishing, by competent proof, every fact esseniial 
 to constitute the offense charged in the indictment or in- 
 formation. 1 As this plea raises the general issue, the de- 
 fendant can put in evidence, under it, any fact which 
 negatives the allegation of the indictment or information, 
 as well as all matter of justification or excuse. 2 
 
 Sec. 140. King's prerogative. — 
 
 "Leon. . . . Our prerogative calls not your counsels ; 
 But our natural goodness imparts this." 3 
 
 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. 4 
 
 The royal prerogative, in English law, was the arbitrary 
 power, vested in the King, to do good and not evil. 5 Un- 
 der the law, the King in such matters as that here consid- 
 
 1 1 Bishop's Cr. Proc. Sec. 794. 
 
 2 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.) 
 
 3 Winter's Tale, Act II. Scene I. 
 
 4 Bouvier's Law Dictionary. 
 
 5 Bacon, Abr.; Chitty, Prerog.; Coke, Litt. 90. 
 
WINTER S TALE. 181 
 
 ered, did not have to take the counsel of his courtiers, but 
 was permitted to follow such promptings as his own con- 
 science suggested, hence the truth of the verse, from a 
 strictly legal standpoint : "Our prerogative calls not your 
 counsels ; But our natural goodness imparts this." 
 
 Sec. 141. Child born in prison. — 
 
 "Paul. You need not fear it sir; 
 
 The child was prisoner to the womb; and is, 
 By law and process of great nature, thence, 
 Freed and enfranchis'd: not a party to 
 The anger of the king; nor guilty of, 
 If any be, the trespass of the queen." 1 
 
 This verse correctly states the common law of England 
 as to the protection of an infant, from the punishment its 
 mother is compelled to undergo. Lawful prisoners were 
 those only who were charged with some crime and as 
 an infant of tender years could not commit a crime, it 
 could not lawfully be held a prisoner, because of a crime 
 committed by the mother. 2 
 
 Speaking of his prerogative, Charles, Dauphin of France, said, 
 in V 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: 
 "Sic. . . 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 ILL) 
 
 In King Lear, when accused of her intrigue and crimes with 
 Edmund, Goneril does not deny it, but replies: "Say, if I do; the 
 laws are mine, not thine; Who shall arraign me for it?" (Act 
 V, Scene III.) And as the King or Queen, could, in law, do no 
 harm, the question, from a strictly legal standpoint, was proper, 
 since no one could accuse the queen, or arraign her for such an 
 offense. 
 
 1 Winter's Tale, Act II, Scene II. 
 »6 Toullier, 82, 83. 
 
182 THE LAW IN SHAKESPEARE. 
 
 It was the practice, established by the ancient cases in 
 the Year Books, on the sentencing of a woman, to always 
 ask if she had anything to allege why the execution of the 
 sentence ought to be stayed. If she replied that she was 
 "quick with child" a jury of matrons were summoned to 
 try this issue and if they found in the affirmative, the 
 sentence was stayed until the birth of the infant. 1 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. 2 
 
 Paulina was therefore right and the infant Princess was 
 thence, "By law and process of great nature" free'd and 
 enfranchis'd," "Nor guilty of, if any be, the trespass of 
 the queen." 
 
 J l Chitty, Cr. Law, 760; 1 Bishop's Cr. Proc. Sec. 1323. 
 2 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." 1 
 
 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 2 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. 3 
 
 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. 4 
 
 Sec. 143. Arraignment of Hermione. — 
 
 "Offi. Hermione, queen of the worthy Leontes, king of 
 Sicilia, thou art here accused and arraigned of high 
 treason, in committing adultery with Polixenes, king 
 of Bohemia; and conspiring with Camillo, to take 
 away the life of our sovereign lord the king, thy 
 royal husband; the pretence whereof, being by cir- 
 cumstances partly laid open, thou, Hermione con- 
 trary to the faith and allegiance of a true subject, 
 did'st counsel and aid them, for their better safety, 
 to fly away by night." 5 
 
 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. 
 
 1 Winter's Tale, Act IT, Scene III. 
 
 2 Bouvier's Law Dictionary. 
 
 3 Sherwood's Criminal Law. 
 
 4 II Reeve's History Eng. Law, p. 418. 
 6 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 Her- 
 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 defmiteness 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. 1 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. — 
 
 "Her. . . . 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, His rigour and not law." 3 
 
 Legal evidence consists of those facts within the knowl- 
 edge of the witnesses called, legally submitted, upon the 
 issues in dispute, as distinguished from all comments, 
 
 * Bacon, Abr., Indictment, (Gl) ; 1 Chitty, Cr. Law, 217, 224; 
 297. 
 
 'Archbold, Cr. PI. (14th ed.) 129; 1 Leach, Cr. Cas, (4th ed. 
 102; Carrington, Cr. Law, 57; 6 Cox, Cr. Cas. 386. 
 
 8 Winter's Tale, Act III, Scene II. 
 
winter's TALE. 185 
 
 arguments or "surmises" as to facts not within the knowl- 
 edge of the witnesses who testify in the given cause. 1 
 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. 2 
 
 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." 3 
 
 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. 4 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. 5 
 
 An accusation made by the crown and found to be 
 true by a grand jury, furnished the basis for a regular 
 indictment, 6 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. 7 
 
 The reading of the indictment, in practice, to the de- 
 
 a l Greenl. Evidence, ch. 1; 1 Starkie, Evid., part 1, sec. 1. 
 2 1 Starkie, Evid., pt. 1, p. 44; 1 Phillipps, Evid. 185. 
 •'Winter's Tale, Act III, Scene II. 
 4 Bacon, Abr., 4 Bl. Comm. 299; Coke, Litt. 126. 
 ■ 4 Bl. Comm. 308. 
 
 •1 Chitty, Cr. Law, 168; Comyns, Dig.; Bacon, Abr., Indictment. 
 T Bacon, Abr., Indictment, (G2) ; Hawkins, PI. Cr. b. 2, r. 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." 1 
 
 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?" 2 
 
 This reference is clearly to a unique and barbarous 
 statute of the time of Henry VIII, 3 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." 4 
 
 *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. 
 
 9 22 Henry VIII, c. 9. 
 
 4 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." 1 
 
 The "points," in a lawsuit are the legal propositions or 
 questions, arising in the trial of a case. 2 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. 3 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." 4 
 
 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. 6 
 
 1 Winter's Tale, Act IV, Scene III. 
 
 2 Bouvier's Law Dictionary. 
 * Bouvier's Law Dictionary. 
 ♦Winter's Tale, Act IV, Scene IV. 
 "Bracton, lib. iii, fol. 12; Britton, fol. 22. 
 
 6 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/' 1 
 
 As observed by Doctor Rolfe, 2 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 fcvil 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. 3 
 
 1 Winter's Tale, Act V, Scene III. 
 'Rolfe's Winter's Tale, p. 264, notes. 
 3 V Reeve's History Eng. Law, p. 349. 
 
 The belief in witchcraft, which crystallized into different 
 statutes, during the lifetime of the Poet, was so general that 
 Shakespeare has many references to it. In Pericles, Prince of 
 Tyre, Simonides is made to say to the Prince: "Thou hast be- 
 witch'd my daughter and thou art a villain." (Act II, Scene V.) 
 
 During the reign of William and Mary, in 1692, one Bridgett 
 Bishop was executed for witchcraft, and following is copy of the 
 warrant and of the return by the Sheriff of Salem, Massachusetts: 
 
 "To George Corwin Gent'n, High Sheriffe of the County of Essex 
 Greeting 
 
 WHEREAS Bridgett Bishop al's Olhver, the wife of Edward 
 Bishop of Salem in the County of Essex Lawyer at a special! 
 Court of Oyer and Terminer held at Salem the second Day of 
 this instant month of June for the Countyes of Essex Middlesex 
 and Suffolk before William Stoughton Esqe. and his associates 
 of the said Court was Indicted and arraigned upon five several 
 Indictments for using practising and exerclseing on the * * * 
 
winter's tale. 189 
 
 last past and divers other dayes and times the felonies of Witch- 
 craft in and upon the bodyes of Abigail Williams, Ann Putt- 
 nam * * * Mercy Lewis, Mary Walcott and Elizabeth Hub- 
 bard of Salem Village * * * single women; whereby their 
 bodyes were hurt, afflicted, 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. Stoughtox." 
 "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 Corwix. 
 
 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 OP ERRORS." 
 
 Sec. 150. Earnest to bind bargain. 
 
 151. Attachment. 
 
 152. Arrest. 
 
 153. Breach of Promise. 
 
 154. Arrest upon mesne process — Debtor's dungeon. 
 
 155. Action "on the case." 
 
 156. Subornation. 
 
 157. Prisoner. 
 
 Sec. 150. Earnest to bind bargain. — 
 
 "Dromio of S. Hold, sir, for God's sake: now your jest 
 is earnest. 
 Upon what bargain do you give it me?" 1 
 
 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. 2 It is not 
 the earnest which makes the contract (legal, 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, 3 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. 4 
 
 1 Comedy of Errors, Act II, Scene II. 
 
 2 Lawson, Contracts (3d ed.) 
 
 3 Coke, Inst., b. iii, tit. iii, s. 5 ; Story, on Sales, p. 216. 
 
 * Ante idem. 
 
 (190) 
 
co:.™-; c )? 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." 1 
 
 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 3 and this law con- 
 tinued in effect in the United States, until the different 
 states abolished same by special statutes and organic law. 4 
 
 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.) 
 
 1 Comedy of Errors, Act IV, Scene I. 
 
 2 3 Bl. Comm. 280; 4 idem. 283.; Strange, 441. 
 
 3 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. 1 
 
 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." 2 
 
 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. 3 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.) 
 
 2 Comedy of Errors, Act IV, Scene I. 
 8 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. 1 
 
 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. 2 
 
 Sec. 153. Breach of promise. — 
 
 "Ant. E. Good lord, you use this dalliance to excuse, 
 Your breach of promise to the Porcupine." 3 
 
 1 Reeve's History, Eng. Law, pp. 439, 440; Bracton, 440. 
 
 2 Bouvier's Law Dictionary. 
 
 The Merchant directs the officer to arrest Angelo, in Comedy 
 of Errors, as follows: "Mer. Well, officer, arrest him, at my 
 suit. Off. I do; and charge you, in the Duke's name, to obey 
 me." (Act IV, Scene I.) 
 
 Westmoreland arrests Archbishop of York, Hastings and Mow- 
 bray, in 2' Henry IV (Act IV, Scene II) with this speech: "West. 
 Good tidings, my lord Hastings; for the which, I do arrest thee, 
 traitor, of high treason: And you, lord archbishop — and you, 
 lord Mowbray, of capital treason I attach you both." 
 
 The following occurs in the arrest of Falstaff, at the suit 
 of the hostess, in 2' Henry IV (Act II, Scene I): "Fang. Snare, 
 we must arrest sir John Falstaff. 
 
 Host. Yes, good master Snare; I have entered him and 
 all." 
 
 "Fang. Sir John, I arrest you at the suit of mistress 
 Quickly." 
 
 After denunciation of the traitors, in King Henry V, they were 
 all ordered arrested and 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.) 
 
 3 Comedy of Errors, Act IV, Scene I. 
 
194 THE LAW IN SHAKESPEARE. 
 
 A breach of promise is the violation or failure to per- 
 form some obligation, engagement or duty, assumed by 
 the party so failing. 1 The words are not used in this 
 verse in their technical legal sense, but rather in the sense 
 that a mere engagement upon which no legal action could 
 be maintained, was broken. 
 
 Sec. 154. Arrest upon mesne process — Debtor's dun- 
 geon. — 
 
 "Dromio of S. No, he's in Tartar limbo, worse than hell. 
 
 A devil in an everlasting garment hath him; 
 
 One whose hard heart is button'd up with steel; 
 
 A fiend, a fairy, pitiless and rough; 
 
 A wolf, nay, worse, a fellow all in buff; 
 
 A back-friend, a shoulder-clapper, one that counter- 
 mands 
 
 The passages of alleys, creeks, and narrow lands; 
 
 A hound that runs counter and yet draws dry foot 
 well; 
 
 One that before the judgment carries poor souls to 
 hell." 2 
 
 Dromio means to convey the idea that the arrest has 
 been made by an officer, upon mesne process, 3 before final 
 judgment or trial, and he will be placed in a debtor's 
 dungeon, which was meant by the cant term, "hell." 4 
 By the terms "back-friend" and "shoulder-clapper," he 
 means an officer who approaches from the rear of the 
 person arrested, 5 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 
 
 J Comyns Did., C. 45-49. 
 
 2 Comedy of Errors, Act IV, Scene II. 
 
 3 Bouvier's Law Dictionary. 
 
 4 There was a place under the Exchequer Chamher, 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. 1 
 
 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." 3 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. 4 
 
 Sec. 156. Subornation. — 
 
 "Ant. E. Thou hast suborn'd the goldsmith to arrest me." 5 
 Suborn is to procure privately or secretly, as where one 
 is incited to perform a criminal or bad action, by bribe 
 or persuasion. 6 
 
 1 Newell on Mai. Pros, and False Arrest. 
 
 2 Comedy of Errors, Act IV, Scene II. 
 
 3 Cooley's Torts. 
 4 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. 
 
 5 Comedy of Errors, Act IV, Scene IV. 
 
 6 Bouvier's Law Dictionary. 
 
196 THE LAW IN SHAKESPEARE. 
 
 In law, when one is procured to take a false oath, he is 
 said to have been "suborned" to commit perjury and the 
 one who so procures him to falsely testify is said to be 
 guilty of subornation of perjury. 1 
 
 *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 r 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: 
 "Pue. Peasant avaunt; you have suborn'd this man, 
 
 Of purpose to obscure my noble birth." (Act V, Scene IV.) 
 Suffolk thus pleads against the good Gloster, in 2' Henry VI: 
 "Suff. . . Hath he not twit our sovereign lady here, With 
 ignominious words, though clerkly couched, As if she had 
 suborned some to swear, false accusations to o'erthrow his state." 
 (Act III, Scene I.) 
 
 Gloster tells King Henry VI: "Glo. . . Foul subornation 
 is predominant and equity exil'd your highness' land." (2' Henry 
 VI, Act III, Scene I.) 
 
 Attempting to make Gloster responsible for the treason of his 
 wife, Suffolk, in 2' Henry VI, said: "Suff. . . The duchess, 
 by his subornation, upon my life, began her devilish practices." 
 (Act III, Scene I.) 
 
 Tyrell, in King Richard III, refers to 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." 1 
 
 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. 4 
 
 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. 
 
 2 Bouvier's Law Dictionary. 
 
 •6 Toullier, 82. 
 
 4 1 Salk. 402 ; II Reeve's History Eng. Law, 439, 440. 
 
 After his arrest, on the attempt to over-power him, Antipholus 
 said to the Officer: "Ant. What, will you murder me? Thou 
 gaoler, thou, I am thy prisoner; wilt thou suffer them to make a 
 rescue? Off. Masters, let him go; He is my prisoner and you 
 shall not have him." (Comedy of Errors, Act IV, Scene IV.) 
 
 In 1' Henry IV, King Henry thus addressed Hotspur: "K. 
 Hen. . . Send me your prisoners, with the speediest means, 
 or you shall hear in such a kind from me, as will displease you." 
 (Act I, Scene III.) 
 
CHAPTER XV. 
 
 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. 
 
 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." 1 
 
 Estate is the condition and relation which an owner 
 bears toward his property of any description. 2 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. 3 
 
 1 Macbeth, Act I, Scene IV. 
 
 2 Coke, Litt., sees. 345, 650. 
 
 3 Bouvier's Law Dictionary, Primogeniture. 
 
 In the more extensive use of the word, it signifies everything 
 of which riches may consist — and this is the sense in which it 
 is used here — and in the technical sense, it indicates the degree 
 or nature of one's ownership in land. 
 
 In As You Like It (Act I, Scene I) Rosalind said: 
 
 "Ros. Well, I will forget the condition of my estate, to rejoice 
 in yours." 
 
 Lord Abergavenny, in King Henry VIII, speaking of the pageant 
 
 (198) 
 
MACBETH. 199 
 
 Sec. 159. Execution. 
 
 "Bun. Is execution done on Cawdor? Are not those 
 in commission yet returned?" 1 
 
 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. 3 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. 4 
 
 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: 
 li 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, Iachimo said to Posthumus, on making the 
 wager: "Iach. 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.) 
 
 1 Macbeth, Act I, Scene IV. 
 
 2 3 Bl. Comm. 412. 
 
 3 5 Barnew. & C. 850. 
 
 4 4 Bl. Comm. 403. 
 
200 THE LAW IN SHAKESPEARE. 
 
 Sec. 160. Instigation of Macbeth 's crime. — 
 
 "Macb. My dearest love, Duncan comes here to-night. 
 
 Lady M. And when goes hence? 
 
 Macb. 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." 1 
 
 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 w T hich 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." 1 
 
 Sec. 161. Agent.— 
 
 "Macb. I am settled and bend up each corporal agent 
 to this terrible feat." 2 
 
 1 Goll's Criminal Types in Shakespeare, (Mrs. Weeks tr.) pp. 
 97-99. 
 
 Discussing Macbeth's acquiescence in the criminal intent of his 
 wife, August Goll, in his Criminal Types in Shakespeare, fur- 
 ther adverts to the words, spoken in reply to his wife's sugges- 
 tion, wherein he said, 
 
 "We will speak further," 
 as follows: "Macbeth's freedom of action is vanishing: the 
 words are, this time, perfectly in tune with Lady Macbeth's 
 guilty speech; it is only his own duplicity which, though badly 
 enough, still makes the reservation possible: this must be fur- 
 ther discussed; but the reservation is now quite subjective, it 
 exists only in Macbeth's own mind; it is there he reserves the 
 right to weigh the case once more, ./"rom Lady Macbeth's point 
 of view the speech must be understood as a veiled promise. 
 The crime is coming into existence." (Goll's Criminal Types in 
 Shakespeare, p. 109.) 
 
 And commenting further on this skillful portrayal of the 
 instigation of the murder, Goll observes: "Less eminent psychol- 
 ogists than Shakespeare would probably have made Lady Mac- 
 beth try to refute Macbeth's counter reasons in a logical duel, 
 following the complete explanation of them to her. . . Lady 
 Macbeth does not need to hear Macbeth's reasons against; she 
 knows them all beforehand, because she knows him and is able 
 to follow his thoughts, which are all merely deductions from 
 his own fundamentally-honest and socially-minded self. That 
 is the reason she does not enter into them. She goes behind 
 them all, directs her attack straight against this self, tries to 
 touch the chord which lies deepest in Macbeth's heart, to make 
 it beat in time with her own purpose." (Pages 112, 113.) 
 
 Lady Macbeth's pride and admiration for her husband and her 
 desire to see him the ruler of the kingdom, is treated by Magis- 
 trate Goll as the all powerful motive which prompts her course 
 in the commission of the murder of Duncan. (Goll's Criminal 
 Types in Shakespeare, pp. 138-140.) 
 
 2 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 quasi legal sense, 
 for in limiting the term to corporal agencies, it means 
 the hands and other organs of the speaker's body, as dis- 
 tinguished from persons in his service. 
 
 Sec. 162. Trust, from fiduciary relation.— 
 
 "Macb. He's here in double trust: 
 
 First, as I am his kinsman and his subject, 
 Strong both against the deed; then, as his host. 
 Who should against his murderer shut the door, 
 Not bear the knife myself." 2 
 
 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. 3 
 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 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: "Paw. . . O 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.) 
 
 2 Macbeth, Act I, Scene VII. 
 
 3 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. 1 
 
 Sec. 163. Murder.— 
 
 "Macb. . . . Now witchcraft celebrates 
 
 Pale Hecates offerings; and withered 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." 2 
 
 Murder is the willful killing of a human being, with 
 malice aforethought. 3 The strongest evidence of malice is 
 a lying in wait, or such stealth as that referred to in this 
 verse. The idea of the wolf acting as sentinel for the 
 murderer, who with stealthy stride glides to his victim, 
 like a ghost, presents a realistic picture of the murderer, 
 with all the legal essentials of the crime. 
 
 *A "Hospitator," at law, who was a host, or entertainer, was 
 bound to look after the security of his guest, so the Poet but 
 expresses, in this "double trust," the law as it then existed. 
 
 2 Macbeth, Act II, Scene I. 
 
 3 1 Russell, Crimes, 421; Coke, 3' Inst, 47. 
 
 In this same play, the Poet has Macbeth also soliloquize: 
 "Methought I heard a voice cry, sleep no more: Macbeth does 
 murder sleep, the innocent sleep," etc. (Macbeth, Act II, 
 Scene II.) 
 
 And again, he said: "Most sacrilegious murder hath broke 
 ope the Lord's annointed temple, and stole hence the life o' the 
 building." (Macbeth, Act II, Scene III.) 
 And while at the banquet, Macbeth suddenly exclaims: 
 "Blood hath been shed ere now, i'the olden time, 
 Ere human statute purg'd the gentle weal; 
 Aye, and since too, murders have been perform'd 
 Too terrible for the ear: the times have been 
 That, when the brains were out, the man would die, 
 And there an end; but now, they rise again, 
 With twenty mortal murders on their crowns, 
 And push us from our stools: This is more strange 
 Than such a murder is." (Macbeth, Act III, Scene IV.) 
 
204 THE LAW IN SHAKESPEARE. 
 
 Macbeth and Lady Macbeth, are discussed by August 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 1' Henry VI: "War. You see what mischief and what mur- 
 der too, hath been enacted through your enmity." (Act III, 
 Scene I.) 
 
 Replying to his accusers, Gloster, in 2' Henry VI, is made to say: 
 "Glo. . . 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." 1 
 
 Malice is the doing of a wrongful or illegal act, inten- 
 tionally, without just cause or excuse. 2 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. 3 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: 
 
 "Suff. . Why, Warwick, who should do the duke to death, 
 Myself, and Beaufort, had him in protection; 
 And we, I hope sir, are no murderers." (Act III, Scene II.) 
 Warwick thus upbraids Suffolk, in 2' Henry VI: 
 
 "War. But that the guilt of murder bucklers thee, 
 And I should rob the deathsman of his fee, 
 Quitting thee thereby of ten thousand shames, 
 And that my sovereign's presence makes me mild, 
 I would, false murderous coward, on thy knee, 
 Make thee beg pardon for thy passed speech, 
 And say, it was thy mother that thou meant'st,' 
 That thou thyself wast born in bastardy: 
 And, after all this fearful homage done, 
 Give thee thy hire and send thy soul to hell." 
 
 (Act III, Scene II.) 
 Queen Margaret, on the death of her son, in 3' Henry VI, said: 
 
 "Q. Mar. What's worse than murder, that I may name it?" 
 
 (Act V, Scene V.) 
 
 1 Macbeth, Act II, Scene III. 
 2 1 Chitty, 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, Falstaff replies to the Chief Justice: "Fal. . . 
 all the other gifts appertinent to man, as the malice of this age 
 shapes them, are not worth a gooseberry." (Act I, Scene II.) 
 
 Warwick, in 1' Henry VI, said of the Bishop of Winchester: 
 "War. An uproar, I dare warrant, begun through malice of the 
 bishop's men." (Act III, Scene I.) 
 
 King Henry VI, thus upbraids the Bishop of Winchester, for 
 refusing the olive branch of peace offered by Gloster: "K. Hen. 
 Fie, uncle Beaufort, I have heard you preach that malice was 
 a great and grievous sin." (Act III, Scene I.) 
 
 Gloster tells the Bishop of Winchester, in 1' Henry VI: 
 "Glo. . . Besides, I fear me, if thy thoughts were sifted, 
 The king, thy soverign, is not quite exempt, 
 From envious malice of thy swelling heart." 
 
 (Act III, Scene I.) 
 
 Speaking of the Cardinal, in 2' Henry VI, Gloster said: "Glo. 
 . . Churchman so hot? good uncle hide such malice; with 
 such holiness can you do it." (Act II, Scene I.) 
 
 Gloster, after his arrest, tells the king, in 2' Henry VI: 
 "Glo. . . Beaufort's red sparkling eyes blab his heart's malice, 
 And Suffolk's cloudy brow, his stormy hate." (Act III, Scene I.) 
 
 The wicked Margaret is made to say, in 2' Henry VI, referring 
 to the trial of Gloster, whom she had conspired to have mur- 
 dered: "Q, Mar. God forbid any malice should prevail, that fault- 
 less should condemn a nobleman." (Act III, Scene II.) 
 
 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." 1 
 
 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. 2 The tenure of 
 the tenant of such an estate was by copy of court roll, 
 hence the term, copyholder. 3 
 
 Sec. 166. Single ownership. — 
 
 "Macd. What concern they? 
 
 The general cause? or is it a fee-grief, 
 Due to some single breast." 4 
 
 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: "Cran. . . 
 Men, that make Envy, and crooked malice, nourishment, dare 
 bite the best." (Act V, Scene II.) 
 
 1 Macbeth, Act III, Scene II. 
 
 2 2 Bl. Comm. 95. 
 
 »2 Bl. Comm. 95; Tiedeman, R. P. (3'ed.) 19, 23. 
 
 •Macbeth, Act IV, Scene III. 
 
 By reference to Holinshed's and Buchanan's history of Scot- 
 land, it will be seen that the Poet, in Macbeth, has adhered 
 strictly, in plot and scope of the play to the traditions of history. 
 In giving the interview between Malcolm and Macduff, at the 
 English Court, the text of the play, in part uses the same 
 language as that of history and the conversation is presented in 
 the same order. 
 
CHAPTER XVI. 
 
 "KING JOHN." 
 
 Sec. 167. 
 
 Controversy— Judgment on. 
 
 168. 
 
 Descent to eldest son. 
 
 169. 
 
 Bastard's right to inheritance. 
 
 170. 
 
 Child begot when father not infra quatuor maria, 
 
 171. 
 
 Legitimacy of child born during lawful wedlock. 
 
 172. 
 
 Testamentary disposition, disinheriting bastard. 
 
 173. 
 
 Landed 'Squire. 
 
 174. 
 
 Seduction. 
 
 175. 
 
 Arbitration. 
 
 176. 
 
 Usurpation — Denial of rights. 
 
 177. 
 
 Equity. 
 
 178. 
 
 Canon of the Law. 
 
 179. 
 
 Abstract and Brief. 
 
 180. 
 
 Indenture. 
 
 181. 
 
 Rape. 
 
 182. 
 
 Interrogatories. 
 
 183. 
 
 Tithes— Toll. 
 
 184. 
 
 Laws' redress of wrongs. 
 
 185. 
 
 Keeping the Peace. 
 
 186. 
 
 Source of Sovereign power. 
 
 Sec. 167. Controversy — Judgment on. — 
 
 "Essex. My liege, here is the strangest controversy, 
 Come from the country to be judged by you, 
 That ere I heard: Shall I produce the men?" 1 
 
 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. 2 
 
 1 King John, Act I, Scene I. 
 3 Bouvier's Law Dictionary. 
 
 (208) 
 
KING JOHN. 209 
 
 Sec. 168. Descent to eldest son. — 
 
 "K. John. What art thou? 
 
 Rob. The son and heir to that same Faulconbridge. 
 K. John. Is that the elder, and art thou the heir? 
 You came not of one mother, then, it seems." 1 
 
 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. 2 
 This was the rule of primogeniture, which gave the first 
 born the estate of the parent. 3 
 
 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. 
 
 1 King John, Act I, Scene I. 
 
 2 2 Bl. Comm. 214, 215. 
 3 Tiedeman, R. P. (3' ed.) Sec. 474. 
 
210 THE LAW IN SHAKESPEARE. 
 
 K. John. Sirrah, speak, what doth move you to claim 
 your brother's land? 
 
 Bast. Because he hath a half-face, like my father; 
 With that half -face, would he have all my land : 
 A half -faced groat five hundred pounds a year." 1 
 
 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. 2 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. 3 
 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. 4 
 
 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, 5 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, 6 hence the 
 reference of this issue, by Phillip, to his mother, as the 
 most competent witness on this issue, his father being 
 dead. 7 
 
 1 King John, Act I, Scene I. 
 
 8 2 Kent's Comm. 210; Coke, Litt., 123b. 
 
 •1 Bl. Comm. 459. 
 
 4 Gilbert, Tenures, 20; 4 Kent's Comm. 417. 
 
 «1 Bl. Comm. 458. 
 
 •Gardner, Peerage Case, Le M. Rep; 1 Bl. Comm. 458. 
 
 7 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. — 
 
 "Rob. My gracious liege, when that my father liv'd, 
 Your brother did employ my father much; — 
 
 And once, dispatched .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 snores, 
 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." 1 
 
 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: 
 
 "Glo. But I have, sir, a son by order of law, some year elder 
 than this, who yet is no dearer in my account." (Act I, Scene I.) 
 
 Gloster tells Edmund, in King Lear: "Loyal and natural boy, 
 I'll work the means to make thee capable," meaning that he will 
 remove the legal impediment, because of his bastardy, so he can 
 inherit land. (Act II, Scene I.) 
 
 Tarquin taunts the honest Lucrece that after his crime her 
 children or issue shall be "blurr'd with nameless bastardy." (521.) 
 
 A bastard did not know his father and hence, could have no 
 name, and was known at law as without an inheritance, or 
 nullius fllius. 
 
 1 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. 1 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, which 
 the bastardy of his brother would have prevented him 
 from inheriting. 2 
 
 ^oke, Litt., 244; 1 Bl. Comm. 456, 457. 
 2 1 Bl. Comm. 455. 
 
 Ever since the case of Pendrell vs. Pendrell, Str. 925, the doc- 
 trine of issue born of lawful wedlock, is illegitimate if the hus- 
 band was infra quatuor maria, has been exploded, and the fact 
 of access or non-access is to be determined like any other fact 
 in the case, by competent evidence. See Nicholas, Treatise on 
 Law of Adulterine Bastardy, 1836. 
 
 In urging the false accusation of King Edward's bastardy, 
 against his own mother, to accomplish the overthrow of the 
 children of his dead brother, King Richard III said to Buck- 
 ingham: "Glo. . . Tell them, when that my mother went with 
 child, 
 
 Of that insatiate Edward, noble York, 
 
 My princely father, then had wars in 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 JOHN. 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; no/ 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." 1 
 
 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, 2 that there must be non-access established dur- 
 ing the whole period of pregnancy, in order to bastardize 
 the issue. Rolle, states the law then to be, "By the law 
 of the land no man can be a bastard who is born after 
 marriage, unless for special matter," 3 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 
 
 1 King John, Act I, Scene I. 
 
 I Regina vs. Murray, Salk. 122; Rex vs. Albertson, 1 Lord Ray, 
 395; Salk. 484; Carth, 469. 
 
 I I Rol. Abr. 358, tit. Bastard, letter B. 
 
214 THE LAW IN SHAKESPEARE. 
 
 husband shall be presumed, unless the contrary can be 
 shown." 1 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 ; 2 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, 3 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. 4 
 
 As the case made, on the facts presented, did not pre- 
 sent such strong probative force as to overcome the legal 
 presumption of legitimacy, the inheritance, as a conse- 
 quence of the conclusion against the bastardy of Phillip, 
 would go to him. 
 
 Sec. 172. Testamentary disposition disinheriting bas- 
 tard. — 
 
 "Rob. Shall then my father's will be of no force, 
 To dispossess that child which is not his? 
 
 Bast. Of no more force, to dispossess me, sir, 
 Than was his will to get me, as I think." 5 
 
 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. 6 Of course, where the 
 
 »B1. Comm. 457. 
 
 3 Rex vs. Albertson, Carthew, 468, 9. 
 3 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 Eobert, 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." 1 
 
 "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 2 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. 
 3 Camden. 
 
 Speaking of Shallow, Falstaff said, in 2' Henry IV (Act III, 
 Scene II): "Fal. . . 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: "Shal. I am Robert 
 Shallow, sir; a poor esquire of this county and one of the king's 
 justices of the peace: What is your good pleasure with me?" 
 (2' Henry IV, Act III, Scene II.) 
 
 Referring to his desertion, before the battle of Patay, Talbot 
 said of Fastolfe in V 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: "Iden. 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 I was seduc'd 
 To make room for him in my husband's bed." 1 
 
 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, 3 and on 
 such a trial there is a presumption of chastity on the part 
 of a woman of previously good reputation. 4 
 
 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 Iago, in Othello, in defending Desdemona: 
 "O, 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: "Cos. Therefore 'tis meet That noble minds 
 keep ever with their likes: For who so firm, that cannot be 
 seduc'd." - (Julius Ceesar, 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." 1 
 
 Arbitration is the investigation and settlement of the 
 differences between contending parties, by one or more 
 persons chosen by the parties, called arbitrators. 2 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. 
 
 1 King John, Act I, Scene I. 
 
 2 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 emd crowns 
 all; and that old common arbitrator, time, will one day end it." 
 (Act IV, Scene V.) 
 Before taking the potion, Juliet observes, while lookingon 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." 1 
 
 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. 2 Lord Coke 
 spoke of usurpation arising whenever a subject used the 
 franchise of the king, without lawful authority, 3 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. 
 2 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. 1 
 
 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." 2 
 
 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. 3 
 
 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." 4 
 
 An "abstract," in law, is a short account of the different 
 portions of the lawsuit, with a synopsis of the evidence 
 
 1 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.) 
 
 2 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. 1 Abstracts are filed in appeal cases, be- 
 fore the brief is filed for the perusal of the court, wherein 
 the cause is pending. A "brief" is an abridged state- 
 ment of the parties' cause, with a presentation of the points 
 or issues involved in the cause. 2 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." 3 
 
 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 
 
 1 Wharton, Law Dictionary. 
 
 2 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. 1 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 a's 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. 2 
 
 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." 3 
 
 "Rape," in its broadest sense, means to snatch, or seize 
 with violence, 4 and but for the connection in which the 
 
 1 1 Reeve's Hist. Eng. Law, 89. 
 
 2 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. 
 
 4 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. 1 
 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 2 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." 
 
 *12 Coke, 37; 4 Sh. Bl. Comm. 213; 2 Bishop, Cr. Law, 942; 2 
 Chit. Cr. Law, 810. 
 2 2 Westminster, c. 34; 18 Eliz. c. 7, s. 4. 
 
 Paris thus attempts to justify his rape of Helen, in Troilus 
 and Cressida: 
 
 "Par. Sir, I propose, not merely to myself, 
 The pleasures such a beauty brings with it; 
 But I would have the soil of her fair rape 
 Wip'd off, in honourable keeping her." (Act II, Scene II.) 
 The Poet distinguishes between the act of carnal knowledge 
 with one's wife and the crime of rape, in the following lines, in 
 Titus Andronicus: 
 "Sat. Traitor, if Rome have law, or we have power, 
 
 Thou and thy faction shall repent this rape. 
 
 Bas. Rape, call you it, my lord, to seize my own, 
 
 My true-betrothed love, and now my wife?" 
 
 (Act I, Scene II.) 
 In Titus Andronicus, Aaron, the Moor, reflects upon the crime 
 of rape: 
 "Aar. And many unfrequented plats there are, 
 
 Fitted by kind for rape and villainy." (Act II, Scene I.) 
 Aaron, the Moor, before his confession, says, in Titus Andronicus: 
 "Aar. I must talk of murders, rapes, and massacres, 
 Acts of black night, abominable deeds, 
 Complots of mischief, treason; villanies 
 Ruthful to hear, yet piteously perform'd." (Act V, Scene I.) 
 
KING JOHN. 223 
 
 Sec. 182. Interrogatories. — 
 
 "K. John. What earthly name to interrogatories, 
 Can task the free breath of a sacred king?" 1 
 
 "Interrogatories" were the material and pertinent ques- 
 tions, in writing, exhibited for the examination of wit- 
 nesses, or persons giving testimony in a cause. 2 Either 
 party, plaintiff or defendant, may generally exhibit orig- 
 inal or cross interrogatories to the witnesses in a cause. 3 
 But for scandal or impertinence interrogatories could, 
 under certain circumstances, be suppressed, 4 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." 5 
 
 "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. 6 
 Tithes have never obtained in the United States, but the 
 clergy is supported by the voluntary zeal of the people for 
 religion. 
 
 The despairing Lucrece, makes her complaint at Opportunity 
 that 
 
 "Wrath, envy, treason, rape, and murder's rages, 
 Thy heinous hours wait on them as their pages." (909, 910). 
 
 'King John, Act III, Scene I. 
 'Bouvier's Law Dictionary. 
 •Bacon, Abr.; Hind, Ch. Pr., 317. 
 ♦Gresley, Eq. Evid. pt. 1, ch. 3, sec. 1. 
 5 King John, Act III, Scene I. 
 •Bacon, Abr.; Cruise, Dig. 22. 
 
224 THE LAW IN SHAKESPEARE. 
 
 Sec. 184. Laws redress of wrongs. — 
 
 "Pand. There's law and warrant, lady, for my curse. 
 
 Const. And for mine too; when law can do no right, 
 Let it be lawful, that law bar no wrong : 
 Law cannot give my child his kingdom here; 
 For he, that holds his kingdom, holds the law: 
 Therefore, since law itself is perfect wrong, 
 How can the law forbid my tongue to curse." 1 
 
 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." 2 
 "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." 3 
 
 "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 Falstaffs charge of robbery in her house, 
 as follows, in V 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. 
 
 a l Bl. Comm. 44. 
 
 3 King John, Act IV, Scene III. 
 

 KING JOHN. 225 
 
 public order and decorum or a compliance with the laws. 1 
 Jn reply to the insistence of Pembroke to "Cut him to 
 pieces," which would be a violation of the law and a 
 consequent disturbance of the peace, Philip enjoined upon 
 them that they should "keep the peace." This rejoinder 
 is not only a request to comply with the law, in legal 
 terms, but is also an apt play upon the words used by 
 Pembroke. 
 
 Sec. 186. Source of sovereign power. — 
 
 "K. John. Thus have I yielded up into your hand the 
 
 circle of my glory. 
 Pand. Take again, from this my hand, as holding of 
 
 the pope, 
 Your sovereign greatness and authority." 2 
 
 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. 
 
 1 Bacon, Abr.; 2 Bentham, 319. 
 
 2 King John, Act V, Scene I. 
 
 Bolingbroke, on taking the crown, in King Richard II, is made 
 to say: "Boling. In God's name I'll ascend the regal throne." 
 (Act IV, Scene I.) 
 
CHAPTER XVII. 
 
 "KING RICHARD THE SECOND." 
 
 Sec. 187. 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. Fine. 
 
 203. Repeal. 
 
 204. Covenant. 
 
 205. Breaking Laws. 
 
 206. Livery. 
 
 207. Attorneys. 
 
 208. Executors. 
 
 209. Failure to speak, in criminal case — Standing mute. 
 
 210. Signories. 
 
 211. Under gage. 
 
 212. Day of trial. 
 
 213. Answer. 
 
 214. Crimes. 
 
 215. Manors. 
 
 216. Conspiracy. 
 
 Sec. 187. Appellant.— 
 
 "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." 1 
 
 1 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. 1 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." 2 
 
 The accuser is one who makes a criminal charge or 
 accusation against another, 3 and the accused is one against 
 whom such charge or accusation is made. 4 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,) 
 
 1 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.) 
 2 King Richard II, Act I, Scene I. 
 3 Bouvier's Law Dictionary. 
 4 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." 1 
 
 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. 2 The term is also 
 used when applied to the kind of evidence which destroys 
 the credibility of a witness in a cause on trial. 3 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. — 
 
 "J£. 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." 4 
 
 1 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: 
 "York. 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: "Son. . . my good uncle Gloster told me, the king, 
 provok'd to it, by the queen, devis'd impeachments, to imprison 
 him." (Act II, Scene II.) 
 
 ♦King Richard II, Act I, Scene III. 
 
RICHARD THE SECOND. 229 
 
 One is said to "depose," when he testifies under oath, 
 or gives his deposition. 1 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 off his chains of bondage and embrace 
 His golden uncontroll'd enfranchisement, 
 More than my dancing soul doth celebrate 
 This feast of battle with mine* adversary. 
 
 l 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." 1 
 
 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. 2 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, 3 so that 
 his heirs were cut off from inheriting from him, and all 
 his posterity was made base and ignoble. 4 
 
 1 King Richard II, Act I, Scene III. 
 
 2 1 Hale, Hist. Com. Law, 188. 
 
 •3 Bl. Comm. 337; 4 Bl. Comm. 346. 
 
 4 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: 
 
 "7er. 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: 
 
 "GZo. 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." 1 
 
 A party-verdict, is used in the sense of a partial verdict, 
 no doubt, which is the special verdict on one charge or 
 
 Hor. Hold, Peter, hold; I confess, I confess treason. (Dies.) 
 York. Take away his weapon: — Fellow, thank God, and the 
 
 good wine in thy master's way. 
 Peter. God: Have I overcome mine enemies in this presence? 
 
 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. 
 Alb. Which is that adversary? 
 
 Edg. What's he that speaks for Edmund earl of Gloster 
 Edm. Himself; — What say'st thou to him? 
 
 Edg. Draw thy sword 
 
 Edm. In wisdom, I should ask thy name; 
 
 But, since thy outside looks so fair and warlike, 
 
 And that thy tongue some'say of breeding breathes, 
 
 What safe and nicely I might well delay 
 
 By rule of knighthood, I disdain and spurn." 
 
 (Act V, Scene III.) 
 By the rule of knighthood, referred to, if the adversary was 
 BOt 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. 1 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." 2 
 
 A reversion is the residue of an estate in lands, to com- 
 mence in possession after the determination of a prior 
 
 i Arch. Cr. PI. & Evid. 146, 147. 
 
 Vernon decided in favor of the white rose, in the controversy 
 between Somerset and Richard Plantagenet, in 1* Henry VI, as 
 follows: "Ver. Then, for the truth and plainness of the case, 
 I pluck this pale and maiden blossom here, Giving my verdict 
 on the white rose side." (Act II, Scene IV.) 
 
 Richard Plantagenet, in 1' Henry VI, speaking of the trouble 
 between Gloster and the Bishop of Winchester, said: "Plan. 
 Plantagenet, I see, must hold his tongue, lest it be said, Speak, 
 sirrah, when you should; Must your bold 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. I'st 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. 1 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. 2 
 
 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." 3 
 
 Waste is any damage or act which injures the inherit- 
 ance of real estate done by a tenant for life or years, to the 
 
 1 Tiedeman, R. P. (3d ed.), sec. 291. 
 
 2 2 Bl. Comm. 175; 4 Kent's Comm. 349. 
 
 In King Richard II, the Queen said to Bushy: 
 "Queen. 'Tis nothing less: conceit is still deriv'd 
 From some forefather grief; mine is not so; 
 For nothing hath begot my something grief; 
 Or something hath the nothing that I grieve; 
 'Tis in reversion that I do possess." (Act II, Scene II.) 
 Douglas said to Hotspur, in 1' Henry IV: "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." 1 
 
 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. 2 
 
 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. 3 
 
 This class of evidence is subject, of course, to certain 
 
 1 Richard II, Act II, Scene I. 
 
 2 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. 
 
 8 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." 4 
 4 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. 1 A tenant who cuts 
 down trees, without the consent of his landlord, or re- 
 versioner, 2 or one who opens mines, 3 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." 4 
 
 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. 5 
 
 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, 
 
 1 Tiedeman, R. P. (3d ed.). 
 2 Tiedeman, R. P. (3d ed.). 
 'White, Mines & Mining Remedies. 
 
 4 Richard II, Act II, Scene I. 
 
 5 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." 1 
 
 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. 2 
 
 A tenement in the law of real property, is anything of a 
 permanent nature, which may be holden, as a house or 
 homestead. 3 
 
 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." 4 
 
 A possessor, in the law of real property, is one who 
 holds, detains or enjoys such property under a claim there- 
 
 1 Richard II, Act II, Scene I. 
 
 a 5 Coke, 23b; Coke, Litt. 57, a. 
 
 3 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 fulflll'd 
 With men's abuses; those proud lords to blame 
 Make weak-made women tenants to their shame." 
 
 (1257, 1260.) 
 •Richard II, Act II, Scene I. 
 
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." 1 
 
 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?" 2 
 
 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, 3 reserved, by way of a rental, by the owner of 
 the land for permitting another to use and enjoy it 4 
 
 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 
 subjects, which would give the heir a right of inheritance. 
 
 l 2 Bl. Comm. 116. 
 
 2 King Richard II, Act II, Scene I. 
 
 3 White, Mines and Mining Remedies, Chapter 12. 
 
 4 Ante idem. Coke, Litt. 46b; 202a; Tiedeman, R. P. (3d ed.), 
 Sees. 145, 149. 
 
 Speaking, to King Richard II, of the object of Bolingbroke's 
 return, the Earl of Northumberland, said: 
 "North. His coming hither hath no further scope, 
 Than for his lineal royalties, and to beg, 
 Enfranchisement immediate on his knees." 
 
 (Act III Scene III.) 
 
238 THE LAW IN SHAKESPEARE. 
 
 Sec. 199. — Attorneys-General. — 
 
 "York. ... If you do wrongfully seize Hereford's 
 rights, 
 Call in the letters-patents that he hath 
 By his attorneys-general to sue 
 His livery, and deny his offer'd homage, 
 You pluck a thousand dangers on your head." 1 
 
 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. 2 
 The King, at English law, is the Lord paramount in whom 
 abides the superior title to land and all citizens hold under 
 him, in legal contemplation, in their estates, or owner- 
 ship. 3 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. 4 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 
 
 1 King Richard II, Act II, Scene I. 
 
 2 Bouvier's Law Dictionary. 
 
 3 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. 1 
 
 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." 2 
 
 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. 3 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. 
 
 1 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.) 
 
 2 King Richard II, Act II, Scene I. 
 
 3 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." 1 
 
 In the criminal law, a fine is any pecuniary punishment 
 imposed by a lawful tribunal, upon a person convicted of 
 some crime or misdemeanor. 2 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. 3 
 
 Sec. 203. Repeal.— 
 
 "Green. . . . The banish'd Bolingbroke repeals him- 
 self, 
 And with uplifted arms is safe arriv'd 
 At Ravenspurg." 4 
 
 A repeal is the abrogation or destruction of a law or 
 decree by a competent authority. 5 When a law is re- 
 pealed it leaves all the civil rights of the parties the same 
 
 'King Richard II, Act II, Scene I. 
 
 2 Bacon, Abr. Pines 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.) 
 
 4 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, 1 hence, the 
 inference here is that Bolingbroke, by force of his own 
 will and with strong arms had repealed the decree of 
 banishment, and set aside the order for his banishment, 
 by virtue of a power above that of the king's. 
 
 Sec. 204. Covenant. — 
 
 "Boling. . . . My heart this covenant makes, my 
 hand thus seals it." 2 
 
 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. 3 
 
 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. 4 
 
 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." 5 
 
 This respect for the law, shown by the duke of York, 
 is worthy the emulation of the most respected citizens, for 
 
 1 Bacon, Abr. ( Statute, D. ) 
 
 2 King Richard II, Act II, Scene III. 
 
 3 Bacon, Abr. Covenant, B; Rawle, Cov. 364; 4 Kent's Comm. 
 473. 
 
 4 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 Prance; Agree to 
 any covenants." (Act V, Scene V.) 
 
 5 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. 1 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." 2 
 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. 3 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. 4 Bolingbroke com- 
 
 »J 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 V 
 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. 
 
 3 2 Bl. Comm. 68. 
 
 4 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." 1 
 
 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. 2 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." 3 
 
 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." 
 
 a King Richard II, Act II, Scene III. 
 
 2 Spellman, Gloss; Bacon, Abr. Attorney. 
 
 'Coke, Litt. 52 a. 
 
 Referring to the wordy abuse of Queen Margaret, after the 
 death of her sons, Queen Elizabeth observed, in King Richard III: 
 "Q. Eliz. Windy attorneys to their client woes, 
 Airy succeeders of intestate joys, 
 Poor breathing orators of miseries." (Act IV, Scene IV.) 
 
 In attempting to woo his own niece, through her mother, 
 Richard III said to her mother: "K. Rich. Therefore, dear 
 
244 THE LAW IN SHAKESPEARE. 
 
 Sec. 208. Executors. — 
 
 "K. Rich. . . . 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." 1 
 
 An executor is one to whom another commits by his last 
 will, the execution of his will and testament. 2 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." 3 
 
 This line no doubt refers to the ancient practice at the 
 common law, when a prisoner charged with treason, lar- 
 
 mother, (I must call you so,) Be the attorney of my love to 
 her." (Act IV, Scene IV.) 
 
 Stanley thus greets Richmond, in King Richard III: "Stan. 
 I, by attorney, bless thee from thy mother, Who prays continually 
 for Richmond's good." (Act V, Scene III.) 
 
 1 King Richard II, Act III, Scene IV. 
 
 2 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.) 
 
 3 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 was placed upon him 
 and thus he was so pressed without food, except bread 
 and water, he either died, or answered to the charge 
 against him. 1 
 
 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." 
 
 1 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." 1 
 
 Signories is here used in the sense of the land or terri- 
 tory over which the lord holds jurisdiction, by virtue of 
 his recognition as the owner of such land, by his sover- 
 
 or by "visitation of God," and, if the latter, the trial proceeded; 
 but, if the former, the culprit was pressed to death, by a heavy 
 weight, if he or she continued to stand mute. 
 
 Many cases are reported where this barbarous treatment was 
 accorded defendants who refused to plead. Margaret Clitherow, 
 a married woman, under a felony charge, who refused to plead, 
 was pressed to death, at York, on Lady Day, March 25th, 1586, 
 She was given different opportunities to plead but persisting in 
 her stubbornness, was disrobed and placed on her back and a 
 heavy door was placed upon her, with weights, which broke her 
 ribs and mashed her to death. 
 
 Major Strangeways arraigned, in 1658, for the murder of his 
 brother-in-law, refused to plead, to avoid forfeiture of his estate 
 on his conviction. The weight was placed upon him angle-wise 
 and not being sufficient to kill him outright, the bystanders added 
 their weight and ehded his misery. 
 
 In 1726, a man named Burnworth, refused to plead to the 
 charge of murder, but after being press'd for an hour or so, with 
 four hundred weight of iron, he recanted and entered his plea 
 and was convicted and hanged. This practice was called peine 
 forte et dure. The punishment was established during the reign 
 of Henry IV, in the 15th century and continued until 1772, when 
 by statute, (12 Geo. Ill, c. 20.) standing mute in felony was made 
 equivalent to a conviction. But in 1827, by statute, (7 and 8 
 Geo. IV, c. 28) a plea of not guilty was entered for one standing 
 mute, for any cause, and this more humane practice continues to 
 the present day. 
 
 (See article by Francis Watt, The Law's Lumber Room, pub- 
 lished by John Lane, London, also in 14 Law Notes, pp. 31, 33, 
 for May 10th, 1910.) 
 
 "King Richard II, Act IV, Scene I. 
 
RICHARD THE SECOND. 247 
 
 eign. 1 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." 2 
 
 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. 3 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." 4 
 
 A trial is the examination, before a competent tribunal, 
 according to law, of the facts put in issue in a cause, for 
 
 1 2 Bl. Comm. 438. 
 
 Westmoreland replies to Lord Mowbray, in 2' Henry IV, as fol- 
 lows: "West. . . . Were you not restor'd to all the duke of 
 Norfolk's signories, your noble and right well remember'd fa- 
 ther?" (Act IV, Scene I.) 
 
 2 King Richard II, Act IV, Scene I. 
 
 3 Granville, lib. 10, c. 6. 
 
 4 King Richard II, Act IV, Scene I. 
 
248 THE LAW IN SHAKESPEARE. 
 
 the purpose of determining such issue or issues. 1 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. 2 
 
 Sec. 213. Answer. — 
 
 "Boling. Lords, you that are here under our arrest, 
 Procure your sureties for your days of answer." 3 
 
 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. 4 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." 5 
 
 A crime is a wrongful act which the Government 
 notices and punishes because it is injurious to the public. 8 
 
 *9 Coke, 30; 3 Bl. Comm. 331; 3 Bl. Comm. 333. 
 
 2 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.) 
 
 3 King Richard II, Act IV, Scene I. 
 *2 Brown, Civ. Law, 371n. 
 
 5 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. 1 
 
 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." 2 
 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. 3 
 
 i 4 Bl. Comm. 4. 
 
 Gloster is made to say to the Bishop of Winchester, in 1' 
 Henry VI: 
 
 "Glo. The manner of thy vile outrageous crimes, 
 That therefore I have forg'd, or am not able 
 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.) 
 
 2 King Richard II, Act IV, Scene I. 
 
 3 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?" 1 
 
 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. 2 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.) 
 
 J King Richard II, Act V, Scene II. 
 3 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 3' Henry VI: "York. Henry 
 of Lancaster, resign thy crown:— What mutter you, or what con- 
 spire you, lords?" (Act I, Scene I.) 
 
 On the entering of the conspirators, in Julius Casar, Brutus 
 said : 
 
RICHARD THE SECOND. 251 
 
 'Bru. 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 affibility; 
 
 For if thou path thy native semblance on, 
 
 Not Erebus itself were dim enough 
 
 To hide thee from prevention." (Act II, Scene I.) 
 
 Octavius Caesar tells Cassius, before the battle of Philippi: 
 'Oct. I draw a sword against conspirators; 
 
 When think you that the sword goes up again? — 
 Never, till Caesar'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." 1 
 
 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." 2 
 
 1 V Henry IV, Act I, Scene I. 
 
 'Rolfe's First part of King Henry IV, p. 164, notes. 
 
 (252) 
 
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." 1 
 
 In the present day, when people are so much concerned 
 about the "law's delay," 2 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. 
 
 1 1* Henry IV, Act I, Scene II. 
 
 2 See Article "The Law's Delay," by Hon. Frank B. Kellogg, pub- 
 lished in "Comment," a legal publication, p. 126, for October, 1909. 
 
254 THE LAW IN SHAKESPEARE. 
 
 Sec. 219. "Peaching" on accomplices. — 
 
 "Fal Go, hang thyself in thy own heir-apparent gar- 
 ters: If I be ta'en I'll peach for this." 1 
 
 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.) 
 
 Complaining of the delay in securing his divorce, from Kath- 
 erine, King Henry VIII, said: "K. Hen. These cardinals trifle 
 with me: I abhor the dilatory sloth, and tricks of Rome." (Act 
 II, Scene IV.) 
 
 Cardinal Campeius, in King Henry VIII, urged speedy trial 
 and argument of the divorce suit, between Henry and Catherine, 
 as follows: "Cam. And that, without delay, their arguments, 
 Be now produc'd and heard." (Act II, Scene IV.) 
 
 Speaking of the delayed justice of the Gods, in Antony and 
 Cleopatra, Menecrates is made to say, to Pompey: 
 "Mene. Know, worthy Pompey, 
 
 That what they do delay, they not deny. 
 Pom. Whiles* we are suitors to their throne, decays 
 
 The thing we sue for." (Act II, Scene I.) 
 
 In King Lear, Albany speaks of the "nether crimes," that can 
 "so speedily" be venged. (Act IV, Scene II.) 
 
 The King, in Hamlet, speaks of the law's delays as follows: 
 "We should do when we would; for this would changes, 
 And hath abatements and delays as many, 
 As there are tongues, are hands are accidents." 
 
 (Act IV, Scene VII.) 
 *1' Henry IV, Act II, Scene II. 
 
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. 1 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." 2 
 
 A grand juror, in the time of Elizabeth, had to be pos- 
 sessed of a freehold estate, of the yearly value of four 
 pounds 3 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. 4 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. 5 "Jure" is the Latin word for "right," 
 and Falstaff's play upon the word, meaning that he'd 
 
 a The above line is the illustration, used by Mr. Webster, by 
 way of illustration of the meaning of the term defined in his 
 dictionary. 
 
 2 1' Henry IV, Act II, Scene II. 
 
 3 V Reeve's History Eng. Law. 
 
 4 Doctor Rolfe thinks he intentionally misunderstood the trav- 
 elers when they said "we are undone, we and ours forever," but 
 this is not apparently borne out by the language or context of 
 the reply by Falstaff. (Rolfe's 1' part of King Henry IV, p. 191.) 
 
 '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." 1 
 
 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." 2 
 
 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?" 3 
 
 That the above colloquy has reference to the common 
 law contract of apprenticeship, there can be no doubt. By 
 
 1 V Henry IV, Act II, Scene IV. 
 
 2 Ram, on Facts, (Am. Ed.) p. 270. 
 "I* 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. 1 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. 2 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. 3 
 
 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. 
 
 1 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's 
 History Eng. Law, p. 129.) 
 
258 THE LAW IN SHAKESPEARE. 
 
 Sec. 223. Arrest upon "hue and cry." — 
 
 "Sher. First, pardon me, my lord. A hue and cry hath 
 followed certain men unto this house." 1 
 
 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. 2 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. 3 
 
 The offense committed here, i. e., that of robbery, was 
 the first offense mentioned in the statute wherein arresi 
 upon "hue and cry" was authorized. 4 
 
 Sec. 224. Robbery.— 
 
 "Sher. I will, my lord: There are two gentlemen have 
 in this robbery lost three hundred marks. 
 
 1 r Henry IV, Act II, Scene IV. 
 
 2 2 Hale, 100. 
 
 3 Wood, Inst., 370-373. 
 
 4 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." 1 
 
 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. 2 At the com- 
 mon law, robbery was therefore, the larceny from the per- 
 son, accomplished by putting the person robbed in fear 
 of violence. 3 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." 4 
 
 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 V Henry IV, Act II, Scene IV. 
 
 2 4 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: 
 u Ch. Jus. He that was in question for the robbery? 
 Atten. He, my lord; but he hath since done good service at 
 Shrewsbury," etc. (Act I, Scene III.) 
 
 In the XXXVI' Sonnet, after confessing that the plea of sen- 
 suality is properly urged against himself, the Poet said: 
 "That I an accessary needs must be 
 
 To that sweet thief which sourly robs from me." (13, 14.) 
 The Poet forgives the "gentle thief" who steals his strength 
 through sensuality, in the XL' Sonnet, in these lines: 
 "I do forgive thy robbery, gentle thief, 
 Although thou steal thee all my poverty." (9, 10.) 
 
 4 1' Henry IV, Act III, Scene I. 
 
tt 
 
 260 THE LAW IN SHAKESPEARE. 
 
 is made and marked as the original. 1 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." 2 
 
 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. 3 
 
 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. 4 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, "EnfefFd himself to popularity." 
 
 ^ouvier's Law Dictionary; Lawson on Con. (2d ed.) 415. 
 2 1* Henry IV, Act III, Scene II. 
 3 Tiedeman, R. P. (3d ed) Sees. 24, 536. 
 4 1 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. TJede- 
 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." 1 
 
 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. 2 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. 3 
 
 Sec. 228. Factor.— Broker.— 
 
 "P. Hen. . Percy is but my factor, good my lord, 
 To engross up glorious deeds on my behalf; 
 And I will call him to so strict account, 
 That he shall render every glory up." 4 
 
 A factor is an agent, employed to sell goods or mer- 
 chandise for his principal, for a compensation, commonly 
 called factorage or commission. 5 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. 6 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. 
 
 2 Bouvier's Law Dictionary 
 
 3 2 Kent's Comm. 50; 7 Coke, 25 a. Of course the disability of 
 aliens is removed by treaty with the United States and by most 
 of the different states in this country, by statute. 
 
 *V Henry IV, Act III, Scene II. 
 
 5 Story, Agency, sec. 268; Paley, Agency, 243. 
 
 6 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." 1 
 
 "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. 2 
 
 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.) 
 
 Iachimo, in Cymbeline, refers to himself, in his talk with 
 Imogen, in falsely reporting a purchase for the Emperor, wherein 
 he had acted as "the factor for the rest." (Act I, Scene VII.) 
 
 Polonius tells Ophelia, in Hamlet: 
 ''Pol. . . In few, Ophelia, 
 
 Do not believe his vows: for they are brokers, 
 Not of that die which their investments show, 
 But mere implorators of unholy suits, 
 Breathing like sanctified and pious bonds, 
 The better to beguile." (Act I, Scene HI.) 
 
 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 1' Henry IV, Act IV, Scene I. 
 
 2 Chitty, Cr. Law, 244; Sherwood Cr. Law, Ch. 23. 
 
FIRST HENRY THE FOURTH. 263 
 
 is enlarged upon by Hotspur, as likening him to ''a very 
 limb lopp'd off." 
 
 Sec. 230. Reprisal.— 
 
 "Hot. ... I am on fire, 
 
 To hear his rich reprisal is so nigh." 1 
 
 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. 2 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. 3 
 
 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." 4 
 
 In the criminal law, a counterfeit is something made 
 false, in the semblance of that which is true. 5 To make 
 
 Cade thus refers to the kingdom, in 2' Henry VI: "Cade. . -. 
 thereby is England maimed, and fain to go with a staff," etc. 
 (Act IV, Scene II.) 
 
 The earl of Surrey, tells Cardinal Wolsey, in King Henry VIII : 
 "Sur. First, that, without the king's assent or knowledge, you 
 wrought to be a legate; by which power, you maim'd the juris- 
 diction of all bishops." (Act III, Scene II.) 
 
 Upon being assaulted by Iago, in Othello, Roderigo cries: "I 
 am maim'd forever: — Help, ho." (Act V, Scene I.) 
 
 1 V Henry IV, Act IV, Scene I. 
 
 2 1 Bl. Comm. c. 7. 
 
 3 Wheaton, Int. Law; 2 Vattel, Law Nations, sec. 342. 
 
 *V Henry IV, Act V, Scene IV. 
 
 6 Viner, Abr. Counterfeit. 
 
264 THE LAW IN SHAKESPEARE. 
 
 something counterfeit always implies a fraudulent intent, 
 which of course is a necessary ingredient of every criminal 
 act. The distinction noted by Falstaff is based upon the 
 very essential definition of a criminal counterfeit, for a 
 live man would not bear the same semblance as a dead 
 man, as the essential of life would be present and only a 
 dead man could be a true counterfeit of one without life, 
 in the true sense of a legal counterfeit. 
 
 Prince John thus addressed the archbishop of York, in 2' 
 Henry IV: "P. John. . . . You have taken up, under the 
 counterfeited zeal of God, The subjects of his substitution, 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." 1 
 
 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. 2 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 1' Henry IV, Act V, Scene V. 
 
 2 Rolfe's First Part of King Henry IV, p. 256, notes. 
 
 Cloten says to Guiderius, in Cymbeline: 
 "Die the death: 
 
 When I have slain thee with my proper hand, 
 I'll follow those that even now fled hence." 
 
 (Act IV, Scene II.) 
 
CHAPTER XIX. 
 
 "SECOND PART OF KING HENRY THE FOURTH." 
 
 Sec. 233. Accomplices. 
 
 234. Assurance — Security. 
 
 235. Punishment by the stocks. 
 
 236. Infamy. 
 
 237. Laws of Land-service. 
 
 238. Action. 
 
 239. Eating flesh contrary to law. 
 
 240. "Faitors." 
 
 241. Inns of Court. 
 
 242. A "rotten case" — No Counsel in. 
 
 243. Riot. 
 
 244. "A friend i' the Court." 
 
 245. Commitment for Contempt of Court. 
 
 246. Law no respector of persons. 
 
 247. Falstaff's Commitment to prison. 
 
 Sec. 233. Accomplices. — 
 
 "Mor. The lives of all your loving complices 
 
 Lean on your health ; the which, if you give o'er 
 To stormy passion, must perforce decay." 1 
 
 An accomplice is one who is, in some way, concerned 
 in the commission of a crime, but not as principal. 2 In its 
 broader sense the term includes all persons concerned in 
 the commission of the crime, either as principals or acces- 
 sories, 3 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. 
 
 1 2' Henry IV, Act I, Scene I. 
 a l Russell, Crimes, 21. 
 3 4 Bl. Comm. 331. 
 
 A Messenger, thus greets the French Dauphin and soldiers, in 
 1' Henry VI: "Mess. Success unto our valiant general, and 
 happiness to his accomplices." (Act V, Scene II.) 
 
 (266) 
 
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. 
 
 Fal. ... To bear a gentleman in hand and then 
 stand upon security: the whoreson smooth-pates do 
 now wear nothing but high shoes and a bunch of keys 
 at their girdles ; and if a man is thorough with them, 
 in honest taking up, then they must stand upon — 
 security. I had as lief they put rats-bone in my 
 mouth, as offer to stop it with security. I looked he 
 should have sent me two and twenty yards of satin, 
 as I am a true knight, and he sends me security. 
 Well, he may sleep in security." 1 
 
 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. 2 A security is that which ren- 
 ders a matter sure or certain as an instrument which 
 guarantees the performance of a certain contract. 3 It is 
 used, also, to apply to a person who engages to see to the 
 performance of another's agreement 4 and this is the sense 
 in which Falstaff uses it in the above lines. 
 
 Young Clifford, thus urges his father, in 2' Henry VI: 
 "Y. Cliff. And so, to arms, victorious father, 
 
 To quell the rebels and their 'complices." (Act V, Scene I.) 
 
 Edward thus replies to Warwick, in 3' Henry VI: "K. Edw. 
 Yet, Warwick, in despite of all mischance, Of thee thyself, and 
 all thy 'complices, Edward will always bear himself as king." 
 (Act IV, Scene III.) 
 
 *2' Henry IV, Act I, Scene II. 
 3 2 Bl. Comm. 294. 
 3 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." 1 
 
 The Chief Justice here clearly threatens Falstaff with 
 the punishment by use of the stocks for his running away, 
 after the warrant for his arrest for the Gads-hill rob- 
 bery and Falstaff, by a covert threat, indicates to the Chief 
 Justice that if he is so punished, the Prince of Wales would 
 no doubt interfere to effectuate his escape. 
 
 "Stocks" was an apparatus of wood, much used, in 
 former times, for the punishment of offenders against the 
 English laws. The culprit was placed on a bench with his 
 feet fastened in holes, under a movable board and he was 
 allowed to remain there according to the severity of the 
 punishment desired to be inflicted. In 1350, (25 Edw. 
 Ill) provision was made for application of the stocks to 
 unruly artificers and in 1376 the Commons prayed the 
 King to establish stocks in every village in the kingdom. 
 It became a common method of punishment about the time 
 of the Poet and was used in conjunction with the whip- 
 ping post, frequently, about that period, for the punish- 
 ment of such trifling offenders as Falstaff and his com- 
 panions. 2 
 
 In excusing his refusal of a loan to Timon of Athens, Lucullus 
 said to Flaminius: "Lucul. . . . thou knowest well enough, 
 although thou comest to me, that this is no time to lend money; 
 especially upon bare friendship, without security." (Act III, 
 Scene I.) 
 
 1 2' Henry IV, Act I, Scene II. 
 
 2 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.) 
 
 Corn. 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 it ill, 
 That he's so slightly valued in his messenger, 
 Should have him thus restrain'd. 
 
 Corn. I'll answer that. 
 
 Reg. My sister may receive it much more worse, 
 To have her gentleman abus'd, assaulted, 
 For following her affairs. — Put in his legs. — 
 
 (Kent is put in the stocks.)" 
 (Act II, Scene II.) 
 
 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.— 
 
 t4 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." 1 
 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. 2 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. 3 The Chief 
 Justice here accused Falstaff of leading an idle, trifling, 
 swindling, fraudulent existence, which made him an 
 infamous person, 4 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." 5 
 
 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. 
 
 2 Gilbert Evidence, 256. 
 
 3 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.) 
 
 5 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 1 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." 2 
 
 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. 3 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. 4 
 
 Sec. 239. Eating flesh contrary to law. — 
 
 "Fed. . . . 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." 5 
 
 1 Benet, Military Law; Tyler, Military Law. 
 
 2 2' Henry IV, Act II, Scene I. 
 
 3 Bracton, 98b; Coke, 2' Inst. 40; Coke, Litt. 289. 
 
 4 3 Bl. Comm. 280; 4 Bl. Comm. 283. 
 
 Falstaff persuades the Hostess to withdraw her action against 
 him, in this same play, as follows: "Fal. . . . Come, an it 
 were not for thy humors, there is not a better wench in England. 
 Go, wash thy face and draw thy action." (Act II, Scene II.) 
 
 5 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 1 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?" 2 
 
 The word "faitors," as used in an old statute of the reign 
 of Richard II, is synonymous with evil-doers? Standing 
 alone, it would seem to be a contraction of the Latin word 
 factors, meaning doers ; but by the use of the term in this 
 statute, it is probable that Shakespeare used it as a term 
 of reproach, from the preceding word used, in this same 
 connection, so he must have been familiar with this 
 statute. 
 
 Sec. 241. Inns of court. — 
 
 "Shal. He must then to the inns of court shortly: I was 
 once of Clement's-Inn ; where, I think, they will talk 
 of mad Shallow yet." 4 
 
 "Inns of Court" is the English name for those volun- 
 tary associations or societies, which have the exclusive 
 right of calling persons to the English Bar. There are 
 four such societies in London, i. e., the inner temple, the 
 middle temple, Lincoln's inn and Gray's inn, and each of 
 these inns possesses several smaller inns, — no doubt like 
 
 1 Rolfe's Second part of King Henry IV, p. 208, notes; V Reeve's 
 History Eng. Law. 
 
 5 2' Henry IV, Act II, Scene IV. 
 
 a III 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. 1 
 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. 2 
 
 1 Dugd. Or. Jur. 145. 
 
 2 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: "Shal. . . . 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." 1 
 
 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. 2 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." 3 
 
 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." 4 And on the trial of Cornwallis, 
 Lord Nottingham said, with reference to counsel: "No 
 other good reason can be given why the law refuses to 
 allow the prisoner at the bar counsel, in matters of fact, 
 where life is concerned, excepting this, that the evidence 
 by which he is condemned ought to be so very evident and 
 
 you we knew where the bona-robas were; and had the best of 
 them all at commandment." (2' Henry IV, Act III, Scene II.) 
 
 Cade gives orders to his followers: "Cade. So, sirs: — Now go 
 some and pull down the Savoy; others to the inns of court; 
 down with them all." (2' Henry VI, Act IV, Scene VII.) 
 
 1 2' Henry IV, Act IV, Scene I. 
 
 2 1 Chitty, Cr. Law, 409; 2 Hawk, c. 39. 
 
 3 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. 
 
 4 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." 1 
 
 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?" 2 
 
 A riot, at common law T , 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. 3 
 
 The King here, of course, refers to such unlawful enter- 
 prises as that at Gads-hill and other such escapades, ac- 
 complished by the Prince, Falstaff, Poins, Bardolph and 
 their companions, and the meaning is plainly to be de- 
 rived from the language used, that if, when he was so 
 careful to dissuade him from such conduct, without suc- 
 cess, what would result, when he had only his own inclina- 
 tions to follow without hindrance, with a keen desire to 
 accomplish such unlawful enterprises. 
 
 x l How. St. Tr. 149. 
 
 2 2' Henry IV, Act IV, Scene IV. 
 
 3 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 UDder 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." 1 
 
 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. 2 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." 
 
 1 2' Henry IV, Act V, Scene I. 
 
 2 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." 1 
 
 To "commit" a person, is to send him to prison by vir- 
 tue of a lawful warrant or order. 2 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. 3 
 
 *2' Henry IV, Act V, Scene II. 
 2 1 Chitty, Cr. Law, 110. 
 
 3 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." 1 
 
 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. 2 
 
 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. 
 
 3 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 Falstaff to the Fleet. 
 Take all his company along with him." 1 
 
 This is the Chief Justice's sentence against the "Fat 
 Knight," that he be taken and incarcerated in the Fleet 
 street prison, which takes its name from the river Fleet, 
 that flows by it, and upon which a gate of the prison 
 opened. 2 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. 3 
 
 1 2' Henry IV, Act V, Scene V. 
 a Rolfe's 2' Henry IV, pp. 254, 255, 
 3 Ante idem. 
 
CHAPTER XX. 
 
 "KING HENRY THE FIFTH." 
 
 Sec. 248. Seditious and insurrectionary bills. 
 
 249. Bills against Ecclesiastics. 
 
 250. Henry the Fifth's favor toward Ecclesiastics. 
 
 251. Salic Law and Henry the Fifth's Claim to France. 
 
 252. Lex terra salica explained. 
 
 253. Ancestor. 
 
 254. Impounding strays. 
 
 255. Departments of Government working harmoniously. 
 
 256. Adultery. 
 
 257. Capital crimes. 
 
 258. Motive for crime. 
 
 259. Money paid in earnest. 
 
 260. Divesting property rights. 
 
 261. Respondeat superior not applicable to King and subject. 
 
 262. Bearing testimony. 
 
 263. Martial Law. 
 
 Sec. 248. Seditious and insurrectionary bills. — 
 
 "Cant. My lord, I'll tell you,— that self bill is urg'd, 
 Which, in the eleventh year o' the last king's reign, 
 Was like, and had indeed against us passed, 
 But that the scrambling and unquiet time 
 Did push it out of further question." 1 
 
 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." 2 The lords and commons presented a peti- 
 tion to the king, stating that the secretaries excited the 
 
 1 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. 1 
 
 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." 2 
 
 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) 3 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. 
 
 2 Henry V, Act I, Scene I. 
 
 3 III 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." 1 
 
 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." 2 
 
 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 
 
 J 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.) 
 
 2 Henry V, Act I, Scene I. 
 
HENRY THE FIFTH. 283 
 
 the Lollards." 1 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. 2 
 
 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." 3 
 
 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- 
 
 1 III Reeve's History Eng. Law, p. 452. 
 2 III Reeve's History Eng. Law, p. 453. 
 8 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. 1 
 
 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 terram 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, 
 
 Established 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 ; 
 
 1 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." x 
 
 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, 2 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." 3 
 
 1 Henry V, Act I, Scene II. 
 
 2 Apophthegms, No. 184. 
 
 Mr. Davis, in his Law in Shakespeare, observes, in regard to 
 the law Salique: "It was decreed by Pharamond and was part of 
 the code of the law of the Salians, a people of Germany," (Page 
 184) but history rather leads to the conclusion the Poet makes 
 the Archbishop reach, that "Pharamond" was "idly suppos'd the 
 founder of this law." 
 
 8 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. 1 
 
 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, 2 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." 3 
 
 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. 4 
 
 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. 5 
 
 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. 
 
 1 2 Bl. Com. 201. 
 
 2 Bacon, Abr.; 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 hids you then resign 
 your crown and kingdom indirectly held from him, the native 
 and true challenger." (Act II, Scene IV.) 
 
 3 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." 
 6 3 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." x 
 
 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. 2 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. 3 
 
 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. ... Lord: here's corporal Nym's — now 
 we shall have wilful adultery and murder commit- 
 ted. Good lieutenant Bardolph, — good corporal, offer 
 nothing here." 4 
 Adultery is the voluntary sexual intercourse of a mar- 
 ried person with another, other than the offender's hus- 
 
 I Henry V, Act I, Scene II. 
 
 I I 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. 1 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. 2 The crime was not an indicta- 
 ble offense, at common law, but is made so by statute. 3 
 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. Ren. . . ' . 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?" 4 
 
 A "capital crime" at common law, was one for which 
 the punishment of death was inflicted. 5 Treason was such 
 a crime, and this reference, by trie 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 
 
 1 Bishop, Marriage and Div., sec. 415. 
 2 Bouvier's Law Dictionary. 
 
 3 4 Bl. Comm. 65. 
 
 Maecenas tells Octavia, in Antony and Cleopatra: "Maec. Each 
 heart in Rome doth love and pity you: Only the adulterous An- 
 tony, most large in his abominations, turns you off." (Act III. 
 Scene VI.) 
 
 4 Henry V, Act II, Scene II. 
 
 5 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." 1 
 
 "Motive" is the inducement, cause or reason why a 
 given act is done. 2 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.) 
 
 1 Henry V, Act II, Scene II. 
 
 2 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. 1 
 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." 2 
 
 Money paid in "earnest," is a partial payment for the 
 purpose of binding the bargain. 3 Certain agreements for 
 the sale of personal property are not legal unless some- 
 thing in "earnest" is given to bind the contract, 4 and a 
 payment of "earnest" gives the buyer the right to demand 
 a performance of the contract. 5 
 
 The King here speaks of his own death as the consid- 
 eration for which the payment was made and after the 
 conspirators had "receiv'd the golden earnest" of his 
 death, they could not back down from the performance 
 of the contract and were legally bound to kill him, as they 
 had agreed to do, for the money paid them. 
 
 *1 Bishop's Cr. Law, sec. 221; 1 Chitty, Cr. Law, 233; 8 Coke, 
 146; 1 Greenleaf Evid. sec. 18; 9 Coke, 81a. 
 
 2 Henry V, Act II, Scene II. 
 
 3 2 Kent's Comm. 389. 
 
 * Benjamin, on Sales, p. 161; Tiedeman, on Sales, sec. 71. 
 8 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." 1 
 
 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. 2 
 
 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. Ren. So, if a son, that is by his father sent about 
 merchandise, do sinfully miscarry upon the sea, the 
 imputation of his wickedness, by your rule, should be 
 imposed upon his father that sent him : or if a serv- 
 ant, under his master's command, transporting a 
 sum of money, be assailed by robbers, and die in 
 many unreconciled iniquities, you may call the busi- 
 ness of the master the author of the servant's damna- 
 tion : — But this is not so : the king is not bound to 
 answer the particular endings of his soldiers, the 
 father of his son, nor the master of his servant; for 
 they purpose not their death, when they purpose 
 their services. Besides, there is no king, be his cause 
 never so spotless, if it come to the arbitrement of 
 swords, can try it out with all unspotted soldiers. 
 Some, peradventure, have on them the guilt of pre- 
 
 \ Henry V, Act II, Scene III. 
 J Bouvier's Law Dictionary. 
 
292 THE LAW IN SHAKESPEARE. 
 
 meditated and contrived murder; some, of beguiling 
 virgins with the broken seals of perjury; some, mak- 
 ing the wars their bulwark, that have before gor'd the 
 gentle bosom of peace, with pillage and robbery. 
 Now, if these men have defeated the law, and out- 
 run native punishment, though they can outstrip men, 
 they have no wings to fly from God : war is his beadle, 
 war is his vengeance ; so that here men are punished, 
 for before-breach of the kings laws, is now the kings 
 quarrel : where they 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." 1 
 
 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, 2 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." s 
 
 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 
 
 1 Henry V, Act IV, Scene I. 
 
 2 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." 1 
 
 Bearing testimony is to make a statement, as a witness, 
 under oath or affirmation, to a given state of facts. 2 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." 3 
 "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. 4 Martial law, 
 
 1 Henry V, Act IV, Scene VIII. 
 
 2 Bacon, Abr., Evidence, (A); 1 Greenleaf, Evid., sees. 98, 328. 
 
 3 Henry V, Act IV, Scene VIII. 
 
 4 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 V Henry VI, after being struck by the 
 latter: "Bas. Villain, thou know'st the law of arms is such, 
 That, who so draws a sword, 'tis present death; 
 Or else this blow should broach thy dearest blood." 
 
 (Act III, Scene IV.) 
 
294 THE LAW IN SHAKESPEARE. 
 
 in time of war, supersedes and abrogates the civil law, 
 as to those engaged in the war, hence the appeal was prop- 
 erly made here to "martial law," for the punishment of 
 an offender who was engaged in the war himself. It ex- 
 tends to the camp and its environs and to near field and 
 other operations of war and has its basis in actual neces- 
 sity and the chief military officer is the person who en- 
 forces such rules, so the King, in this instance, was the 
 proper authority to ask the punishment of Pistol from. 
 
CHAPTER XXI. 
 
 'FIRST PART OF KING HENRY THE SIXTH.' 
 
 Sec. 
 
 264. 
 
 Homicide. 
 
 
 265. 
 
 Distraining property. 
 
 
 266. 
 
 Proclamation. 
 
 
 267. 
 
 Truant in the Law. 
 
 
 268. 
 
 Brawl. 
 
 
 269. 
 
 Outlaw. 
 
 
 270. 
 
 Contract. 
 
 
 271. 
 
 Partners. 
 
 
 272. 
 
 Fighting in King's palace, or presence. 
 
 
 273. 
 
 Quid pro quo. 
 
 
 274. 
 
 Condemned woman's privilege of pregnancy. 
 
 
 275. 
 
 Compromise. 
 
 Sec. 264. Homicide. — 
 
 "Reig. Salisbury is a desperate homicide; 
 He fighteth as one weary of his life. 
 The other lords, like lions wanting food, 
 Do rush upon us as their hungry prey." 1 
 
 Homicide is the destruction of the life of a human 
 being, either by himself, or by the act, procurement or 
 culpable omission of another. 2 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. 3 
 
 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. 4 So the 
 
 1 1' Henry VI, Act I, Scene II. 
 
 2 1 Hawkins, PI. Cr. sec. 2; 2 Bishop, Cr. Law, sec. 538. 
 
 a 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." 1 
 
 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. 2 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.) 
 
 1 Henry VI, Act I, Scene III. 
 
 2 2 Bl. Comm. 6. 
 
 3 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." 1 
 
 A proclamation is the act of causing some state matters 
 to be published or made generally known. 2 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. 3 This is no doubt the 
 threat intended by the Mayor of London, in this instance, 
 in order to preserve the peace. 
 
 1 r Henry VI, Act. I, Scene III. 
 
 2 Bacon, Abr.; Buller, Nisi Pr. 226; Dane, Abr.; ch. 96a; Brooke, 
 Abr. 
 
 3 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 him a 
 paper. Flourish.) 
 
 Sold. (Reads) Edward the Fourth, by the Grace of God, etc., 
 
 (Act IV, Scene VII.) 
 
298 THE LAW IN SHAKESPEARE. 
 
 Sec. 267. Truant in the law.— 
 
 "Suff. 'Faith, I have been a truant in the law; 
 And never yet could frame my will to it; 
 And, therefore, frame the law unto my will." 1 
 
 The speaker means to convey by this phrase that he 
 had never followed the investigation of legal matters with 
 any degree of duty or timely application, but had been 
 remiss in his duties in all matters pertaining to the law. 
 In other words, that he had shirked his duty in legal mat- 
 ters, or had idled, loitered and absented himself when 
 legal matters were in issue, instead of applying himself 
 as he ought to have done. 
 
 Sec. 268. Brawl.— 
 
 "War. . . . This brawl to-day, 
 
 Grown to this faction, in the Temple garden, 
 Shall send, between the red rose and the white, 
 A thousand souls, to death and deadly night." 2 
 
 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. 3 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 1* Henry VI, Act II, Scene IV. 
 2 1' 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." 1 
 
 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. 2 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. 3 
 
 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: 
 
 "CZo. 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 Iago, 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 Iago: 
 "Iago, look with care, about the town; 
 And silence those whom this vile brawl distracted." (idem.) 
 
 1 V Henry VI, Act III, Scene I. 
 
 2 Bacon, Abr. Outlawry; 3 Bl. Comm. 283, 284. 
 
 3 Coke, Litt. 128; Bacon, Abr.; 3 Bl. Comm. 283. Outlawry in 
 civil cases, in the United States is unknown, and it is very rare 
 that one is outlawed in a criminal case. 
 
 Messala tells Brutus, in Julius Caesar: "That by proscription, 
 and bills of outlawry, Octavius, Antony and Lepidus, have put 
 to death a hundred senators." (Act IV, Scene III.) 
 
300 THE LAW IN SHAKESPEARE. 
 
 Sec. 270. Contract.— 
 
 "K. Hen. loving uncle, kind duke of Gloster, 
 How joyful am I made by this contract." 1 
 
 A contract, in law, is an agreement, upon sufficient 
 consideration to do or not to do, some particular thing. 2 
 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, 3 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. 4 
 
 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 1' Henry VI, Act III, Scene I. 
 
 2 Lawson on Contracts (2' ed.), sec. 1; 1 Parsons Con. sec. 9; 
 2 Bl. Coram. 446; 2 Kent's Comm. 449; Story, Con. sec. 1. 
 
 8 2 Bl. Comm. 443. 
 
 4 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: "K. Hen. In argu- 
 ment and proof of which contract, hear 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 HENRY 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." 1 
 
 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, 3 hence Talbot declares 
 that his vows will be "equal partners" with those of his 
 associate in arms, clearly noting this distinction, in law T , 
 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: "Olo. . . . 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 1' Henry VI, Act III, Scene II. 
 
 2 Collyer, Part. Sec. 2; 1 Lindley, Part., sees. 1, 6; Story, Part 
 sees. 23, 24. 
 8 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.) 
 
802 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." 1 
 
 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. 2 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. 3 
 
 Sec. 273. Quid pro quo. — 
 
 "Suff. Lady, wherefore talk you so? 
 
 Mar. I cry you mercy, 'tis but quid for quo/' 4 
 
 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. 5 Of 
 course the terms are used by Margaret in a jocular or 
 humorous manner. 
 
 1 1' Henry VI, Act III, Scene IV. 
 
 2 1 Reeve's History Eng. Law, 198. 
 
 8 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. 
 
 4 V Henry VI, Act V, Scene III. 
 
 5 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." 1 
 
 Joan of Arc here claimed the common law privilege, 
 which was extended in all cases, to a pregnant woman, 
 condemned to death, provided she was found to be with 
 "quick child," of having her execution delayed until the 
 birth of her child. When this plea was made prior to 
 execution, the court directed a jury of twelve matrons, 
 or discreet women, to ascertain the fact if the condemned 
 woman was "quick with child," and if the verdict was 
 that she was with quick child, the execution was stayed 
 from term to term of court, until the child was born, or 
 the woman was found to have been pretending preg- 
 nancy. 2 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. 3 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. 4 
 
 1 V Henry VI, Act V, Scene IV. 
 
 2 4 Sh. Bl. Comm. 394, 395; 1 Bishop, Cr. Proc, sees. 1322, 1324. 
 8 Reg vs. Baynton, 14 How. St. Tr. 597, 634. 
 
 4 Bouvier's Law Dictionary; 1 Chitty's Cr. Law, 760. 
 
 Chitty states that while the common law did not give a stay, 
 unless the child had quickened, the matrons, because of their 
 "gentleness of sex," usually found that the child had quickened 
 and thus avoided the execution of one of their sex, at their 
 hands. 1 Chitty, Cr. Law, 760; 3 Inst. 17; 4 Bl. Comm. 695; 1 
 Hale, P. C. 368, 369. 
 
304 THE LAW IN SHAKESPEARE. 
 
 Sec. 275. Compromise. — 
 
 "York. . . . And, now the matter grows to com- 
 promise, 
 Stand'st thou aloof upon comparison." 1 
 
 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. 3 
 
 Of course in negotiations for a compromise, if either 
 party is arbitrary, or not willing to make concessions to 
 the other, to settle the disputed matters, then no compro- 
 mise can generally be procured and this is why York 
 suggests to the French Dauphin, that he must not stand 
 "aloof upon comparison," "now the matter grows to com- 
 promise." 
 
 In an early South Carolina case, a jury of matrons stayed the 
 execution of a pregnant woman, according to this old practice. 
 State vs. Arden, 1 Bay, 487, 490. 
 
 1 1' Henry VI, Act V, Scene IV. 
 2 Bouvier's Law Dictionary. 
 3 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." 1 
 
 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 
 
 1 2' Henry VI, Act I, Scene I. 
 
 (305) 
 
306 THE LAW IN SHAKESPEARE. 
 
 agreed upon. 1 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. 2 
 
 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. 3 
 
 1 Bouvier's Law Dictionary. 
 
 2 Ante idem. 
 
 3 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 II.) 
 
 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." 1 
 
 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. 3 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. 4 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. 5 
 
 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.) 
 
 1 2' Henry VI, Act I, Scene I. 
 
 2 Tiedeman, on R. P. (3' ed.) sees. 542, 543. 
 
 8 Coke, Litt. 40b; 2 Bl. Comm. 338. 
 
 4 2 Coke, 54. 
 
 6 In other words, this deed is a contract, to which the land 
 owner would have to assent. Tiedeman, on R. P. (3' ed.) sec. 
 543. 
 
308 THE LAW IN SHAKESPEARE. 
 
 Sec. 278. Margery Jourdemayn's case. — 
 
 "Duchess. What say'st thou, man? hast thou as yet 
 conferr'd 
 With Margery Jourdain, the cunning witch, 
 With Roger Bolingbroke, the conjuror? 
 And will they undertake to do me good?" 1 
 
 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. 2 
 Afterwards, by order of the Council, they were delivered 
 to the custody of the Lord Chancellor of the Kingdom, 
 but the woman was afterwards burned at Smithfield, as 
 stated at the time in the chronicles, as well as in the play. 8 
 
 Sec. 279. Pursuivant.— 
 
 "Suff. . . . Take this fellow in, and send for his 
 master "with a pursuivant presently: — we'll hear more 
 of your matter before the king." 4 
 
 A pursuivant, from the French, poursuivant, meaning 
 a follower, was the third and lowest order of heraldic offi- 
 cers. This office was rather a probationary one, through 
 which heralds or kings-at-arms, had to pass. 5 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. 
 2 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. 
 6 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." 1 
 
 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.) 
 
 1 2' Henry VI, Act I, Scene III. 
 
310 THE LAW IN SHAKESPEARE. 
 
 individual may possess, in law and he does not occupy a 
 mere property status. 1 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. 3 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. m . .As for your spiteful false objections, 
 Prove them and I lie open to the law." 4 
 
 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 1 Hurd, Law of Freedom and Bondage, chs. 4, 5. 
 
 2 Cobb's Hist. Sketch, Ch. 1. 
 
 3 1 Hurd'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.) 
 
 4 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." 1 
 
 Rigour is here used in the sense of exactness, strictness, 
 severity or inflexibility. In other words, York demands 
 of the King that the law, in all its strictness shall be 
 enforced, without compassion or indulgence. He de- 
 mands that the King shall be firm and rigid in the 
 enforcement of the law; that no mercy be shown, but 
 that the most rugged sternness, or relentless severity shall 
 be employed in the enforcement of the law. 2 
 
 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." 3 
 
 To be "apprehended in the fact," is to be arrested on a 
 criminal charge, while in the commission of the crime. 4 
 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, 5 so the correct legal term 
 is used by the Poet. Factum, is a culpable or criminal act, 
 
 1 2' Henry VI, Act I, Scene III. 
 
 2 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.) 
 
 8 2' Henry VI, Act II, Scene I. 
 
 4 Bouvier's Law Dictionary. 
 
 •Bacon's Abr.; Bouvier's Law Dictionary. 
 
312 THE LAW IN SHAKESPEARE. 
 
 or one not lawful in itself, 1 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 ; 
 
 *2 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?" CAct 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, Richard, his only son, 
 Who, after Edward the Third's death, reign'd as king; 
 Till Henry Bolingbroke, duke of Lancaster, 
 The eldest son and heir of John of Gaunt, 
 Crown'd by the name of Henry the Fourth, 
 Seiz'd on the realm ; depos'd the rightful king ; 
 Sent his poor queen to France, from whence she came, 
 And him to Pomf 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." 1 
 
 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. 1 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. 2 
 
 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." 3 
 
 The usual practice of having the prisoner "stand forth," 
 to receive the sentence, is here adopted. Like Grotius, 4 
 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 r Greene's England, pp. 561, 564. 
 
 a 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 declara- 
 tion of the court assessing the prisoners punishment — when 
 he tells the Duchess to "receive the sentence of the law," 
 but of course the evidence of the Duchess' guilt is not estab- 
 lished as it should have been, in a court of justice, nor 
 is the offense one in magnitude sufficient to constitute 
 treason, had she been accorded a fair trial. 
 
 Sec. 286. Justification for one condemned by law. — 
 
 "Glo. Eleonor, the law, thou seest, hath judged thee; 
 I cannot justify whom the law condemns." 1 
 
 Gioster here bows in humble submission to the decree 
 of the law, in pronouncing punishment upon his wife. 
 These lines show a beautiful respect for the majesty and 
 might of law, in the abstract and this is in keeping with 
 all the references which his characters show to the man- 
 dates of the law, after the law is applied to the rights of 
 the litigants that the Poet introduces. Gioster did not 
 assume to raise his right to judge one upon whom the 
 law had already judged, or claim the prerogative to usurp 
 the judgment seat. "The law, thou see'st hath judged 
 thee." Not the King, as such, but the King, as the 
 
 Eleanor Cobham, the mistress of Humphrey, duke of Gioster, 
 became his wife in 1440 and in 1441, she with Roger Boling- 
 broke, a priest, was seized for conspiracy in a plot to encompass 
 the King's death, by sorcery. On Bolingbroke 's arrest, she fled 
 to a sanctuary, at Westminster. "Her judges found that she 
 had made a waxen image of the King and slowly melted it at a 
 fire, a process which was held to account for Henry's growing 
 weakness, both of mind and body. The Duchess was doomed to 
 penance for her crime; she was led bare-headed and bare-footed 
 in a penance-sheet through the streets of London, and then 
 thrown into prison for life." 1' Greene's England, pp. 562, 563. 
 
 1 2' Henry VI, Act II, Scene III. 
 
316 THE LAW IN SHAKESPEARE. 
 
 mouthpiece of the law, had spoken and the law was 
 higher and more sacred than the king, even; the law, 
 itself had pronounced judgment. No man should ques- 
 tion its high decrees. 
 
 In the history of the trial by battle, when females were 
 accused, their male friends or relatives, acting as justifi- 
 catory 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. 1 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?" 2 
 
 The Cardinal here, no doubt, refers to the provision of 
 Magna Charta, 3 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. 4 
 
 iHale, 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 hear 
 no malice for my death, It has done, upon the premises, but jus- 
 tice." (Act II, Scene I.) 
 
 2 2' Henry VI, Act III, Scene 1. 
 
 3 Magna Charta, C. C. 14, 29. 
 
 4 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." 1 
 
 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. 2 
 
 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." 3 
 
 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: "Glo. What: 
 think you, we are Turks, or infidels? Or that we would, against 
 the form of law, Proceed thus rashly in the villain's death?" 
 (Act III, Scene V.) 
 
 Menenius tells the tribunes of the people, after Coriolanus' sum- 
 mary condemnation: "Men. Give me leave, I'll go to him, and 
 undertake to bring him where he shall answer, by a lawful form, 
 (In peace) to his utmost peril." (Act III, Scene I.) 
 
 Cornwall, in King Lear, in ordering the arrest of Gloster, said: 
 "Corn. Pinion him like a thief, bring him before us. 
 Though well we may not pass upon his life, 
 Without the form of justice." (Act III, Scene VII.) 
 
 *2* Henry VI, Act III, Scene I. 
 
 2 2 Bl. Comm. 357; 4 Bl. Comm. 81. 
 
 3 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. 1 
 
 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. 
 
 ^oke, 3' Inst., 147, 149; 4 Bl. Comra. 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: 
 "Alciab. . . . his service done at Lacedaemon and Byzantium, 
 were a sufficient briber for his life." (Act III, Scene V.) 
 
 Caius Marcius tells Cominius, in Coriolanus: "Mar. I thank 
 you, general, But cannot make my heart consent to take a bribe 
 to pay my sword." (Act I, Scene IX.) 
 Cassius tells Brutus, in Julius Caesar: 
 "Cas. That you have wrong'd me, doth appear in this; 
 You have condemn'd the noted Lucius Pella, 
 For taking bribes here of the Sardians." (Act IV, Scene III.) 
 And Brutus replies: 
 "Bru. What, shall one of us, 
 
 That struck the foremost man in all this world, 
 But for supporting robbers; shall we now 
 Contaminate our fingers with base bribes?" 
 
 (Act IV, Scene III.) 
 In Cymbeline, Belarius observes: 
 "0, this life 
 Is nobler than attending for a check, 
 Richer than doing nothing for a bribe, 
 Prouder than rustling in unpaid-for silk." 
 
 (Act III, Scene III.) 
 
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." 1 
 
 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. 3 Restitution is a 
 legal term, meaning the return of property or money to 
 one lawfully entitled thereto. 4 
 
 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." 5 
 
 A witness is one who testifies under oath to that which 
 he knows to be true. 6 A false witness, of course, would 
 
 In Venus and Adonis, it is said: "And therefore hath she 
 bribed the Destinies, To cross the curious workmanship of 
 nature." (733, 734.) 
 
 1 2' Henry VI, Act III, Scene I. 
 
 2 1 BI. Comm. 308; 1 Kent's Comm. 254. 
 
 3 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.) 
 
 s 2' Henry VI, Act III, Scene I. 
 
 6 Bacon, Abr. Evidence; 1 Greenleaf, Evid., sees. 98, 328. 
 
320 THE. LAW IN SHAKESPEARE. 
 
 be one testifying to facts not known to be true, or to those 
 that were false. 
 
 Gloster knows the prejudice obtaining against him and 
 advises his accusers that he knows they will invent charges 
 to accomplish his overthrow and establish his guilt by 
 false witnesses. 
 
 Sec. 292. Executioner. — 
 
 "Car. . . . Say, you consent, and censure well the 
 deed, 
 And I'll provide his executioner, 
 I tender so the safety of my liege." 1 
 
 Executioner, in law, is the one who puts criminals to 
 death, according to their sentence. 2 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." 3 
 
 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.) 
 
 1 2' Henry VI, Act III, Scene I. 
 
 2 Bouvier's Law Dictionary. 
 
 King Henry tells Richard, in 3' Henry VI: "K. Hen. If mur- 
 dering innocents be executing, Why, then thou art an execu- 
 tioner." (Act V, Scene VI.) 
 
 Lady Anne tells Richard, in King Richard III: "Anne. Arise, 
 dissembler; though I wish thy death, I will not be thy execu- 
 tioner." (Act I, Scene II.) 
 
 On the approach of the murderers of Clarence, in King Rich- 
 ard III, he is made to say: "Glo. . . . But soft, here come 
 my executioners." (Act I, Scene III.) 
 
 3 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. 1 
 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. 2 
 
 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." 3 
 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. 4 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. 5 
 This is the meaning Cade gives the statute, as he con- 
 
 1 Bacon, Abr., Tenants in Common; Coke, Litt. 184b; 2 Bl. 
 Comm. 179, 191; 4 Kent's Comm. 358. 
 
 2 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, A.ct IV, 
 Scene VII.) 
 
 3 2' Henry VI, Act IV, Scene III. 
 
 4 V Reeve's History Eng. Law. 
 
 6 RolfeN? r 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." 1 
 
 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 re gal." 3 
 
 Considering the relish of Englishmen for meat, it is great 
 wonder that the Queen had any hut sick and disabled citizens, 
 during the Lenten season in view of this enforcement of the stat- 
 ute referred to. 
 
 1 2' Henry VI, Act IV, Scene VII. 
 
 2 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.) 
 
 3 2' Henry VI, Act IV, Scene VII. 
 
SECOND HENRY THE SIXTH. 323 
 
 Jurisdiction is the power to hear and determine a cause. 1 
 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. 2 
 
 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." 3 
 
 These lines contain a direct reference to the "benefit 
 of clergy," which was an exemption recognized by the 
 English law, in favor of the culprit demanding it, of the 
 death penalty imposed by the law, for the commission of 
 
 1 Bacon, Abr., Courts; Thach. Cr. Cas. 202; 6 McLean, C. C. 355. 
 
 3 Bouvier's Law Dictionary. 
 
 8 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. 1 
 
 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. 2 This 
 privilege, however, was never extended to those guilty of 
 treason, or of misdemeanors inferior to felony. 3 
 
 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. Coram, ch. 28. 
 
 3 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 by the follow- 
 ing: 
 
 "Cade. Here's a villain. 
 
 Smith. H'as a book in his pocket, with red letters in it. 
 
 Cade. Nay, then he is a conjuror. 
 
 Dick. Nay, he can make obligations and write court-hand. 
 
 Cade. I am sorry for't: the man is a proper man, on mine 
 honour; unless I find him guilty, he shall not die, — Come, hither, 
 sirrah, I must examine thee; What is thy name? 
 
 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." 1 
 
 Determining poor men's causes, was the function that 
 Lord Say complains had brought upon him the diseases 
 that he was afflicted with. A cause, is used in the sense 
 of a cause of action, which accrues to a person when a 
 wrong has been committed, or a duty violated. As one 
 of the justices in eyre of the realm, it had been the duty 
 of Lord Say to go over the kingdom, yearly, to hear the 
 causes of the subjects 2 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." 3 
 
 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 Eng. Law, p. 158. 
 
 1 2' Henry VI, Act IV, Scene VII. 
 
 2 Crabb's Eng. Law, 103-104; 3 Bl. Comm. 58. 
 
 3 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. 1 
 
 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. 2 
 
 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." 3 
 
 Bail, in practice, are those persons who become surety 
 for the appearance of a defendant, in court, at his trial 
 day. 4 
 
 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, 5 and the privilege of the 
 defendant was rendered more valuable by subsequent 
 statutes. 6 
 
 1 Cowel; Bouvier's Law Dictionary. 
 
 1 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. 
 
 :i 2' Henry VI, Act V, Scene I. 
 4 1 Chitty, 286. 
 
 8 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." 1 
 
 This dispute over the claims of York to the crown, is 
 based upon the constitutional principal, in English law, 
 that because of the interest of the public in the crown 
 and the fact that the Government could not be destroyed, 
 the king, as such, could not create a vacancy in the official 
 head of the Government, but as the law put it "the king 
 never dies." This principal, which prevented any inter- 
 regnum, 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 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. 1 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. 2 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. 
 
 1 Bracton, lib. 2, fol. 69a; 2 Hale's Hist. Com. Law, pp. 94, 
 95, 98. 
 
 2 Litt. sec. 8; Coke, Litt, lib; 2 Bl. Comixi. 209; Hale's Hist. 
 Comm. Law, c. 11. 
 
 King Henry, in his dilemma, urged that Richard II had volun- 
 tarily given up the crown to Bolingbroke, or Henry IV, and War- 
 wick raised the question, after York claimed that it was forced 
 upon him, whether or not the rights of hereditary monarchy 
 would be affected by his act, even if it had been voluntary, and 
 Exeter replied that it could not affect the rights of the next 
 heir to the crown, regardless of whether the ancestor had volun- 
 tarily or involuntarily attempted to give the crown to another. 
 This was as the law would view it. 
 
 In recognition of this constitutional principle of English law, 
 the young Prince, asks his father, in 3' Henry VI: "Prince. 
 Father, you cannot disinherit me: If you be king, why should 
 not I succeed?" (Act I, Scene I.) 
 
 Plowden shows how the death of the king causes the mere dis- 
 union of the king's natural body, from his body politic, and the 
 kingdom is demised or transferred to his successor, so the royal 
 dignity or office remains perpetual. Plowd. 117, 234. 
 
THIRD HENRY THE SIXTH. 331 
 
 K. Hen. I am content: Richard Plantagenet, 
 Enjoy the kingdom after my decease." 1 
 
 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. 2 
 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. s 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." 4 
 
 Disinheritance was the act, by which a person deprived 
 his heir of an inheritance, that the heir, without such act, 
 would have inherited. 5 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. 6 The intent to disinherit an heir, however, at com- 
 mon law, must be clearly apparent from the language of 
 
 1 3' Henry VI, Act I, Scene I. 
 
 2 9 Coke, 142 a. 
 
 3 Coke, Litt. 295; Toullier, De. Civ. Fr. 1. 3, t. 3, c. 6n, 476. 
 4 3'Henry VI, Act I, Scene I. 
 
 5 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. 1 
 
 Sec. 304. Estate-tail, upon condition.— 
 
 "K. Hen. ... I here entail 
 
 The crown to thee, and to thine heirs forever; 
 Conditionally, that here thou take an oath, 
 To cease this civil war, and, whilst I live, 
 To honour me as thy king and sovereign ; 
 And neither by treason nor hostility, 
 To seek to put me down and reign thyself." 2 
 
 King Henry here attempts to entail the crown to York 
 and his heirs, 3 conditionally, 4 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." 5 In other words, the limitation by the King, 
 lacked the very essential of an estate tail, which, instead 
 
 1 Taylor vs. Webb, supra; Gardner vs. Sheldon, Vaugh. 262; 
 Trent vs. Hanning, 7 East, 102, 103. 
 
 Queen Margaret tells the King: "Q. Mar. Thou would'st have 
 left thy dearest heart-blood there, Rather than 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.) 
 
 8 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. 
 5 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." 1 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. 2 
 
 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." 3 
 
 Parliament is the legislative branch of the English 
 Government, consisting of the king, house of lords and 
 house of commons. 4 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. 8 
 
 *Coke, Litt. 27; 2 Bl. Comm. 115. 
 
 2 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 3' Henry VI, Act II, Scene II. 
 
 4 1 Bl. Comm. 147, 157; 2 Stephen's Comm. 537. 
 "May, Imperial Parliament. 
 
334 THE LAW IN SHAKESPEARE. 
 
 Edward here charged Queen Margaret with wearing the 
 crown of England and with having dominated the king 
 to pass a law blotting out his title to the crown. 
 
 Sec. 306. Lady Grey's suit for husband's lands. — 
 
 "K. Edw. This lady's husband, Sir John Grey, was slain, 
 , His lands then seiz'd on by the conqueror : 
 Her suit is now, to repossess those lands ; 
 Which we, in justice, cannot well deny." 1 
 
 The widow Grey's claim was in the nature of that 
 enforced by the old common law writ, Cm 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. 2 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. " s 
 
 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. 4 Among the 
 ancients, concubinage was a species of marriage, and was 
 the only marriage which those who did not enjoy the jvs 
 con nubii, could contract. While recognized by law. as 
 a natural marriage, by the ancients, the status gave no 
 
 1 3' Henry VI, Act III, Scene II. 
 
 2 6 Coke, 8, 9. 
 
 3 3' Henry VI, Act III, Scene II. 
 
 4 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 
 
 Sec. 308. Richard III' an embryonic criminal. — 
 
 "Glo. . . . love foreswore me in my mother's womb: 
 And, for I should not deal in her soft laws, 
 She did corrupt frail nature with some bribe, 
 To shrink mine arm up like a wither'd shrub; 
 To make an envious mountain on my back, 
 Where sits deformity to mock my body; 
 To shape my legs of an unequal size ; 
 To disproportion me in every part, 
 Like to a chaos or an unlick'd bear-whelp, 
 That carries no impression like the dam. 
 And am I then a man to be belov'd? 
 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." 2 
 
 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 
 
 1 Code Justinian; Bouvier's Law Dictionary. 
 
 2 3' Henry VI, Act III, Scene II. 
 
336 THE LAW IN SHAKESPEARE. 
 
 characterize normal men; but owing to some peculiar 
 sickly conditions the cells have not been able to develop 
 normally — some pressure displaced them, prevented their 
 functions, and caused malformations to such a degree that 
 a hideous monstrosity was the result which otherwise 
 might h ave had a free and harmonious development." 1 
 
 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: 
 "K. 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 
 O, Jesus bless us, he is born icith 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 cateh the English crown: 
 And from that torment I will free myself, 
 Or hew my way out, with a bloody axe." 1 
 
 Tn 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." 2 
 
 Sec. 310. Crime the basis of Richard's character. — 
 
 "Glo. . . . Why, I can smile, and murder while I 
 smile ; 
 And cry, content, to that which grieves my heart; 
 And wet my cheeks with artificial tears, 
 
 1 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." 1 
 
 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." 2 
 
 Sec. 311. Elizabeth's plea of sanctuary. — 
 
 "Queen Elizab. 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 
 
 1 3' Henry VI, Act III, Scene II. 
 
 2 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 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. 1 The right of sanctuary dates from an early 
 period in English history, for Alfred, Ethelred, and all 
 subsequent Saxon kings, expressly recognized the right, 
 by their laws, and in a state of society like that among the 
 Anglo-Saxons, the immunity indulged to places of wor- 
 ship, was not only politic, but humane and necessary, as 
 well. It prevented the shedding of blood and preserved 
 the peace. Hence, we find, that from the earliest time, in 
 England, places of public worship were held in such rev- 
 erence that criminals flying thither were, during their 
 stay, allowed protection from arrest, whatever their crime 
 might be. 2 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, 3 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. 4 
 
 1 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. 
 
 2 1 Reeves's History Eng. Law, p. 198. 
 
 3 III Reeve's History Eng. Law. p. 331. 
 
 4 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 wanton ambling nymph; 
 I, that am curtaiPd 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 T, in this weak piping time of peace, 
 Have no delight to pass away the time ; 
 Unless to spy my shadow in the sun, 
 And descant on mine own deformity; 
 And therefore. — since I cannot prove a lover 
 
 (343) 
 
344 THE LAW IN SHAKESPEARE. 
 
 To entertain these fair well-spoken days, — 
 
 I am determined to prove a villain, 
 
 And hate the idle pleasures of these days." 1 
 
 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 
 
 1 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 hack 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. ... gentlemen, see, see! dead Henry's 
 wounds 
 Open their congeal'd mouths and bleed afresh." 1 
 
 "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. 2 
 
 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. 3 
 
 "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- 
 
 1 Richard III, Act I, Scene II. 
 
 8 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. lxv. 
 
 » 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. 4 
 
 "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. ' ' 5 
 
 4 White's "Legal Antiquities," p. 166. 
 
 6 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." 1 
 
 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." 2 
 
 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) 
 
 1 King Richard III, Act I, Scene II. 
 
 2 God was supposed, in the olden times, to lend assistance to 
 the innocent and a prisoner was asked, before being put upon 
 his trial, whether he would go to trial by ordeal, or by jury, i. e., 
 by God or 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." 1 
 
 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. 2 Acquittals 
 are either by introduction of the facts, after a trial, or by 
 law, because of the application of the law to the facts as 
 shown to exist. The acquittal here invoked, is, of course, 
 because of the facts as Richard claims them to exist. 
 
 Sec. 315. Accessory before the fact. — 
 
 "Glo. ... Is not the causer of the timeless deaths, 
 Of these Plantagenets, Henry and Edward, 
 As blameful as the executioner?" 3 
 
 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. 4 
 An accessory after the fact, is one who, knowing a crime 
 to be committed, receives, relieves, comforts or assists the 
 felon. 5 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. 
 
 1 King Richard III, Act I, Scene II. 
 
 2 Coke, 2' Inst., 364. 
 
 8 King Richard III, Act I, Scene II. 
 4 1 Hale, Cr. PI. 615. 
 5 4 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." 1 
 
 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. 2 
 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. 
 
 1 Bouvier's Law Dictionary. In Deutoronomy occurs the fol- 
 lowing: "Thou hast avouched the Lord this day to be thy God." 
 Deut. 26, 17. 
 
 Speaking of his contemplated charges against Cardinal Wolsey, 
 Buckingham said, in King Henry VIII: "Buck. To the king I'll 
 say't; and make my vouch as strong, as shore of rock." (Act I, 
 Scene I.) 
 
 Horatio is made to say, in Hamlet: "Hor. Before my God, I 
 might not this believe, Without the sensible and true avouch, Of 
 mine own eyes." (Act I, Scene I.) 
 
 Brabantio charged Othello with seduction of his daughter, be- 
 fore the Duke, in the following lines: 
 "Bra. I therefore vouch again, 
 
 That with some mixtures powerful o'er the blood, 
 
 Or with some dram conjur'd to this effect, 
 
 He wrought upon her." (Act I, Scene III.) 
 
 Othello tells the Senators, in regard to Desdemona accompany- 
 ing him to the wars: "Vouch with me, heaven; I therefore beg 
 it not, To please the palate of my appetite." (Act I, Scene III.) 
 
348 THE LAW IN SHAKESPEARE. 
 
 Sec. 317. Disputing with lunatic. — 
 
 "Dot. Dispute not with her, she is lunatic." 1 
 
 A lunatic, in law, is one who is without the power of 
 reasoning which is possessed by individuals in health. 2 
 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. 3 
 
 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." 4 
 
 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. 
 
 a Kmg Richard III, Act I, Scene III. 
 
 2 Coke, Litt. 247. 
 
 3 4 Coke, 124. 
 
 Lord Stanley advises Queen Elizabeth, in King Richard III: 
 "Stan. . . . Bear with her weakness, which, I think, pro- 
 ceeds, From wayward sickness, and no grounded malice." (Act 
 I, Scene III.) 
 
 4 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." 1 
 
 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. 2 
 But a willful murder is never justified because of the 
 possession of a warrant by the officer doing the killing. 3 
 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. 4 
 
 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, 
 
 1 King Richard III, Act I, Scene IV. 
 
 2 1 Bishop's Cr. Proc. 187-193. 
 
 3 1 Bishop's Cr. Proc. 206-218. 
 
 'Exodus, XX, 13. 
 
 A capital sentence, in England, has always been carried into 
 effect by warrant. 1 Bishop's New Cr. Proc, Sec. 1336. 
 
 Before commission of the murder, when they go to Gloster, for 
 the warrant, the first murderer said: "We are my lord; and 
 come to have the warrant." And he tells them: "Glo. . . . 
 I have it here about me." (Act I, Scene III.) 
 
 Menenius tells the tribunes of the people, in Coriolanus, on 
 their condemning Coriolanus, untried: "Men. Do not cry havoc, 
 where you should but hunt, with modest warrant." (Act III, 
 Scene I.) 
 
350 THE LAW IN SHAKESPEARE. 
 
 but it detects him : Tis a blushing, shame-faced 
 spirit, that mutinies in a man's bosom; it fills one 
 full of obstacles." 1 
 
 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. 2 
 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. 
 8 2 Kent's Comm. 13, ct sub. 
 
 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, he 
 said: "May he continue long in his highness' favor, and do 
 justice for truth's sake, and his conscience." (Idem.) 
 
 Speaking of the beauty of Anne Boleyn, in King Henry VIII, a 
 gentleman (?) said: "Our king has all the Indies in his arms, 
 And more, and richer, when he strains that lady: I cannot blame 
 his conscience." (Act IV, Scene I.) 
 
 Cranmer tells his peers, in the Council Chamber, in King 
 Henry VIII: "Cran. . . . That I shall clear myself, Lay all 
 the weight ye can upon my patience, I make as little doubt, as 
 you do conscience in doing daily wrongs." (Act V, Scene II.) 
 
552 THE LAW IN SHAKESPEARE. 
 
 3ec. 321. Reward.— 
 
 "I* Murd. Remember our reward, when the deed 's done, 
 2 ? Murd. Zounds, he dies ; I had forgot the reward. ' n 
 
 A reward is an offer of recompense, given by authority 
 3f law, for the performance of some act for the public 
 good, which is to be paid when the act is performed. 2 A 
 reward may be either offered by the Government, or by 
 a private person and, of course, in this instance it was 
 the latter case. 
 
 The reward was recognized, at common law, as such 
 a potent factor in its effect upon the one desirous of the 
 reward, that informers, entitled to reward, were not com- 
 petent witnesses, in actions wherein the conviction or 
 acquittal of a person, being tried, depended on the evi- 
 dence of such informer. 3 
 
 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.) 
 
 1 King Richard TIT, Act I, Scene IV. 
 
 2 4 Bl. Comm. 294. 
 
 3 1 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." 1 
 
 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- 
 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." 3 
 
 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, 4 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. 
 2 1 Bishop's Cr. Law, 223. 
 
 3 King Richard III, Act I, Scene IV. 
 
 4 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." 1 
 
 The right of sanctuary is here referred to and Buck- 
 ingham contends that the privilege or benefit of sanctuary 
 does not extend to children, but only to adults who have 
 the wit to claim the privilege. Of course this is a narrow 
 construction of the law. The right of sanctuary, at com- 
 mon law, was the right to claim exemption from service 
 of criminal or civil process while the person against whom 
 such process was addressed, was the inmate of a religious 
 house, or sanctuary. Complete immunity to the civil 
 law was afforded by this privilege. 2 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. 3 
 
 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 
 
 1 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. 1 
 
 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." 2 
 
 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. 3 This is peculiarly a law 
 term and is rarely used by others than lawyers, because 
 of its technical meaning. 
 
 'Ill 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: "Grif. . . . O father Abbot, an old man, broken 
 with the storms of state, Is come to lay his weary bones among 
 ye; give him a little earth for charity." (Act IV, Scene I.) 
 
 Aufidius is made to say in Coriolanus: 
 "Auf. . . . nor sleep, nor sanctuary, being naked, sick: nor 
 fane, nor Capitol 
 The prayers of priests, nor times of sacrifice, 
 Embarquements all of fury, shall lift up 
 Their rotten privilege and custom 'gainst 
 My hate to Marcius." (Act I, Scene IX.) 
 
 2 King Richard III, Act III, Scene I. 
 
 3 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." 1 
 
 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. 2 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. 3 
 
 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." 4 
 
 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. 
 
 2 1 Russell, Crimes, 187; 2 Kent's Comm. 69. 
 
 3 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.) 
 
 4 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 
 shalt not uncover the nakedness of thy father's brother," 1 
 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: 
 
 "<?. Eliz. What were I best to say? her father's brother 
 Would be her lord? Or shall I say, her uncle? 
 Or, he that slew her brothers and her uncles? 
 Under what title shall I woo for thee? 
 That God, the law, my honour, and her love, 
 Can make seem pleasing to her tender years?" 
 
 (Act IV, Scene IV.) 
 
358 THE LAW IN SHAKESPEARE. 
 
 What comfortable hour can'st thou name, 
 That ever grac'd me in thy company?" 1 
 
 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." 2 
 
 1 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 unavoided eye is murderous." (Act IV, Scene I.) 
 Queen Margaret taunts the Duchess of York, with having given 
 birth to such a criminal as Richard III, as follows: 
 "Q. Mar. . . . 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?" 1 
 
 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. 2 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." 3 
 After having assisted Richard to rise to the kingdom by 
 the crimes that made it possible for him to possess the 
 crown, and after he had assisted him to corrupt the foun- 
 tains of justice and trample under foot the rights of oth- 
 ers, it is a just retribution that brings Buckingham to a 
 realization of what it is to prosper by "underhand cor- 
 rupted foul injustice." It is no longer the rights of 
 
 That excellent grand tyrant of the earth, 
 
 That reigns in galled eyes of weeping souls, 
 
 Thy womb let loose, to chase us to our graves." 
 
 (Act IV, Scene IV.) 
 
 The Duchess of York, tells Richard 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 2 Bouvier's Inst., 1774, et seq. 
 
 Of course the Queen here, does not concede that Richard is the 
 lawful king, but treats his reign as a usurpation of the right to 
 the crown, hence he could not transmit such right, on his death. 
 
 3 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. 1 
 
 Sec. 331. Swords as laws. — Under Richard's reign. — 
 
 i( 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." 2 
 
 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." 
 
 1 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.) 
 
 2 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?" 1 
 
 Privity, in the law, is the mutual or successive relation- 
 ship to the same rights of property. 2 There is privity of 
 
 *King Henry VIII, Act I, Scene I. 
 1 Bouvier's Law Dictionary. 
 
 (361) 
 
362 THE LAW IN SHAKESPEARE. 
 
 contract, which is the relation existing between two con- 
 tracting parties, 1 and the privity of estate, which is the 
 relationship existing between those being interested in 
 the same lands, as landlord and tenant. 2 
 
 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/' 3 
 
 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 
 
 1 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. 1 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. 3 
 
 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 stirr'd 
 With such an agony, he sweat extremely, 
 And something spoke in choler, ill and hasty: 
 But he fell to himself again, and, sweetly, 
 In all the rest show'd a most noble patience." 4 
 
 This narration of the trial of the duke of Buckingham, 
 for treason, is the same as the histories of the trial give 
 
 1 Tiedeman, R. P. (3d ed). 
 
 2 This statute was passed during the reign of Edw. I. 
 
 8 Tiedeman, R. P. supra. 
 
 * King Henry VIII, Act II, Scene I. 
 
364 THE LAW IN SHAKESPEARE. 
 
 it. 1 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. 2 History records that the execution of 
 this Duke was obtained by the pressure of the royal 
 power, without a pretence of legal cause, 3 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. 4 
 
 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. 5 
 
 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 
 
 1 Year-Book, 13 Hen. VIII, fol. 12. 
 
 2 Ante idem. 
 
 3 Finlason's note, to IV Reeve's Hist. Eng. Law, p. 275. 
 
 4 Mackintosh's Hist. Eng., vol. II, c. 3. 
 
 5 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. 1 The 
 form of the old judgments, by default, was that the "de- 
 fendant, being called, comes not, but makes default," etc., 
 and this was an essential part of the decree. 
 
 So the Poet in the preliminaries leading up to the trial 
 of the divorce suit between Katherine and Henry VIII, 
 followed the practice obtaining then in England. 
 
 Sec. 336. Pleading cause. — 
 
 "Wol. You have here, lady, 
 
 (And of your choice,) these reverend fathers; men 
 
 Of singular integrity and learning, 
 
 Yea, the elect of the land, who are assembled 
 
 To plead your cause." 2 
 
 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. 3 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. 
 
 1 Wharton's Law Lexicon; Bouvier's Law Dictionary. 
 
 2 King Henry VIII, Act II, Scene IV. 
 
 3 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." 1 
 
 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. 2 
 
 In refusing the application for a continuance, by the 
 Queen, the Cardinals desired to subserve the will of the 
 King and rush the determination of the cause to a con- 
 clusion at that session of the court. 
 
 Sec. 338. Challenging prejudiced judge. — 
 
 "Q. Kath. . . . I do believe, 
 
 Induc'd by potent circumstances, that 
 
 In asking the right of an attorney for Queen Katherine, in 
 her divorce suit, Cardinal Wolsey, addresses the King: "Wol. 
 I know your majesty has always lov'd her, So dear in heart, not 
 to deny her that A woman of less place might ask by law, 
 Scholars, allow'd freely to argue for her." (Act II, Scene II.) 
 
 1 King Henry VIII, Act II, Scene IV. 
 2 Bouvier's Law Dictionary. 
 
 In Othello, the Moor of Venice (Act I, Scene II), the follow- 
 ing occurs: 
 "Oth. 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." 1 
 
 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. 2 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. 
 
 1 King Henry VIII, Act II, Scene IV. 
 
 2 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, 
 I' Inst., 294.) 
 
368 THE LAW IN SHAKESPEARE. 
 
 Queen Katherine denied the authority of the Cardinal to try 
 the divorce case between herself and the King, as the marriage 
 contract was both a civil contract and a spiritual rite, as viewed 
 by the Church and she did not, according to the Catholic faith, 
 recognize the right of a temporal Court, to sever the holy bonds. 
 That this contention was strongly urged in the courts and 
 many cases justified the contention, see 6 Bacon's Abr., pp. 
 454, 500. 
 
 The legislation during the reign of Henry VIII, showed a con- 
 tinuous strife and agitation against the power of the Church 
 of Rome, principally as a means of enabling the King to avoid 
 his different marriages. To cut off Catherine's appeal to Rome, 
 the statute 24 Henry VIII, c. 12, was passed rehabilitating the 
 statutes of Edward I and III and Richard II and Henry IV, 
 against foreign jurisdiction, providing, among other things, that 
 in all matrimonial causes, the same should be heard and finally 
 determined within the King's jurisdiction and authority and not 
 elsewhere, regardless of any appeals, or process from the see of 
 Rome (IV Reeve's Hist. Eng. Law, pp. 314, 315). Prior to this 
 statute, to show the legality of the Queen's appeal, in her divorce 
 suit, to the Pope of Rome, it had been decided only a few years 
 before, in this same reign, that as matrimony was a spiritual 
 rite, where a papal bull of dispensation in a marriage had been 
 pleaded, this would be given effect, and would make an other- 
 wise void marriage legal, (Year-Book, 12 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 Mothei 
 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." 1 
 
 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. 2 
 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. ... I will not tarry; no, nor ever more, 
 Upon this business, my appearance make 
 In any of their courts." 3 
 
 Appearance, in legal practice, is the coming into court, 
 of a party to a cause, whether as plaintiff or defendant. 4 
 No formality is required on the part of the plaintiff in 
 entering his appearance for the filing of the suit does this ; 
 but on the part of the defendant, more particularity is 
 required. Appearance may either be entered by person- 
 ally appearing to the action, or by entering the appear- 
 ance in a formal way, by entries of record in the court. 
 When one desires to plead to the jurisdiction of the court, 
 
 afterward espoused Catherine Howard. This latter statute was 
 to abolish the effect of the canonical decree, as this marriage was 
 forbidden by the canon law, although not by the Levitical de- 
 gree. (IV Reeve's Hist. Eng. Law, pp. 314-317; 330-335.) 
 
 1 King Henry VIII, Act II, Scene IV. 
 8 3 Chitty, Practice, 116. 
 3 King Henry VIII, Act II, Scene IV. 
 4 Bouvier's Lav/ 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. 1 A 
 married woman, when sued without her husband, at com- 
 mon law, had the right to personally appear, 2 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. Ren Unsolicited 
 
 I left no reverend person in this court ; 
 But by particular consent proceeded, 
 Under your hands and seals." 3 
 
 "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" 
 
 1 5 Watts & S., 215. 
 a l 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.) 
 
 3 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. 1 
 
 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." 2 
 
 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. 3 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." 4 
 
 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. 5 The 
 Queen's course in this divorce suit, came within the class 
 
 1 3 Coke, Inst., 169. 
 
 2 King Henry VIII, Act II, Scene IV. 
 
 3 3 Bl. Comm. 305. 
 
 4 King Henry VIII, Act II, Scene IV. 
 6 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." 1 
 
 << 
 
 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. 2 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. 
 
 1 King Henry VIII, Act II, Scene IV. 
 
 2 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 o'ertake you, 
 You'll part away disgrac'd." 1 
 
 A trial at law, is the examination, before a competent 
 tribunal, according to the laws of the land, of the facts put 
 in issue in a cause, for the purpose of determining such 
 issue. 2 The object of the threat of the Cardinal was to 
 deter the Queen from her course in insisting upon her 
 appeal to Rome, or a trial according to the forms of law, 
 and the inducement is held out that the King, because of 
 his previous regard for her, will deal more gently with 
 her than a court, influenced by him would do, and that 
 she had better avoid a trial at law, because of the result- 
 ing disgrace that would accrue to her, from this proceed- 
 ing. Of course this was a subterfuge, to assist the King 
 in his unholy inclinations. 
 
 Sec. 346. Inventory. — 
 
 "K. Hen. Forsooth, an inventory, thus importing, — 
 The several parcels of his plate, his treasure, 
 Rich stuffs and ornaments of household; which 
 I find at such proud rate, that it out-speaks 
 Possession of a subject." 3 
 
 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. 4 
 
 1 King Henry VIII, Act III, Scene I. 
 
 2 3 Bl. Comm. 333. 
 
 3 King Henry VIII, Act III, Scene II. 
 
 4 2 Bl. Comm. 514; 4 Bacon's Abr., 86. 
 
 Surrendering his earthly effects to the king, after the issuance 
 of the writ of praemunire against him, Cardinal Wolsey said, in 
 King Henry VIII: 
 "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 
 writ of praemunire, known to the law at that time. 
 
 Sec. 347. Commission for office. — 
 
 "Wol. Stay, 
 
 Where's your commission, lords? words cannot carry 
 Authority so weighty." 1 
 
 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. 2 
 
 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 Cit. . . . the leanness 
 that afflicts us, the object of our misery, is as an inventory to 
 particularize their abundance." (Act I, Scene I.) 
 
 1 King Henry VIII, Act III, Scene II. 
 3 Rutherforth, 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." 1 
 
 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. 2 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. 3 
 
 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. 
 
 1 King Henry VIII, Act III, Scene II. 
 
 'Coke, Litt. 129. 
 
 •Coke, Litt. 129; 7 Bacon's Abr., 690, 694. 
 
 As presented by the Poet, the proper form of judgment in a 
 praemunire, at the suit of the king was against the defendant, 
 "that he be out of the protection of the king; that his lands and 
 tenements, goods and chattels, shall be forfeited to the king.' 
 Coke, Litt. 129b; 3 Coke, Inst., 125, 218; 7 Bacon's Abr., p. 693. 
 
 For history of the law upon the writ of praemunire, see III 
 Reeve's Hist. Eng. Law, pp. 122, 123. 
 
376 THE LAW IN SHAKESPEARE. 
 
 Sec. 349. Decree of divorce from Katherine. — 
 
 "1 Gent. . . . The archbishop 
 
 Of Canterbury, accompanied with other 
 Learned and reverend fathers of his order, 
 Held a late court at Dunstable, six miles off 
 From Ampthill, where the princess lay ; to which 
 She oft was cited by them, but appear'd not : 
 And, to be short, for not appearance, and 
 The king's late scruple by the main assent 
 Of all these learned men she was divorc'd, 
 And the late marriage made of none effect." 1 
 
 In this verse, the Poet shows that the decree of divorce 
 from his marriage with Katherine, was by default, as she 
 failed to enter her appearance, although "she oft was 
 cited by them," and the king was thereby adjudged to 
 have never contracted a lawful marriage with her. 
 
 The basis for this judgment was the king's scruple, or 
 his conscience, which was the reason assigned why his 
 marriage was void, since it was within the Levitical degree, 
 and against the mandate of the statute. (32 Hen. VIII, 
 c. 38.) 
 
 Katherine's appeal was disallowed by the "reverend 
 fathers of his order," and by the Archbishop of Canter- 
 bury, since it w T as 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. 2 
 
 1 King Henry VIII, Act IV, Scene I. 
 3 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." 1 
 
 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. 2 
 
 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; 3 but "neither the 
 consideration of the greatness of the offense of simony, 
 nor 1 he 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- 
 serviance to the will of the King, regardless of the legality of 
 the marriage, but if the first premise had been well taken, then 
 the conclusion was right, for a contract or other act, which is 
 void, — aside from the marriage contract, which on grounds of 
 public policy will be upheld, after many years to legitimize chil- 
 dren born during the existence of the relation — is not helped by 
 lapse of time, but the maxim is, "Quod ab initio 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 as it was, in 
 fact, had the outward semblance to legality. 
 
 1 King Henry VIII, Act IV, Scene II. 
 3 Bouvier's Law Dictionary. 
 3 9 Bacon's Abr., 23. 
 
378 THE LAW IN SHAKESPEARE. 
 
 served by Matthew Bacon, in his Abridgment, 1 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." 2 
 
 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. 3 
 
 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. 4 
 
 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. 
 8 Bouvier's Law Dictionary. 
 4 3 Bl. Comm. 341. 
 
HENRY THE EIGHTH. 379 
 
 Might corrupt minds procure knaves as corrupt 
 
 To swear against you? such things have been done." 1 
 
 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, 2 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. 3 
 
 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." 4 
 
 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, 
 
 1 King Henry VIII, Act V, Scene I. 
 
 2 7 Bacon's Abr., 424-438. 
 
 3 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.) 
 
 4 King Henry VIII, Act V, Scene II. 
 
380 THE LAW IN SHAKESPEARE. 
 
 or the law of the land." 1 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, 2 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." 8 
 
 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." 4 
 
 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- 
 
 *4 Bl. Comm. 423; 2 Coke, Inst, 39. 
 
 2 The accused, by Constitution of the U. S. is entitled to be 
 confronted with the witnesses against him. U. S. Con. Art. VI. 
 8 King Henry VIII, Act V, Scene II. 
 
 In Othello, after Iago's coarse speech, Desdemona asks Cassio: 
 "How say you, Cassio: is he not a most profane and liberal 
 counsellor?" (Act II, Scene I.) 
 
 4 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." 1 
 
 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. 2 
 
 Sec. 357. £~nea! 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. 3 
 
 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. 
 
 2 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." 
 
 3 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 his 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, Men elans' queen. 
 
 With wanton Paris sleeps; And that's the quarrel." 1 
 
 "Ravished," in criminal pleading, is a technical word 
 essential, in an indictment for rape. 2 
 
 No other word will generally answer and the defendant 
 is usually charged with having "feloniously ravished," 
 the prosecutrix, or woman mentioned in the indictment. 3 
 
 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. 
 
 ^roilus and Cressida, Act I, Scene I. 
 2 5 Bacon's Abr., p. 48, et seq. 
 
 'The word implies that the act was forcible and against the 
 will. 3 Chitty's Cr. Law, 812. 
 
 (383) 
 
384 THE LAW IN SHAKESPEARE. 
 
 Sec. 359. Per se.— 
 
 "Alex. They say he is a very man, per se, 
 And stands alone." 1 
 
 "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 
 Should lift their bosoms higher than the shores, 
 And make a sop of all this solid globe : 
 Strength should be lord of imbecility, 
 And the rude son should strike his father dead : 
 Force should be right : or, rather right and wrong 
 (Between whose endless jar justice resides,) 
 Should loose their names, and so should justice too" 3 
 
 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. 
 
 2 3 Bl. Comm. 181. 
 
 3 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. 1 
 
 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." 2 
 
 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. 3 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 
 
 ^oke, 2' Inst., 56; Toullier, Droit, Civ. Pr. tit. prel. n. 5. 
 
 2 Troilus and Cressida, Act II, Scene I. 
 
 3 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 "Press- 
 gang' ? were authorized to board any merchant-vessel, in 
 any port in the world and seize British subjects, a right 
 frequently abused in different parts of the world, by Eng- 
 lish seamen. 
 
 Of course those men seized and forced to serve were 
 not usually as good seamen as the volunteers, who went 
 into the service willingly, and this is what Achilles means, 
 in the lines above quoted. 
 
 Sec. 362. Attestation. — 
 
 "Paris. . . . Bui 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." 1 
 
 Attest is here used in the sense of bearing witness 2 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. 3 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. 4 
 
 Sec. 363. Damage and indemnity of war. — 
 
 "Pri. . . . Thus one again says Nestor, from the 
 Greeks ; 
 Deliver Helen and all damage else — 
 As honour, loss of time, travel, expense, 
 Wounds, friends, and what else dear that is consumed 
 In hot digestion of this cormorant tear, — 
 Shall be struck off." 5 
 
 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. 6 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. 
 
 1 Troilus and Cressida, Act II, Scene II. 
 
 2 Rolfe's Troilus and Cressida, p. 219, notes. 
 
 3 Bouvier's Law Dictionary. 
 
 4 Tiedeman's R. P. (3d ed.). 
 
 5 Troilus and Cressida, 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." 1 
 
 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, 2 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. 3 
 
 x Troilus and Cressida, Act II, Scene II. 
 
 2 Reeve's Dom. Rel. 
 
 3 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." 1 
 
 "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." 2 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 thaf of a special privilege. 3 
 
 Sec. 366. Underwriting one. — 
 
 "A gam. . . . Disguise the holy strength of their 
 command, 
 And underwrite in a deserving kind 
 His humorous predominance." 4 
 
 To underwrite is to insure or guarantee a certain re- 
 sult, as where one underwrites or agrees that he will make 
 good a certain loss in a certain event, as an insurer. 5 
 The thought is that his "humorous predominance" shall 
 be underwritten or guaranteed. 
 
 troilus and Cressida, Act II, Scene III. 
 
 2 Heard, Libel & Slan., Sec. 89. 
 
 3 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.) 
 
 4 Troilus and Cressida, Act II, Scene III. 
 "Bouvier's Law Dictionary. 
 
390 THE LAW IN SHAKESPEARE. 
 
 Sec. 367. A kiss in fee-farm. — 
 
 "Pan. . . . Alas, the day, how loath you are to 
 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." 1 
 
 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. 2 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." 8 
 
 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 
 
 ^roilus and Cressida, Act III, Scene II. 
 2 2 Bl. Comm. 43; Cowel, Spellman, Gloss. 
 8 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. 1 
 
 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. 2 
 
 Sec. 369. Right warring with right. — 
 
 "Tro. ... virtuous fight, 
 
 When right with right wars, who shall be most 
 right?" 3 
 
 In the contests for the enforcement of right, right is 
 generally pitted against wrong, hence the anomaly of 
 right contending with right, 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." 4 
 
 1 6 Bacon's Abr., 454, et seq. 
 
 2 5 Coke, 182; Lawson Contracts (3' ed.), 405. 
 "Troilus and Cressida, Act III, Scene II. 
 ♦Troilus and Cressida, Act IV, Scene II. 
 
392 THE LAW IN SHAKESPEARE. 
 
 Cressida here denies the obligations of the relation 
 among all the different persons descending from the same 
 common stock or ancestor. Consanguinity is either col- 
 lateral or lineal, and it is the latter kind, of which the 
 Poet speaks, in this verse, for Cressida has descended from 
 her father and claims that she has forgotten him. She 
 declares that she knows "no kin, no love, no blood" . . ; 
 so near as the "sweet Troilus." 
 
 Sec. 371. Rejoinders. — 
 
 "Tro. . . . injury of chance 
 
 Puts back leave-taking, justles roughly by 
 All time of pause, rudely beguiles our lips 
 Of all rejoin dure, forcibly prevents 
 Our lock'd embrasures, strangles our dear vows 
 Even in the birth of our own laboring breath." 1 
 
 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 rejoin dure, 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. 
 
 1 Troilus and Cressida, Act IV, Scene IV. 
 
 2 Coke, Litt. 304; Archbold, Civil PI. 278. 
 
 This plea by way of rejoindure, in most of the United States 
 is now prevented and the answer of the defendant is the only 
 plea he has. 
 
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." 1 
 
 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. 2 
 
 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. 3 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. 
 
 2 3 Campb. 232. 
 
 3 2 Greenl. Evid., Sec. 678. 
 
CHAPTER XXVII. 
 
 "TIMON OF ATHENS." 
 
 Sec. 373. Pawn. 
 
 374. Death penalty for homicide. 
 
 375. Joint and corporate action. 
 
 376. Hereditary taints. 
 
 377. Pity the virtue of Law. 
 
 378. Plunging into Law. 
 
 379. Defending manslaughter. 
 
 380. Killing in self-defense. 
 
 381. Felon in irons. 
 
 382. "Law is strict." 
 
 383. A cynic's view of Law — Thievery justified. 
 
 384. Bawds not competent witnesses. 
 
 385. Pleading false titles. 
 
 386. The scope of Justice. 
 
 387. Answering public Laws. 
 
 Sec. 373. Pawn.— 
 
 "Old. Ath. Most noble lord, 
 
 Pawn me to this your honour, she is his." 1 
 
 A pledge or pawn is a bailment of personal property as 
 security for some debt or engagement. 2 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. 
 
 1 Timon of Athens, Act I, Scene I. 
 
 8 Story, Bailments, Sec. 286; Lawson, on Bailments, sec. 1. 
 
 Alcibiades thus pleads for the life of his client in Timon of 
 Athens: "Alcib. . . . And, for I know your reverend ages 
 love, security, I'll pawn my victories, all my honour to you, upon 
 his good returns." (Act 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." 1 
 
 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. 2 But the philosopher 
 reminds him that his threat was to knock out the brains 
 cf 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." 3 
 
 "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 Iachimo, 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 L) 
 
 1 Timon of Athens, Act I, Scene I. 
 
 2 Hugo's Histoire du Droit, 161. 
 
 3 Timon of Athens, Act II, Scene II. 
 
396 THE LAW IN SHAKESPEARE. 
 
 association of persons united into one legal person, or 
 corporation. 1 Flavius 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." 2 
 
 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? 3 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. 
 
 1 2 Bacon's Abr., 436. 
 
 2 Timon of Athens, Act II, Scene II. 
 
 8 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.— 
 
 "Alcib. I am an humble suitor to your virtues; 
 For pity is the virtue of the law, 
 And none but tyrants use it cruelly." 1 
 
 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, 2 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. — 
 
 "Alcib. . . . It pleases time and fortune, to lie heavy 
 Upon a friend of mine, who, in hot blood, 
 Hath stepp'd into the law, which is past depth 
 To those that, without heed, do plunge into it." 3 
 
 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. 
 
 1 Timon of Athens, Act III, Scene V. 
 2 1 Kent's Comm. 265. 
 
 The false Tamora, is made to plead for mercy, in Titus Andro- 
 nicus, as follows: 
 
 "Tam. 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.) 
 3 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 labour'd 
 To bring manslaughter into form, set quarrelling 
 - Upon the head of valour; which, indeed, 
 ' Is valour misbegot, and came into the world 
 ! When sects and factions were newly born." 1 
 
 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. 2 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. — 
 
 "Alcib. ... To kill, I grant, is sin's extremest gust, 
 But, in defense, by mercy, 'tis most just." 3 
 
 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. 4 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? 
 
 1 Timon of Athens, Act III, Scene V. 
 
 2 4 Bl. Comm. 190. 
 
 • Timon of Athens, Act III, Scene V. 
 4 1 Bl. Comm. 180; 2 Rolle, Abr., 547. 
 
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." 1 
 
 A felon is one who has been convicted and sentenced 
 for a felony, or for the higher degrees of crime. 2 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." 3 
 
 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. 4 
 
 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 
 
 1 Timon of Athens, Act III, Scene V. 
 3 Coke, Litt. 391. 
 
 3 Timon of Athens, Act III, Scene V. 
 4 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. — 
 
 u 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." 1 
 
 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. 2 
 
 1 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." 1 
 
 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 take an oath, in court. 2 
 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. 
 
 1 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." 1 
 
 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 fhTd 
 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." 2 
 
 Justice has been defined as "the constant and perpetual 
 will to render unto every man his own." 3 This generous 
 and altruistic idea of the virtue is an essential for it? 
 
 1 Timon of Athens, Act IV, Scene III. 
 
 2 Timon of Athens, Act V, Scene IV. 
 
 8 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." 1 
 
 ^imon of Athens, Act V, Scene V. 
 
404 THE LAW IN SHAKESPEARE. 
 
 Alcibiades here promises that the criminal or public 
 laws, for the redress of public wrongs within the munici- 
 pality of Athens, shall be rigorously enforced. That the 
 "stream of regular justice," shall not be interfered with, 
 but that it shall be permitted to flow as formerly and with- 
 out let or hindrance so far as he is concerned. 
 
CHAPTER XXVIII. 
 
 Sec. 
 
 
 "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. 
 
 Sec. 388. Piercing statutes. — 
 
 "1 Git. . . . 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." 1 
 
 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. 2 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- 
 
 ^oriolanus, Act I, Scene I. 
 
 'Bacon, Abr., Statutes; Coke, 2' Inst., 200; Bouvier's Law Diet. 
 
 (405) 
 
406 THE LAW IN SHAKESPEARE. 
 
 peal of a previous statute may be effected. 1 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." 2 
 
 "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 eannot escape or inflict bodily injury upon others. 3 
 
 *16 Pet. 342. 
 
 The Poet refers to "Biting Statutes" in 2' Henry VI. (Act 
 IV, Scene VII.) 
 
 a Coriolanus, Act I, Scene IX. 
 'Webster's Dictionary. 
 
 Volumnia tells Coriolanus, in her appeal for clemency, and the 
 safety of Rome: "Vol. . . . 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 Caesar'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." 1 
 
 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." 2 
 
 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. 3 
 
 One so full of sympathy for his fellow-man, that after 
 hearing his complaint, he would be so moved as to always 
 favor the one first heard, would be so emotional and so 
 loyal to his first impulses, as to be more or less "imper- 
 fect," in this particular, as the Poet here intimates. 
 
 Sec. 392. Bencher.— 
 
 "Bru. Come, come, you are well understood to be a per- 
 fecter giber for the table, than a necessary bencher 
 In the Capitol." 4 
 
 1 Coriolanus, Act II, Scene I. 
 2 Coriolanus, Act II, Scene I. 
 s ll Pick. (Mass.) 436. 
 4 Coroilanus, Act II, Scene I. 
 
408 THE LAW IN SHAKESPEARE. 
 
 Brutus thus charges that Menelaus was a better "after 
 dinner speaker" than one to dispense justice in the Cap- 
 itol. "Bench" is a tribunal for the administration of jus- 
 tice and a "Bencher" is one who occupies the bench and so 
 dispenses justice. 1 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. 2 
 
 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." 3 
 
 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 
 
 1 Bacon, Abr., Courts; Viner, Abr., Courts. 
 a Wharton's Law Lexicon, (2 Lond. Ed.); Bouvier's Law Dic- 
 tionary. 
 
 The Romans used the word triounalia, to indicate the seats of 
 the higher judges, and sub-sella, to refer to those of the lower 
 judges. I Reeve's Hist. Eng. Law, 4; Spellman, Gloss. Bancus. 
 
 The Court of Common Pleas, in England, was formerly called 
 Bancus, the Bench, to distinguish it from Bancus Regis, the 
 King's Bench. Viner, Abr., Courts (n. 2). 
 
 3 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. — 
 
 11 Sic. Therefore, lay hold of him ; 
 
 Bear him to the rock Tarpeian, and from thence 
 Into destruction cast him." 1 
 
 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 w T ith 
 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. 2 
 
 1 Corlolanus, 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." 1 
 
 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." 2 
 
 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. "Proceed by 
 process." This is lawyer-like advice, to enjoy only the 
 rights which the law guarantees, through the remedial 
 procedure of the courts, which crystallized into funda- 
 mental or organic law, in this country, by our provision 
 that no one should be denied his rights, except upon "due 
 process of law." 1 
 
 "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. 2 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 down stretch 
 Below the beam of sight, yet will I still 
 Be thus to them." 3 
 
 1 See 14th Amendment to U. S. Con. 
 
 2 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.) 
 
 3 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. 1 Punishment by the "wheel" 
 was 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. I am content. 
 
 Sic. Answer to us. 
 Cor. Say then; 'tis true, I ought so. 
 Sic. We charge you, that you have contrived to take 
 From Rome, all season'd office, and to wind 
 
 1 Gibbons' Rome; Niebuhr, Arnold. 
 
 2 Bouvier's Law Dictionary. 
 
 Paulina refers to torture by the wheel, in Winter's Tale, when 
 she asks Leontes: 
 
 "Paul. What studied torments, tyrant, hast for me? 
 What wheels? racks? fires? etc." (Act III, Scene II.) 
 
CORIOLANUS. 413 
 
 Yourself into a power tyrannical; 
 
 For which, you are a traitor to the people. 
 
 Sic. Mark you this, people? 
 
 Cit. To the rock with him; to the rock with him." 1 
 
 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 tribuna, a sort of rival power in the affairs of 
 the government, to the consulate of the patricians, was 
 recognized. The comitia was the regularly convened 
 meeting of the Roman people, for the purpose of voting 
 on some public question. The different departments of 
 government, now recognized, were not separated at this 
 period of the world's history; it was a fundamental prin- 
 ciple of Roman Government that the supreme power was 
 inherent in the people, though it might be delegated by 
 them to elected or hereditary magistrates. All important 
 matters, however, had to be brought before the sovereign 
 people, who could ratify or reject, the proposals made to 
 them, without a discussion. The power of the people, 
 swayed, as they were by improper appeals and motives, 
 led, ultimately, to a period of moral and political corrup- 
 tion, which was followed by the military despotism of the 
 Caesars. And although the first few emperors called the 
 people together, in pursuance to this former custom of 
 the republic, the meetings were only to ratify the acts 
 of the emperors, and finally the power of the comitia, 
 which the Poet presents as condemning Coriolanus to 
 
 1 Coriolanus, Act III, Scene II. 
 
414 THE LAW IN SHAKESPEARE. 
 
 banishment, became an institution known only to the 
 traditions of the past greatness of the eternal city. 1 
 
 1 See Gibbon, Niebuhr, Arnold. 
 
 As this trial by the comitia, is presented, Shakespeare makes 
 Coriolanus defy the power of the people, as follows: "Cor. I'll 
 know no further: Let them pronounce the steep Tarpeian death, 
 vagabond exile, flaying," etc., and to this defiance, Sicinius, ap- 
 peals to the people: "Sic. ... In the name o' the people, And 
 in the power of us the tribunes, we, even from this instant, banish 
 him our city; In peril of precipitation from off the rock Tarpeian, 
 never more to enter our Roman gates; F the people's name, I say, 
 it shall be so." And the people ratify this judgment, as follows: 
 "Cit. It shall be so; it shall be so; let him away; he's banish'd, 
 and so it shall be." (Coriolanus, Act III, Scene III.) 
 
CHAPTER XXIX. 
 "JULIUS OESAR." 
 
 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?" 1 
 
 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 
 
 1 Julius Caesar, Act I. Scene I. 
 
 (415) 
 
416 THE LAW IN SHAKESPEARE. 
 
 place; any workman or artisan failing to comply with 
 the act, was to be punished by imprisonment, and the 
 justices for the execution of the act were to hold sessions 
 four times a year, at the Annunciation, on St. Margaret, 
 St. Michael and St. Nicholas's day; they were required 
 to regulate the conduct of laborers, and artisans and 
 laborers, or mechanics, absenting themselves before the 
 termination of their contract, were to be branded on the 
 forehead with a red hot iron, containing the letter "F," 
 to denote their falsity. 1 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. 2 
 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, 3 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. 4 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? 
 
 1 III Reeve's History Eng. Law, pp. 132, 133. 
 
 2 III Reeve's History Eng. Law, 366, 367. 
 
 3 Ante idem. 
 
 ♦Ill Reeve's History Eng. Law, pp. 413, 414. 
 

 JULIUS CAESAR. 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." 1 
 
 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." 2 
 
 1 Julius Caesar, Act I, Scene II. 
 
 'Goll's Criminal Types in Shakespeare, pp. 54, 55, 57. 
 
 Goll points out that Brutus will not even desert his ideals, after 
 the misfortunes of his private life and the strokes of adversity 
 have blasted all his hopes, for "in purity of thought he is the 
 
418 THE LaW IN SHAKESPEARE. 
 
 Sec. 401. Cassius the typical criminal revolutionist. — 
 
 "Cas. ... I cannot tell what you and other men 
 Think of this life; but, for my single self, 
 I had as lief not be, as live to be 
 In awe of such a thing as I myself. 
 I was born free as Caesar; so were you: 
 We both have fed as well; and we can both 
 Endure the winter's cold as well as he." 1 
 
 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, Goll said: "Cassius, with his mixture of polit- 
 
 same: he carries the banner of the ideal as high as ever. He 
 belongs to those whom adversity does not make smaller, nor 
 experience more clever. He has learned nothing from his earlier 
 errors, because they were the outcome of his innermost nature, 
 not of insumcint knowledge." (Goll's Criminal Types in Shake- 
 speare, p. 70.) 
 
 Illustrating the high ideals of Brutus, where the public inter- 
 est was in issue, Plutarch describes how he had taken sides with 
 Pompey, as against Caesar, although his father had been put to 
 death by Pompey. He said: "Thinking it his duty to prefer the 
 interest of the public to his own private feelings, and judging 
 Pompey's to be the better cause, he took part with him; though 
 formerly he used not so much as to salute or take any notice of 
 Pompey, if he happened to meet him, esteeming it a pollution to 
 have the least conversation with the murderer of his father." 
 (Plutarch's Life of Marcus Brutus.) 
 
 And referring to the object of the conspirators in urging Brutus 
 to take part with them, Plutarch said: "Their opinion was that 
 the enterprise wanted not hands or resolution, but the reputation 
 and authority of a man such as he was, to give, as it were, the 
 first religious sanction, and by his presence, if by nothing else, to 
 justify the undertaking; that without him they should go about 
 this action with less heart and should lie under great suspicions 
 when they had done it, for, if their cause had been just and 
 honorable, people would be sure that Brutus would not have re- 
 fused it." (Plutarch's Life of Marcus Brutus.) 
 
 Julius Caesar, Act I, Scene II. 
 
JULIUS CESAR. 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." 1 
 
 Sec. 402. Cassius' suggestion of the crime. — 
 
 "Cas. 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. 
 
 1 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." 1 
 
 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. 
 
 1 Julius Caesar, Act I, Scene II. 
 
JULIUS C.ESAR. 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." 1 
 
 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 Csesar 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 
 
 1 Julius Csesar, Act II, Scene I. 
 
422 THE LAW IN SHAKESPEARE. 
 
 not slept, "since Cassius first did whet" him against Caesar; 
 ever since the suggestion of the crime he had been like a 
 visionary, or one experiencing "a hideous dream." And 
 "like to a little kingdom," he had suffered "the nature of 
 an insurrection." 
 
 Sec. 404. The people's cause the motive for Brutus' 
 murder. — 
 
 "Bru. No, not an oath : If not the face of men 
 
 The sufferance of our souls, the time's abuse, — 
 If these be motives weak, break off betimes, 
 
 Plutarch mentions the high ideals of Brutus for law and his 
 duty, as he saw it, by pointing out that on one occasion, when 
 he was Praetor, and had patiently and laboriously heard the evi- 
 dence and given judgment in a cause and the party against whom 
 his decision was rendered, raised a great clamor and appealed to 
 Caesar, Brutus calmly replied that "Caesar does not hinder me, 
 nor will he hinder me, from doing according to the laws." (Plut- 
 arch's Life of Marcus Brutus.) 
 
 It was no doubt this stern adherence to duty and law, as he 
 saw it, that led this upright citizen into the commission of the 
 murder of his friend and protector, the great Caesar. 
 
 Judged by strictly legal standards, of course the offense is none 
 the less murder, because the life of a human being was taken in 
 an illegal manner, by an upright citizen, or one possessed of the 
 best motives. Every illegal killing of a human being, is murder 
 or manslaughter, according to the circumstances of the killing 
 and this violation of the law, by taking the life of a human being, 
 on grounds of public policy, could not be the subject of explana- 
 tion, as a lawful defense of the killing, but it could only be held 
 murder to take the life of a human being, in an unlawful man- 
 ner, or otherwise the lives of persons would have little or no 
 protection by the law, but the better the citizenship or motives 
 of the wrongdoer, the less chance there would be to secure con- 
 victions for such crimes. Brutus was therefore, in the legal view, a 
 murderer, because he conspired to take the life of a human 
 being, in an illegal manner, but nevertheless, in studying the 
 character of the man, and analyzing his motives, it is proper 
 to compare him with the other criminals who entered into the 
 conspiracy for less noble motives than those which prompted him 
 to act. 
 
JULIUS CAESAR. 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." 1 
 
 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, 2 but in analyzing the 
 
 Julius Caesar, Act II, Scene I. 
 
 2 In the trial of the fanatic Guiteau, for the murder of President 
 Garfield, the defense was urged that the murderer was impelled 
 to commit the crime while acting under the hallucination of a 
 
424 THE LAW IN SHAKESPEARE. 
 
 motives of the criminal, the same degree of moral tftrpiv 
 tude cannot attach to one who acts from a high sense of 
 duty, rather than the base motives that usually prompt 
 such crimes. Contrasted with the envy and personal hatred 
 which prompted Cassius to murder Caesar, the altruistic 
 feelings and motives that led Brutus to subordinate his 
 personal interests and love for Caesar to his high public 
 duty, makes the ethical mastery that he gained over him- 
 self the more complete. 
 
 The moving force that impelled him to the commission 
 of the crime was that "high-sighted tyranny" should not 
 "range on." With this high sense of his personal duty, 
 he did not regard the enterprise as a "bad cause" and 
 so entreated his accomplices not to "stain the even virtue" 
 of the enterprise, "nor the insuppressive mettle" of their 
 spirits by an ignoble oath. 
 
 Divine command, but it was held to be incompetent to 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: 
 "Bru. Let us be sacrificers, but no butchers, Caius. 
 
 We all stand up against the spirit of Caesar; 
 
 And in the spirit of men there is no blood: 
 
 0, that we then could come by Caesar's spirit, 
 
 And not dismember Caesar: But, alas, 
 
 Caesar must bleed for it, And, gentle friends, 
 
 Lets kill him boldly, but not wrathfully; 
 
 Let's carve him as a dish fit for the gods, 
 
 Not hew him as a 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 CAESAR. 425 
 
 Sec. 405. "The law of children."— 
 
 "Caesar. 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." 1 
 
 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. 2 
 
 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 Cassius. None appearing to the accusation, the judges 
 were forced to pass sentence and condemn them both. It Is re- 
 ported, that when the crier from the tribunal, as the custom was, 
 with a loud voice cried Brutus to appear, the people groaned 
 audibly, and the noble citizens hung down their heads for grief." 
 (Plutarch's Life of Marcus Brutus.) 
 
 1 Julius Caesar, 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." 1 
 
 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. 3 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 
 Caesar, 
 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.) 
 
 1 Julius Caesar, Act III. Scene I. 
 
 3 III Shars. Bl. Comm., sec. 255, p. 173; IV idem., sec 33, p. 351. 
 
 8 IV Shars. Bl. Comm., sec. 33, pp. 351, 30. 
 
JULIUS OffiSAR. 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." 1 
 
 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. 2 
 
 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. 3 
 
 1 Julius Caesar, Act III, Scene II. 
 
 1 Gibbon's Rome. 
 
 • Plutarch's Life of Caesar and Plutarch's Life of Antony. 
 
428 THE LAW IN SHAKESPEARE. 
 
 Sec. 408. The effect of error. — 
 
 "Mes. ... hateful error, melancholy's child: 
 Why dost thou show to the apt thoughts of men, 
 The things that are not? error, soon conceiv'd, 
 Thou never com'st unto a happy birth, 
 But kilPst the mother that engender'd thee." 1 
 
 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/' 1 
 
 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.) 
 
 1 Julius Caesar, Act V, Scene III. 
 'Julius Caesar, Act V, Scene V. 
 
JULIUS CJESAR. 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. 1 
 
 J This is the conclusion of August Goll. See Goll's Criminal 
 Types in Shakespeare, pp. 74, 75, 76, 77. 
 
CHAPTER XXX. 
 
 "ANTONY AND CLEOPATRA." 
 
 Sec. 410. Bourn. 
 
 411. Leaving property in use. 
 
 412. Title by descent and purchase, distinguished. 
 
 413. Prorogue. 
 
 414. Malefactor. 
 
 415. Antony's suicide — Felo de se. 
 
 Sec. 410. Bourn. — 
 
 "Ant. There's beggary in the love that can be 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." 1 
 
 Bourn means a boundary or limitation. 2 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." 3 
 
 A "use," by the English law, was a confidence reposed 
 in another, who was made tenant of the land, or terre 
 
 1 Antony and Cleopatra, Act I, Scene I. 
 
 2 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. 1 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. 2 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." 3 
 
 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. 4 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. 5 
 
 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. 
 :^mm. 328. 
 *■ Bacon's Inst., 2, 23-2; 2 Bl. Comm. 333; Bacon, Law Tr. 335. 
 4 Antony and Cleopatra, Act I, Scene IV. 
 ♦Tiedeman's Real Prop. (3d ed.), Chap. Title by descent. 
 'Tiedeman's Real Prop. (3d ed.), Chap. Title by Purchase. 
 
432 THE LAW IN SHAKESPEARE. 
 
 in which the will of the possessor has nothing to do — and 
 the law of nature is liken'd to the law of man — and the 
 things voluntarily taken, by one's own choosing, as a title 
 by purchase. It is a lawyer's excuse for one's natural 
 
 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." 1 
 
 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. 2 
 
 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, but yet, it does allay 
 The good precedence; fie upon but yet; 
 But yet is a gaoler to bring forth 
 Some monstrous malefactor." 3 
 
 Malefactor is a common legal term for a wrongdoer, 
 or a violator of the law, and especially of the criminal law. 4 
 
 Cleopatra, out of her suspicion, or intuition, foresees 
 the dark object concealed by the messenger and with a 
 
 1 Antony and Cleopatra, Act II, Scene I. 
 
 2 Tomlin's Law Dictionary. 
 
 3 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." 1 
 
 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. 2 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. 3 
 
 1 Antony and Cleopatra, Act V, Scene I. 
 2 II Reeve's History Eng. Law, 275. 
 3 II Reeve's History Eng. Law, 275. 
 
 The English Act of 1824 permitted burial in the churchyard of 
 the suicide, without rites, between 9 and 12 p. m., but by the Act 
 of 1882, burial at any hour, with the usual rites, were sanctioned. 
 
 As a person committed felony in killing another, so, in law, he 
 was held equally guilty in laying violent hands upon himself 
 and this was called felonia de seipso. And Bracton shows that a 
 man who killed himself forfeited his movables. Bract. 150. 
 
434 THE LAW IN SHAKESPEARE. 
 
 Imogen, in speaking of self-slaughter, is made to say, in Cym- 
 beline: 
 "Imo. Against self-slaughter 
 
 There is a prohibition so divine 
 
 That cravens my weak hand." (Act III, Scene IV.) 
 
 In pronouncing the funeral oration, at the grave of Ophelia, 
 the Priest, in Hamlet, refers to the fact that 
 •'Her death was doubtful; 
 
 And, but that great command oe'rsways the order, 
 She should in ground unsanctified have lodg'd, 
 Till the last trumpet." (Act V, Scene I.) 
 
 Touching suicide, Hamlet is made to say: 
 "Ham. O, that this too too solid flesh would melt, 
 Thaw, and resolve itself into a dew: 
 Or, that the Everlasting had not fix'd 
 His canon 'gainst self-slaughter." (Act I, Scene II.) 
 
CHAPTER 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. Guiderius' defense of his crime. 
 
 426. Upright Justicer. 
 
 Sec. 416. Election to act in given way. — 
 
 "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." 1 
 
 Election, in the law, is the choice between alternating 
 or inconsistent rights or claims. 2 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 
 
 1 Cymbeline, Act I, Scene I. 
 
 2 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." 1 
 
 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. 2 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. 3 
 
 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. — 
 
 "lack. 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. . . . 
 
 Iach. 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 : 
 I will fetch my gold and have our two wagers re- 
 corded. 
 
 1 Cymbeline, Act I, Scene II. 
 
 2 Bouvier's Law Dictionary. 
 
 •Ulplan, Dig. 50, tit. 13; Tacitus, Annal. X. 6. 
 
CYMBELINE. 437 
 
 Post. Agreed. 
 
 French. Will this hold, think you?" 1 
 
 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. 2 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 Iachimo 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. 
 Iachimo, 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. 3 
 
 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 
 
 1 Cymbeline, Act I, Scene V. 
 
 2 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. 1 The law, in such cases, leaves the 
 parties to illegal agreements where it finds them, refusing 
 to interfere, either to enforce or relieve against agreements 
 contrary to public policy. 2 
 
 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." 3 
 
 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." 4 
 
 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. 
 
 1 Lawson, on Contracts, (2d ed.) Chap. Illegal Considerations. 
 'Lawson, Contracts, (2d ed.) supra. 
 • Cymbeline, Act II, Scene III. 
 4 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. 1 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." 2 
 
 By the Statute Merchant, of England, 3 debtors were 
 required to enter into bond, before the mayor of London, 
 or the chief warden of other cities or towns, and the lands 
 of the debtor were conveyed to the creditor, until out of 
 the rents and profits his debt was paid and satisfied. 4 If 
 the debtor forfeited his bond, he was liable to be thrown 
 in jail, until the penalty was discharged, 5 hence he would 
 pray to be relieved of the bond, but the lover would pray 
 that the bonds of love might hold him forever. 
 
 1 Coke's Litt. 285. 
 
 In A Lover's Complaint, the "fickle maid" on perusal of her let- 
 ters, cried: 
 
 "O false blood, thou register of lies, 
 What unapproved witness dost thou bear: 
 Ink would have seem'd more black and damned here." 
 
 (52, 54.) 
 3 Cymbeline, Act III, Scene II. 
 •13 Edw. I, c. 1. 
 
 * 2 Bl. Coram. 160; Cruise, Dig. tit. 14, sec. 7. 
 8 Bacon, Abr. 
 
 The lines just preceding those quoted above refer to the formula 
 of sealing such bonds as were exacted of debtors, by creditors, for 
 while sealing was required, signature was not essential to the 
 validity of such obligations. Rolfe's Cymbeline, p. 214, notes. 
 
440 THE LAW IN SHAKESPEARE. 
 
 Sec. 422. Frankleyn. — 
 
 "Imogen. Go bid my woman feign a sickness, say 
 
 She'll home to her father; and provide me presently 
 A riding-suit, no costlier that would fit 
 A franklin's housewife." 1 
 
 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," 3 
 
 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. 4 
 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. 5 
 
 Iachimo, 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.) 
 
 s Cymbeline, Act III, Scene III. 
 2 Bouvier's Law Dictionary; Cowel. 
 "Cymbeline, Act III, Scene III. 
 4 II Bell's Com. (Shaw's Ed.), p. 1067. 
 6 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." 1 
 
 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 Emptor es, (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. 2 
 
 Sec. 425. Guiderius' defense of his crime. — 
 
 "Qui. ... 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?" 3 
 
 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. 
 1 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 : — 0, give me cord, or knife, or poison, 
 Some upright justicer." 1 
 
 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. 2 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. 3 
 
 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." 
 
 1 Cymbeline, Act V, Scene V. 
 
 2 Baker, fol. 118; Cron. angl. 
 
 s 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?" 1 
 
 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." 2 
 
 1 Titus Andronicus, Act II, Scene I. 
 8 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." 1 
 
 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 a? 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. 2 
 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 
 
 1 Titus Andronicus, Act II, Scene IV. 
 a 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." 1 
 
 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 remembered, Marcus, she's gone, she's fled." 2 
 
 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. 3 According to 
 
 1 Titus Andronicus, Act IV, Scene III. 
 
 2 Titus Andronicus, Act IV, Scene III. 
 
 3 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?" 1 
 
 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. 2 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." 3 
 
 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. 4 A con- 
 
 1 Titus Andronicus, Act IV, Scene IV. 
 2 Bouvier's Law Dictionary. 
 3 Titus Andronicus, Act IV, Scene IV 
 1 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. 1 Contempts at 
 common law were liable to prosecution and punishment. 2 
 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." 3 
 
 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. 4 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. 5 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. 
 
 1 Ante idem. 
 
 1 IV Reeve's History Eng. Law, 205. 
 3 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." 1 
 
 Incest is the unlawful cohabitation of persons of near 
 degree of relationship and the crime, in many countries, 
 is a capital offense, 2 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. 3 
 
 1 Pericles, Prince of Tyre, Act I, Pro. 
 
 2 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." 1 
 
 This reply of Pericles, to the king of Antioch, illus- 
 trates a patent fact observed by the criminologist, August 
 Goll, 2 that Shakespeare possess'd a deep insight into the 
 psychological problems of criminology. That crime has 
 its growth like other traits of character, cultivated by a 
 person, is now a generally recognized fact of science, in 
 the study of criminal types and as the Poet, in this same 
 scene, makes the chorus, in the character of Gower observe 
 
 Pericles tells Antiochus, in correctly interpreting the riddle: 
 "Per. If it be true that I interpret false, 
 Then were it certain you were not so bad, 
 As with foul incest to abuse your soul." (Act I, Scene I.) 
 Referring to the daughter of Antiochus, Pericles, Prince of 
 Tyre, tells Helicanus: 
 "Per. Her face was to my eye beyond all wonder; 
 
 The rest (hark in thine ear) as black as incest." 
 
 (Act I, Scene II.) 
 Referring to the marriage of his Mother and. Uncle, Hamlet 
 said: 
 
 "O most wicked speed, to post 
 With such dexterity, to incestuous sheets." 
 
 (Act I, Scene II.) 
 The Ghost, in Hamlet, refers to the latter's uncle as "that 
 incestuous, that adulterous beast," and exhorts Hamlet that he 
 shall not 
 
 "Let 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." 
 
 (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.) 
 
 1 Pericles, Prince of Tyre, Act I, Scene I. 
 2 Goll's Cr. Types, in Shakespeare, p. 27. 
 
450 THE LAW IN SHAKESPEARE. 
 
 that, "by custom what they did begin, was, with long use, 
 account no sin," so one sin or criminal act 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." 1 
 
 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. 2 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. 3 
 
 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." 4 
 
 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- 
 
 1 Pericles, Prince of Tyre, Act I, Scene II. 
 * Bouvier's Law Dictionary. 
 •Hutchinson's Carrier's (3d ed.). 
 4 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." 1 
 
 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 
 
 1 Pericles, Prince of Tyre, Act III, Scene III. 
 
452 THE LAW IN SHAKESPEARE. 
 
 has me her quirks, her reasons, her master-reasons, 
 her prayers, her knees, that she would make a puritan 
 of the devil, if he should cheapen a kiss of her." 1 
 
 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." 2 
 
 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." 3 
 
 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 
 
 1 Pericles, Prince of Tyre, Act IV, Scene V. 
 
 2 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?" 1 
 
 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, 3 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. 
 2 Bouvier's Law Dictionary. 
 3 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.' 71 
 
 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. 2 
 
 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." 3 
 
 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. 
 
 1 King Lear, Act I, Scene I. 
 
 2 Tiedeman's R. P. (3d ed.). For legislation concerning estates 
 tail, see II Reeve's History Eng. Law, 459. In the grant to his 
 first daughter, the language used by Shakespeare is not unlike 
 the habendum of a comman law conveyance. And this is fol- 
 lowed, it will be noted, further on, by the confirmation, "Which, 
 to confirm, this coronet part between you." 
 
 s 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." 1 
 
 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. 2 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. 3 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." 4 
 
 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. 5 By the English law, the punishment 
 
 *King Lear, Act I, Scene I. 
 3 Tiedeman's R. P. (3d ed.). 
 
 3 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.) 
 
 4 King Lear, Act II, Scene I. 
 
 6 Bishop's Criminal Law ; Russell, Crimes ; Sherwood's Cr. Law. 
 
KING LEAR. 4&) 
 
 of parricides was the same as that of any other murderer, 1 
 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. 2 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." 3 
 
 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, 4 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, 5 and pictures by wood engravings and steel plates 
 had existed since the middle of the fifteenth century. 6 
 
 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. 7 
 
 1 Bouvier's Law Dictionary. 
 
 2 See Gibbon, Niebuhr, Arnold. 
 
 8 King Lear, Act II, Scene I. 
 
 *The alchemists of the 16th century made the important dis- 
 covery that horn silver would blacken on exposure to light, and 
 this was the most advanced step in photography they made. 
 Scheele, a Swedish chemist, found that it was blackened quickest 
 by the violet ray of a solar spectrum, in 1777, and twenty-five 
 years later Ritter, of Jena, demonstrated the existence of chem- 
 ically active non-visible rays, beyond the violet ray of the spec- 
 trum. Daguerre produced the first dauguerratype, in 1825. 
 
 5 See Rolfe's King Lear, p. 215, notes. 
 
 •Ottley's Origin and History of Engraving. 
 
 T Lord Campbell seems to have made this mistake. Rolfe's 
 King Lear, p. 215, notes, supra. 
 
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/' 1 
 
 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, 2 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." 3 
 
 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 
 
 1 King Lear, Act II, Scene II. 
 
 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." 1 
 
 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." 2 
 
 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." 3 
 
 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, 4 for by this 
 
 1 King Lear, Act III, Scene II. 
 
 2 Rolfe's King Lear, p. 238, notes. 
 
 3 King Lear, Act III, Scene IV. 
 
 4 This statute repealed 18 Elizabeth, c. 3, and 35 Eliz., c. 5. 
 
460 THE LAW IN SHAKESPEARE. 
 
 act all "persons delivered out of goal, who beg for their 
 fees/' and "all who shall wander about begging" are de- 
 fined as "rogues, vagabonds and sturdy beggars" and such, 
 when found by any justice, constable, headborough or 
 tithingman, "be stripped naked from the middle upwards, 
 and be openly whipped till he is bloody, and shall then 
 be sent from parish to parish, by the officers of the same, 
 till he come to the parish where he was born," 1 etc. And 
 during the reigns of Henry VII, 2 Edward VI 3 and Henry 
 VIII, 4 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. 5 
 
 Sec. 452. Imaginary trial of Goneril. — 
 
 "Lear. It shall be done, I will arraign them straight: — 
 Come, sit thou here, most learned justicer: — (To Ed- 
 gar.) 
 Thou, sapient sir, sit here. (To the Fool) — Now, 
 you she foxes: — 
 Edg. Look, where he stands and glares: — 
 Wantest thou eyes at trial, madam? 
 
 Lear. I'll see their trial first : — Bring in the evidence. — 
 Thou robed man of justice, take thy place; (To 
 
 Edgar) 
 And thou, his yoke-fellow of equity, (To the Fool) 
 Bench by his side: — You are of the commission, (To 
 
 Kent) 
 Sit you too. 
 
 Edg. Let us deal justly. . . . 
 
 Lear. Arraign her first; 'tis Goneril. I here take my 
 oath before this honorable assembly, she kicked the 
 poor king, her father." 6 
 
 *V Reeve's History Eng. Law, p. 209. 
 
 8 II Henry VII, c. 2, and 19 Henry VII, c. 12. 
 
 3 4 Edw. VI, c. 16, 5 and 6 Edw. VI, c. 2. 
 
 * 22 Henry III, c. 12. 
 
 B V Reeve's History Eng. Law, p. 210. 
 
 6 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. 1 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. 
 2 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." 1 
 
 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. 2 
 
 1 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." 1 
 
 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. 2 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. 3 
 
 1 Romeo and Juliet, Act I, Scene II. 
 
 2 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. 1 
 
 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." 2 
 
 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. 3 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. 4 
 
 1 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 bail, 
 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. 
 
 4 Rogers, Dom. Rel. 
 
 In Venus and Adonis, it is said: "Her arms do lend his neck 
 a sweet embrace; Incorporate then they seem; face grows to 
 face." (539, 540.) 
 
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. simple." 1 
 
 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. 2 A fee-simple estate may either be 
 created by deed, or acquired by purchase, 3 as elsewhere 
 seen. 4 
 
 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." 5 
 
 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. 6 The difference between a fine and an 
 
 1 Romeo and Juliet, Act III, Scene I. 
 
 2 Tiedeman, R. P., Chap. Ill (3d. ed.). 
 
 8 Ante idem. 
 
 * See Chapter III. 
 
 6 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. — 
 
 "Mori. 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." 1 
 
 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. 2 Tybalt 
 was a murderer in killing Mercutio, for death by duelling, 
 was murder, at common law, 3 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. deadly sin: rude unthankf ulness : 
 
 Thy fault our law calls death ; but the kind prince, 
 
 1 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." 1 
 
 The Friar was right. Taking human life, by duelling, 
 at common law, was murder and murder was punishable 
 by death. 2 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." 8 
 
 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. 4 
 
 461. Label appended to deed. — 
 
 Jul. . . . And ere this hand, by thee to Romeo 
 seal'd, 
 Shall be the label to another deed. 
 
 1 Romeo and Juliet, Act III, Scene III. 
 
 2 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.) 
 
 3 Romeo and Juliet, Act IV, Scene I. 
 
 4 Cooley's Torts, 193. 
 
468 THE LAW IN SHAKESPEARE, 
 
 Or my true heart with treacherous revolt 
 Turn to another, this shall slay them both." 1 
 
 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. 2 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. — 
 
 "A p. Such mortal drugs I have ; but Mantua's law 
 Is death, to any he that utters them." 3 
 
 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. 4 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. 5 
 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. 8 
 
 1 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.) 
 
 8 Romeo and Juliet, Act V, Scene I. 
 
 4 Heineccii, Hist. Jur. Civ.; Niebuhr, Roman Hist.; Hook's Hist. 
 Rome. 
 5 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." 1 
 
 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. 2 To purge, is to clear from guilt or moral defile- 
 ment, by establishing one's innocence of the charge of 
 crime. 3 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. 
 
 1 Romeo and Juliet, Act V, Scene III. 
 2 Bouvier's Law Dictionary. 
 "Bouvier'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. p 
 
 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." 1 
 
 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. 2 
 
 1 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." 1 
 
 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 f regit, and if the entry was accomplished by 
 force and violence, it gave rise to an action vi et armis. 2 
 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. 1 
 
 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." 2 
 
 Forgery, at common law, was the fraudulent making 
 or altering of a writing or seal, to the prejudice of another's 
 rights. 3 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. 4 
 
 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. 
 
 4 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." 1 
 
 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. 2 
 
 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, tUat presently 
 They have proclaim'd their malefactions. 3 
 
 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. 4 
 
 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 
 
 1 Hamlet, Prince of Denmark, Act II, Scene II. 
 2 Tiedeman's R. P. (3d ed.) ; Bouvier's Law Dictionary. 
 3 Hamlet, Prince of Denmark, Act II, Scene II. 
 4 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. 1 
 
 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?" 2 
 
 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. 8 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 
 
 1 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. 
 3 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 % 
 A brother's murder." 1 
 
 The crime of murdering a brother is known to the law 
 as the crime of fratricide 2 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." 3 
 
 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." 4 
 
 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 
 
 1 Hamlet, Prince of Denmark, Act III, Scene III. 
 2 Bouvier's Law Dictionary; Bishop's Criminal Law. 
 
 3 Genesis. IV, 11, 12. 
 
 4 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, 1 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, 2 nor can a witness be compelled to answer ques- 
 tions that tend to incriminate himself. 3 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." 4 
 
 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. 5 
 
 As some counselors are garrulous and talk too much 
 in giving their advice, Hamlet evidently felt— as the 
 
 ^reenleaf on Evidence (14th ed.). 
 
 'Ante idem. 
 
 3 Greenleaf on Evidence (14th ed.). 
 
 4 Hamlet, Prince of Denmark, Act III, Scene IV. 
 
 6 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 abatements and delays as many, 
 As there are tongues, are hands, are accidents." 1 
 
 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. 2 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. 3 As the 
 effect of such pleas, if successful, was to bring about a 
 new action and hence a consequent delay, the Poet, as 
 elsewhere, 4 condemns such practice. 
 
 Sec. 474. "Crowners-quest law." — 
 
 "1 Clo. Is she to be buried in Christian burial, that 
 willfully seeks her own salvation? 
 
 1 Hamlet, Prince of Denmark, Act IV, Scene VII. 
 
 2 Bouvier's Law Dictionary; Stephens, Common Law Pleading. 
 
 3 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. Ay, 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." 1 
 
 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. 3 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. 4 If the inquisition did 
 
 1 Hamlet, Prince of Denmark, Act V, Scene I. 
 
 2 II Reeve's History Eng. Law, p. 275. 
 
 3 Bracton, 150; ante idem. 
 
 4 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. 1 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. 2 
 
 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 " Crown er," 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 
 
 1 Ante idem. 
 
 2 II Reeve's History Eng. Law, 275, 276. 
 
 As Dr. Rolfe shows, in his excellent edition of Hamlet, Sir John 
 Hawkins suspects that Shakespeare intended in this dialogue be- 
 tween the Clowns, to ridicule a case reported by Plowden, in which 
 Sir James Hale had drowned himself in a fit of insanity and the 
 discussion by the Court, in the opinion, was with a view of ascer- 
 taining if the death was intentional or accidental, and the state- 
 ment and arrangement of the propositions were similar to those 
 presented by the Clown, in the above lines. Hales vs. Petit, 1 
 Plowden, 253. 
 
480 THE LAW IN SHAKESPEARE. 
 
 the sconce with a dirty shovel, and will not tell 
 him of his action of battery? Humph: This fellow 
 might be in's time, a great buyer of land, with his 
 statutes, his recognizances, his fines, his double vouch- 
 ers, his recoveries: Is this the fine of his fines, and 
 the recovery of his recoveries, to have his fine pate 
 full of fine dirt? will his vouchers vouch him no 
 more of his purchases, and double ones too, than the 
 length and breadth of a pair of indentures? The 
 very conveyances of his lands will hardly lie in this 
 box; and must the inheritor himself have no more?" 1 
 
 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. 2 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 
 
 1 Hamlet, Prince of Denmark, Act V, Scene I. 
 
 2 Tiedeman, R. P. (3d ed.); Ill Reeve's History Eng. Law, 134. 
 
HAMLET. 481 
 
 all claims of the former owner to the land. 1 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. 2 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. 8 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." 4 
 
 It is passing strange, that amid the stirring scenes of 
 this last act in the tragedy, even at the deathbed of his 
 
 1 Tiedeman, R. P. (3d ed.); I Reeve's History Eng. Law, 
 340, 416. 
 
 2 1 Bl. Comm. 238. 
 
 3 III Reeve's History Eng. Law, 24. 
 
 4 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." 1 
 
 In other words, amid the tragic scenes of this last 
 act, the Poet remembers the legal status of the crown and 
 the necessity of disposing of it in a proper and lawful 
 manner and he does not sacrifice this purely legal ques- 
 tion, even for the more stirring scenes of the closing act. 
 
 *Act V, Scene II. 
 
 History does not furnish this close to Hamlet's, or as he was 
 properly called, to Amleth's career. Indeed, modern historians of 
 Denmark, claim that the whole story of Hamlet is a myth; but 
 Muller thinks there is a substratum of fact to the story and 
 according to Saxo-Grammaticus, Amleth, Prince of Jutland, lived 
 in the 2nd century, B. C, and his father was murdered by his 
 uncle, who married his mother and the facts of his life are almost 
 exactly as presented in the play. 
 
CHAPTEE 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. Iago the cynic anti-pathetic criminal. 
 
 483. Law-days of Courts of Inquiry. 
 
 484. Iago's crime against Othello. 
 
 485. Proof of guilt "beyond reasonable doubt." 
 
 486. False indictment on suborned testimony. 
 
 Sec. 477. Nonsuit. — 
 
 "lago. . . . But he, as loving his own pride and 
 purposes, 
 Evades them, with a bombast circumstance, 
 Horribly stuff' d with epithets of war; 
 And, in conclusion, nonsuits 
 My mediators." 1 
 
 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. 2 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. 3 
 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 Iago's advancement, as an action at law, 
 Othello, rather than grant their prayer, non-suits them, 
 
 1 Othello, the Moor of Venice, Act I, Scene I. 
 
 2 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." 1 
 
 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. 2 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." 3 
 
 Brabantio had charged that his daughter must have 
 been seduced by witchcraft, medicines or some foul and 
 
 1 Othello, the Moor of Venice, Act I, Scene III. 
 
 2 1 Reeve's History Eng. Law, p. 461; II idem., pp. 516, 517. 
 
 "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. 1 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, 2 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. 3 
 
 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." 4 
 
 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. 5 But by the practice which 
 obtained on the trial of such offenses, in the time of 
 
 1 V Reeve's History Eng. Law, 312, et sub. 
 
 2 Strickland, Evid., 408; 2 M. & M„ 75; 3 Dougl., 157. 
 
 3 V Reeve's History Eng. Law, p. 349. 
 
 4 Othello, the Moor of Venice, Act I, Scene III. 
 
 6 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." 1 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." 2 
 
 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. 3 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- 
 nance of the divine worship. 
 
 Iago 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, lib. 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. Iago 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." 1 
 
 Speaking of Iago 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 Iago belongs." 2 
 
 1 Othello, the Moor of Venice, Act I, Scene III. 
 2 GoH's Criminal Types in Shakespeare, 223, 225. Speaking of 
 the character of Iago, this author elsewhere says: "In Iago 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?" 1 
 
 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 Iago'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. Iago'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 Iago'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.) 
 
 1 Othello, the Moor of Venice, Act III, Scene III. 
 
OTHELLO. 489 
 
 In instigating the jealousy of the Moor, Iago in these 
 lines, likens the human mind to a palace, wherein courts 
 of inquiry are held, on proper law days, 1 at regular ses- 
 sions of such courts, meditations are had upon causes 
 not as pure as those that ought to occupy the mind. 
 
 Iago 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 Iago enters and all the psychological reasons that 
 prompt him to action — portrays how consummately Iago 
 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. Iago'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. 
 
 Oth. Dost thou say so? 
 
 Iago. She did deceive her father, marrying you; 
 
 And, when she seem'd to shake, and fear your looks, 
 She lov'd them most. 
 
 Oth. And so she did. 
 
 Iago. Why, go to, then; 
 
 She that, so young, could give out such a seeming, 
 To seel her father's eyes up, close as oak, — 
 
 a Court-leet is the oldest court with criminal jurisdiction; it was 
 a court of record and had power similar to that of the Sheriffs 
 tourn in the county. Dyer, 30b; 4 Bl. Comm. 273. 
 
490 THE LAW IN SHAKESPEARE. 
 
 He thought, 'twas witchcraft: — But I am much to 
 
 blame ; 
 I humbly do beseech you of your pardon, 
 For too much loving you. 
 Oth. I am bound to thee forever." 1 
 
 In thus destroying, for all time, his faith in his wife, 
 Iago here commits the greatest crime that he could against 
 Othello, for as his love for Desdemona exceeded all else 
 on earth, the act of Iago 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 Iago and hence shows the 
 greater criminal instinct which he possessed. As ob- 
 served by Goll, 2 "if humanity itself had occupied the place 
 of Othello, then Iago 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, Iago 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; 
 
 1 Othello, the Moor of Venice, Act III, Scene III. 
 
 2 Goll'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." 1 
 
 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. 2 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. 3 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." 4 
 
 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 
 
 1 Othello, the Moor of Venice, Act III, Scene III. 
 
 2 Sherwood's Criminal Law; Bishop's Criminal Law. 
 
 3 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. 1 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. 
 
 1 Bishop's Criminal Procedure; 4 Bl. Comm. 302. 
 
CHAPTER XXXVIII. 
 
 "VENUS AND ADONIS." 
 
 Sec. 487. Judge cannot right his own cause. 
 
 488. Law-giver unable to enforce Law. 
 
 489. Client wrecked, when attorney mute. 
 
 490. Conveyance by seal-manual. 
 
 491. Double penalty upon broken bond. 
 
 492. Inheritance by next of blood. 
 
 Sec. 487. Judge cannot right his own cause. — 
 
 ". . . impatience chokes her pleading tongue, 
 
 And swelling passion doth provoke a pause; 
 Red cheeks and fiery eyes blaze forth her wrong ; 
 Being judge in love, she cannot right her cause: 
 And now she weeps, and now she fain would speak, 
 And now her sobs do her intendments break." 1 
 
 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. — 
 
 "Poor queen of love, in thine own law forlorn, 
 To love a cheek that smiles* at thee in scorn." 2 
 
 This verse does not alone present the sad picture of the 
 goddess of love in her total inability to arouse even a 
 spark of affection in the object of her passion, but it does 
 
 1 Venus and Adonis, 217, 222. 
 
 2 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 stay'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." 1 
 
 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." 2 
 
 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 
 
 1 Venue and Adonis, 331, 336. 
 
 2 Venus and Adonis, 511, 516. 
 
VENUS AND ADONIS. 495 
 
 all bargains and sales of land or other instruments for 
 the conveyance of land. 1 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?" 2 
 
 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 
 
 1 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 1 — 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." 2 
 
 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. 3 
 
 a Lawson, on Contracts (3d ed.). 
 2 Venus and Adonis, 1183, 1184. 
 3 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." 1 
 
 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 a dotes on what he looks, 'gainst law or duty." 
 
 Sec. 494. Pleading for right, in wilderness without 
 law. — 
 
 "While she, the pictureof true piety, 
 Like a white hind, under the gripe's sharp claws, 
 
 1 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." 1 
 
 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." 2 
 
 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 
 
 J The Rape of Lucrece, 542, 546. 
 3 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. 1 
 
 Sec. 496. Attestation by notary. — 
 
 "0 comfort-killing Night, image of hell: 
 Dim register and notary of shame." 2 
 
 A notary is an officer known to the civil law of Rome 
 as tabellio forensis. 3 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, Lucreco 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. 
 
 1 Schouler's Domestic Relations. 
 
 2 The Rape of Lucrece, 764, 765. 
 3 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." 1 
 
 An assault is an attempt to inflict bodily injury upon 
 another, coupled with a present intent to carry such 
 attempt into execution. 2 Battery is the consummation of 
 the assault, or the actual infliction of threatened violence. 3 
 
 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." 4 
 
 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 
 
 a The Rape of Lucrece, 834, 835. 
 2 Cooley on Torts. 
 
 3 Ante idem. Bouvier's Law Dictionary. 
 
 4 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. 1 
 
 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." 2 
 
 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- 
 
 1 Following up this reasoning, she is made to complain further 
 of Opportunity, in the next verse, as follows: 
 "Thou makest the vestal violate her oath; 
 Thou blowest the fire when temperance is thaw'd; 
 Thou smotherest honesty, thou murder'st troth; 
 Thou foul abettor: thou notorious bawd." (883, 886.) 
 
 'The Rape of Lucrece, 904, 907. 
 
502 THE LAW IN SHAKESPEARE. 
 
 tion breeds." This, of course, is misanthropy, but under 
 the circumstances it could not be presumed that Lucrece 
 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." 1 
 
 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." 2 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." 8 
 
 1 The Rape of Lucrece, 936, 938. 
 
 2 Merchant of Venice, Act IV, Scene I. 
 
 3 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 
 ]ate after the offense, but they follow, because they accom- 
 pany it." He also realized that "crime and punishment 
 grew out of one stem." 1 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, 2 but by the fixed law of compensation, wrong him, 
 "till he render right," or make full and adequate restitu- 
 tion. 
 
 Sec. 502. Case past help of law. — 
 
 "Out, idle words, servants to shallow fools: 
 Unprofitable sounds, weak arbitrators : 
 Busy yourselves in skill-contending schools ; 
 Debate where leisure serves with dull debaters ; 
 To trembling clients be you mediators: 
 For me, I force not argument a straw, 
 Since that my case is past the help of law." 3 
 
 1 Emerson's Essay, Compensation. 
 
 2 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." 1 
 
 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." 2 
 
 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 
 
 1 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." 1 
 
 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. 2 
 
 1 Sonnets, XIII, 3, 6. 
 
 2 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." 1 
 
 After first promising that nothing but the truth will be 
 expressed, as to his "love," the Poet affirms, on the best 
 evidence, as to things actually known, that he is as fair 
 as any mother's son, though not so bright as the fix'd 
 stars of heaven. He will not affirm anything of his love, 
 by secondary or hearsay evidence, but those who prefer 
 hearsay to actual facts, could say much more. No painted 
 rhetoric or hearsay evidence are needed to add color to the 
 description given by the actual facts concerning the sub- 
 ject referred to. Things for sale require such praise, but 
 not those things that are not intended for the market. 
 
 As hearsay evidence is incompetent in all legal proceed- 
 ings 2 and opinions are only admissible by experts, or 
 those possessing skill or experience in a given transac- 
 tion, the reference in these lines to the rule requiring the 
 best evidence of which the subject is susceptible, seems 
 apparent. 
 
 Sec. 506. Adverse party for advocate. — 
 
 "For to thy sensual fault I bring in sense — 
 Thy adverse party is thy advocate — 
 And 'gainst myself a lawful plea commence." 3 
 
 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 
 
 1 Sonnets, XXI, 9, 14. 
 
 2 Greenleaf on Evidence (14th ed.). 
 
 3 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. 1 
 
 "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 war, 
 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: 
 
 1 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." 1 
 
 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. 2 
 
 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, 
 
 1 Sonnets, XL VI, 1, 14. 
 
 2 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." 1 
 
 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." 2 
 
 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. 3 
 
 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. 4 
 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). 
 3 Bouvier's Law Dictionary. 
 'Tiedeman's R. P. (3d ed.). 
 
SONNETS. 511 
 
 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." 1 
 
 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. 2 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." 3 
 
 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 
 
 1 Sonnets, CVII (1, 4). 
 
 2 White, Mines & Mining Remedies, Chap. XI. 
 
 Ib 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. 
 
 his 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. 1 The land itself, 
 not being susceptible of a manual delivery, the mortgagee 
 holds the mortgage as an evidence of his right to the 
 land as security for his debt, until it is paid. The only 
 way to create a mortgage in early times, was to give livery 
 of seisin of the freehold estate, thus passing the estate to 
 the mortgagee. On breach of the condition of the mort- 
 gage, to pay the debt, the estate was forfeited and became 
 the absolute property of the mortgagee. And the Poet 
 here proffers to forfeit himself as security for his friend, 
 recognizing that the condition of the obligation is broken 
 
 Tiedeman, R. P. (3d ed.). 
 
INDEX. 
 
 References are to Section*. 
 
 Abatement, pleas in, 473. 
 Abstract and brief, 179. 
 Accessory before the fact, 315. 
 Accomplice, 'peaching on, 219. 
 Accomplices, 233. 
 Accused, acquittal of, 314. 
 Accuser and accused, 188. 
 Accusing counselor, 354. 
 Accusing one face to face, 353. 
 Acquittal, of accused, 314. 
 Acquittances, 73. 
 Act distinguished from intent, 35. 
 Acting as both judge and juror, 
 
 355. 
 Action, 238. 
 Action of battery, 17. 
 Action of slander, 23. 
 Action on the case, 155. 
 "Action-taking" knave, 448. 
 Acts by attorneys, 114. 
 Acts of Parliament, 305. 
 Adjournment of court, 344. 
 Admission against interest, 11. 
 Adultery, 256. 
 Adversaries at law, 128. 
 Adverse party for advocate, 206. 
 Advocate, 417. 
 
 Advocate, adverse party as, 506. 
 "A friend i' the court," 244. 
 Agent, 161. 
 
 Agreement, articles of, 276. 
 Alias, 390. 
 Alien, 227. 
 
 Amercement by fine, 457. 
 Ancestors, 253. 
 
 Answer, 213. 
 
 Answering public laws, 387. 
 
 Antipathetic criminal, Iago, 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 to Sections. 
 
 Attestation by sight and heal- 
 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. 
 
 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. 
 
 E 
 
 Earnest to bind bargain, 150. 
 
 Eating flesh contrary to law, 239. 
 
 Ecclesiastics, Henry V's favor to- 
 ward, 250. 
 
 Ecclesiastics, laws against, 249. 
 
 Effect of error, 408. 
 
 Effect of legal precedent, 99. 
 
 Egress, right of, 8. 
 
 Election to act in given way, 416. 
 
 Elizabeth's plea of sanctuary, 
 311. 
 
 Encroachment on Prince's right, 
 427. 
 
 Endowment, 38. 
 
 Enfeoffment, 226. 
 
 Enfranchising one, 75. 
 
 Entailed 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. 
 Falstaff s commitment to prison, 
 
 247. 
 Fee, pleading for, 56. 
 Fee-simple, 9. 
 Fee-farm, kiss in, 367. 
 Fees, of prisoners, 138. 
 Felo de se, 415. 
 Felon in irons, 381. 
 Fighting in King's palace or 
 
 presence, 272. 
 Fine, 202. 
 
 Fine, amercement by, 457. 
 Fine and recovery, 9. 
 Forfeiters, 421. 
 Forfeiting mortgaged property, 
 
 511. 
 Forfeiture of lands, 110. 
 Forfeiture of limited lease, 510. 
 Forfeiture, plea of, 84. 
 Forgeries, 466. 
 Frailty of laws, 22. 
 Frankleyn, 422. 
 Fratricide, 470. 
 
 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 
 
 Iago, the cynic antipathetic 
 
 criminal, 482. 
 Iago's crime against Othello, 484. 
 Idealism the basis of Brutus' 
 
 crime, 400. 
 
518 
 
 INDEX. 
 
 References are 
 
 Identifying criminals by pic- 
 tures, 447. 
 
 Imaginary trial of Goneril, 452. 
 
 Impeachment, 117-189. 
 
 Impounding strays, 254. 
 
 Impressment for military serv- 
 ice, 361. 
 
 Improper conduct, exceptions to, 
 10. 
 
 Incest, 435. 
 
 Intra quatuor maria, child begot 
 when father not, 170. 
 
 In manner and form, 64. 
 
 Indemnity of war, 363. 
 
 Indenture, 180. 
 
 Indictment, 145. 
 
 Infamy, 236. 
 
 Infanticide, parent's right of, by 
 Athenian law, 55. 
 
 Inheritance, 66. 
 
 Inheritance, bastard's right of, 
 169. 
 
 Inheritance by next of blood, 492. 
 
 Inns of court, 241. 
 
 Instigation of Macbeth's crime, 
 160. 
 
 Insurrectionary bills, 248. 
 
 Inter-regnum, 301. 
 
 Intent distinguished from act, 35. 
 
 Interrogatories, 182. 
 
 Inventory, 346. 
 
 Invoking justice from Heaven, 
 430. 
 
 Issue before the court, 91. 
 
 Italian law against sale of poison, 
 462. 
 
 Jail, commitment to, 142. 
 Joint and corporate action, 375. 
 Jointure, 113. 
 Jourdemayn, case of Margery, 
 
 278. 
 
 to Sections. 
 
 Judge cannot right own cause, 
 
 . 487. 
 
 Judge, challenging prejudiced, 
 
 338. 
 Judgment applied to Judge, 441. 
 Judgment, plea for, 95. 
 Judgment, Portia's, on the bond, 
 
 100. 
 Judgment, unreversed, 4. 
 Judicial sentence, death by, 232. 
 Jurisdiction of Athenian law, 53. 
 Jurisdiction regal, 296. 
 Jury of heart's tenants, 507. 
 Jury system, frailty of, 22. 
 Justice abandoning earth, 431. 
 Justice, equality of, 31. 
 Justice feasting while widow 
 
 weeps, 499. 
 Justice, modesty of, 442. 
 Justice of Shylock's plea, 96. 
 Justice, plea for, 30. 
 Justice residing between right 
 
 and wrong, 360. 
 Justice, scales of, 52. 
 Justicer, 426. 
 Justification of one condemned 
 
 by law, 286. 
 
 K 
 
 Keeping the peace, 185. 
 
 "King can do no wrong," 406. 
 
 King, guardian of heirs of for- 
 tune, 116. 
 
 King's prerogative, 140. 
 
 King's presence, fighting in, 272. 
 
 King's right to prisoner under 
 military law, 217. 
 
 Killing in self-defense, 380. 
 
 Kiss in fee-farm, 367. 
 
 Label appended to deed, 461. 
 Laborers and mechanics, statutes 
 of, 399. 
 
INDEX. 
 
 519 
 
 References are 
 
 Lady Grey's suit for husband's 
 lands, 306. 
 
 Land held in common, 293. 
 
 Landed 'squire, 173. 
 
 Landlord, 195. 
 
 Lands, forfeiture of, 110. 
 
 Law, a gazing stock, when not 
 enforced, 32. 
 
 Law, adversaries at, 128. 
 
 Law, against eating flesh, 239. 
 
 Law and heraldry, 464. 
 
 Law, contrary to form of, 287. 
 
 Law, course of, 85. 
 
 Law, craving the, 97. 
 
 Law, cynic's views of, 383. 
 
 Law days of courts of inquiry, 
 483. 
 
 Law giver unable to enforce law, 
 488. 
 
 Law is strict, 382. 
 
 Law, jurisdiction of Athenian, 53. 
 
 Law, limitation of, 58. 
 
 Law no respector of persons, 246. 
 
 Law of children, 405. 
 
 Law of God and man, 313. 
 
 Law, penalty of, 61. 
 
 Law, pity the virtue of, 377. 
 
 Law, plunging into, 378. 
 
 Law, poor man's right in, 438. 
 
 Law, prostitution before, 24. 
 
 Law, standing for, 87. 
 
 Law, terms of, 19. 
 
 Law, time overthrows, 135. 
 
 Law, windy side of, 16. 
 
 Lawful act, 121. 
 
 Lawful killing, not murder, 434. 
 
 "Law's delay," 218. 
 
 Laws, frailty of, 22. 
 
 Laws of land service, 237. 
 
 Laws, protection of marital rela- 
 tion, 364. 
 
 Law's redress of wrongs, 184. 
 
 Laws, shaped by custom, 21. 
 
 to Sections. 
 
 Laws, that are dead, 20. 
 
 Lawyer's duty to understand 
 case, 419. 
 
 Lawyer's points, 147. 
 
 Lease, determination of, 504. 
 
 Lease, forfeiture of limited, 510. 
 
 Lease, tenement, 196. 
 
 Leaving property in use, 411. 
 
 Legitimacy of child born during 
 wedlock, 171. 
 
 Lent, law against eating flesh 
 during, 239. 
 
 Lent, sales of meat during, 294. 
 
 Letters-patent, 200. 
 
 Levitical law against niece mar- 
 rying uncle, 327. 
 
 Levying sums of money, 288. 
 
 Lex terra salica explained, 252. 
 
 Libelling the senate, 432. 
 
 Life tenure, sale of, 456. 
 
 Limitation of municipal law, 58. 
 
 Litigious peace, 439. 
 
 Livery, 206. 
 
 Loving against law and duty, 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. 
 
 O 
 
 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 criminals, 
 
 447. 
 Piercing statutes, 388. 
 Pillory, punishment by, 131 
 Pity the virtue of law, 377» 
 Plaintiff, 18. 
 Plea for judgment, 95. 
 
INDEX. 
 
 521 
 
 References are 
 
 Plea for justice, 30. 
 Plea for pardon, 26. 
 Plea of forfeiture, 84. 
 Pleaders, 393. 
 Pleading cause, 336. 
 Pleading false titles, 385. 
 Pleading for fee, 56. 
 Pleading for right in wilderness 
 
 without law, 494. 
 Pleas in abatement, 473. 
 Plunging into law, 378. 
 Poison, Italian law against sale 
 
 of, 462. 
 Poor man's right in law, 438. 
 Portia's judgment on the bond, 
 
 100. 
 Portia's plea for mercy, 93. 
 Possessed, 197. 
 Post, of sheriff, 13. 
 Praemunire, writ of, 348. 
 Praise by hearsay, 505. 
 Precedent, effect of legal, 99. 
 Pregnancy, condemned woman's 
 
 privilege of, 274. 
 Preliminary examination for bur. 
 
 glary, 48. 
 Preliminary hearing, 45. 
 Premises, 118. 
 Prerogative of King, 140. 
 Pressing to death, punishment \ 
 
 by, 40. 
 Primogeniture, 104. 
 Prince's right, encroachment on 
 
 427. 
 Prison, child born in, 141. 
 Prisoner, 157. 
 Prisoners' fees, 138. 
 Privileged man, 365. 
 Privity, 332. 
 Process, 396. 
 Proclamation, 266. 
 Proof, 11. 
 Proof of facts apparent, 428. 
 
 to Sections. 
 
 Proof required of Desdemona's 
 seduction, 479. 
 
 Proof of guilt beyond reason- 
 able doubt, 485. 
 
 Property, confiscation of, 1. 
 
 Prorogue, 413. 
 
 Prosecution for contempt, 433. 
 
 Prostitution before the law, 24. 
 
 Punishment by the pillory. 131. 
 
 Punishment by marriage to pros- 
 titute, 37. 
 
 Punishment by pressing to death, 
 40. 
 
 Punishment by stocks, 235. 
 
 Punishment, commutation of, 
 101. 
 
 Punishment for seduction, by 
 Venetian law, 27. 
 
 Purging impeachment, 463. 
 
 Purging one's self, 351. 
 
 Pursuivant, 279. 
 
 Q 
 
 Qualifications of constable, 42. 
 Quid pro quo, 273. 
 Quietus, 469. 
 Quillets of the law, 77. 
 
 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 to Sections. 
 
 Respondeat superior, not appli- 
 cable to king and subject, 261. 
 
 Retainers, 339. 
 
 Reversion, 193. 
 
 Rewards, 321. 
 
 Richard III an embryonic crim- 
 inal, 308. 
 
 Richard Ill's crimes prompted by 
 his isolation, 312. 
 
 Richard Ill's inherited criminal 
 instinct, 328. 
 
 Richard Ill's morbid vanity, 309. 
 
 Right of egress and regress, 8. 
 
 Right warring with right, 369. 
 
 Rightful plea for justice, 503. 
 
 Righting grand jury, 220. 
 
 Rigour of the law, 282. 
 
 Riot, 243. 
 
 Robbery, 224. 
 
 Rotten case, 242. 
 
 Royalties, 198. 
 
 S 
 
 Sanctuary, benefit of, 324. 
 Sanctuary, Elizabeth's plea of, 
 
 311. 
 Sale of life tenure, 456. 
 Sale of poison contrary to Italian 
 
 law, 462. 
 Sales of meat during lent, 294. 
 Salic law and Henry 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. 
 
 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 to Sections. 
 
 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 armis, 465. 
 
 Trial at law, 345. 
 
 Trial by battle, 191. 
 
 Trial by battle, equal rank in, 
 453. 
 
 Trial by comitia, 398. 
 
 Trial by eye and heart, 507. 
 
 Trial by manly combat, 49. 
 
 Trial day, 212. 
 
 Trial of Buckingham for treason, 
 334. 
 
 Tripartite agreements, 225. 
 
 Truant in the law, 267. 
 
 Trust from fiduciary relation, 
 
 162. 
 Truth, no slander to speak, 460. 
 Tybalt's death murder at 
 
 Romeo's hands, 459. 
 
 U 
 
 Under gage, 211. 
 Underwriting one, 366. 
 Uulawful intent, 122. 
 Unreversed judgment, 4. 
 Unwhipped crimes, 449. 
 Use, conveyance in, 102. 
 Use, leaving property in, 411. 
 Usurer, 83. 
 Usurpation, 176. 
 
 Vacations of court, 112. 
 Venetian law, against seduction, 
 
 27. 
 Venue and offense charged, 651. 
 Verdict, 192. 
 Verdict based on perjury, 352. 
 
 W 
 
 Wager contract, conditions of, 
 
 418. 
 Wards, heirs of fortune, kings, 
 
 116. 
 Warrant no protection against 
 
 murder, 319. 
 Warranty, 79. 
 Waste, 9. 
 
 Waste upon real estate, 194. 
 Wasting manors in military 
 
 preparations, 333. 
 Wedlock, legitimacy of child 
 
 born during, 171. 
 Wheel, death by the, 397. 
 
524 
 
 INDEX. 
 
 References are 
 
 "Whipped from tithing to tith- 
 ing," 451. 
 
 Wife's legal status, 455. 
 
 Wilderness without law, no right 
 in, 494. 
 
 Willfulness, negligence distin- 
 guished from, 137. 
 
 Windy side of the law, 16. 
 
 Witchcraft, 149. 
 
 Witness, oath of, 2. 
 
 Witness, packing, 134. 
 
 to Sections. 
 
 Witness to action, 420. 
 Witnesses, bawds not competent, 
 
 384. 
 Writ, extendi facias, 111. 
 Writ of praemunire, 348. 
 Written instrument, sealing, 81. 
 Wronger wronged by time, 501. 
 
 York's title to the crown of Eng- 
 land, 284. 
 
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