SHAKESPEAEE'S LEGAL MAXIMS.
 
 LONDON 
 
 PRINIF.T) BY SPOTTISWOODE AND CO. 
 
 NEW-STRF.ET FQl'ARE
 
 SHAKESPEARE'S LEGAL MAXIMS. 
 
 WILLIAM LOWES EUSHTON 
 
 CORKEbPONDIXG MEMBER OP THE EEBLi:N' SOCIETY FOR THE STUBT OF MODERN 
 LANGUAGES, A.N'I) AUTHOR OF " SHAKESPEAEE A LAWTER." 
 
 * * * * Juvat integTos accedere foiitcs 
 
 Atque haurire. Lucretius. 
 
 * * * * " It is plea^.^Ilt to handle 
 An untouched subject." 
 
 LONDON 
 
 LONGMAN, GREEN, LONGMAN, AND ROBERTS 
 
 1859 
 
 Price One ShUlinq.
 
 UNiVEUsrrv c :.^iNiA 
 
 SANTA i: - 
 
 NOTICE, 
 
 A Portion of this attempt to explain several obscure 
 passages in the works of William Shakespeare, has 
 been published amongst the transactions of " The 
 Berlin Society for the Study of Modern Languages," 
 in the " Archiv," edited by Ludwig Herrig. 
 
 A 3
 
 ^7« 
 
 SHAKESPEARE'S LEGAL MAXIMS- 
 
 " Qui genus humauimi ingenio supei-avit, et onineis 
 Restinxit, stellas exoi-tus uti aerius sol." 
 
 LucEETius, iii. 1056. 
 
 The lawyer, wheu he reads attentively the works of 
 William Shakespeare, may not be more surprised by 
 the poet's C(^rrect use of law terms, and intimate 
 acquaintance with legal customs and tenures and the 
 lex scripta, than by his extensive and profound know- 
 ledge of the maxims of the EngKsh law. 
 
 PoEiiA. "To offend, and judge, are distinct offices, 
 And of opposed natm-es." 
 
 Merclumt of Venice, Act 3, Scene 1. 
 
 QuEEX Katheeine. " I do believe. 
 
 Induced by potent circumstances, tbat 
 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 ; whom, yet once more. 
 I hold my most malicious foe, and think not 
 At aU a friend to truth." 
 
 Hmry VIII, Act 2. Seem- 4. 
 A 4
 
 8 
 
 Nemo debet esse judex in propria sua causa. ( 1 2 
 Eep. 113.) No man ought to be a judge in his own 
 cause. It is a fundamental rule in the administration 
 of justice that a man cannot be judge in a cause in 
 which he is interested (per Cur. 2 Stra. 1173) : nemo 
 sibi esse judex vel suis jus dicere debet. (C. 3. 5. 1.) 
 If a man will prescribe that if any cattle were upon 
 the demesnes of the manor, there doing damage, that 
 the lord of the manor for the time being hath used 
 to distrain them, and the distress to retain till fine 
 were made to him for the damages at his will, this 
 prescription is void ; because it is against reason 
 that if wrong be done any man, that he thereof 
 should be his own judge ; for by such way, if he had 
 damages but to the value of an halfpenny, he might 
 assess and have therefore one hundred pounds, 
 which should be against reason. And so such pre- 
 scription, or any other prescription used, if it be 
 against reason, this ought not, nor will not, be allowed 
 before judges : quia mains usus abolendus est : an 
 evil or invalid custom ought to be abolished. (Litt. s. 
 212.) It is also a maxim of the law of England, that 
 Aliquis non debet esse judex in propria causa, quiet 
 non potest esse judex et pars. (Co. Litt. 141 a.) 
 
 Olivia. " This practice hatli most shrewdly pass'd iipou thee ; 
 But, when we know the gi'onnds and authors of it, 
 Thou shalt be both the plaintiiFand the judge 
 Of thine own cause." 
 
 Twelfth Night, Act 5, Scene 1.
 
 11 
 
 CfiANMEE. " Ah, my good lord of Winchester, I thank you ; 
 
 You are always my good friend : if your will pass, 
 I shall both find your lordship judge and juror." 
 Henry VIII. Act 5, Scene 2. 
 
 Ad quccstionem facti non respondent judices, ad 
 qucestioneni legis non resjpondent juratores. (8 Rep. 
 308.) It is the office of the judge to instruct the 
 jury in points of law — of the jury to decide on mat- 
 ters of fact. It is the office of the judges to instruct 
 the grand assize or jury in points of law; for as the 
 grand assize or other jurors are triers of the matters 
 of fact, ad qiwestionsTn facti non respondent judices, 
 so, ad quoistionem juris non respondent juratores. 
 It is of the greatest consequence to the law of England 
 and to the subject that these powers of the judge and 
 jury be kept distinct, that the judge determine the 
 law, and the jury the fact; and if ever they come to 
 be confounded, it will prove the confusion and des- 
 truction of the law of England. (Rex v. Poole, Cas. 
 temp. Hardw. 28.) 
 
 Elizabeth. " What now, my son ? have I not ever said, 
 
 How that ambitious Constance would not cease, 
 
 Till she had kindled France and all the world 
 
 Upon the riulit and party of her son ? 
 
 This might have beeu prevented and made whole, 
 
 With very easy arguments of love ! 
 
 Which now the manage of two kingdoms must 
 
 With fearful bloody issue arbitrate." 
 
 King John. "Our strong possession, and our right for us."' 
 
 A 6
 
 12 
 
 Elizabeth. "Your strong possession, much more than your 
 right ; 
 Or else it must go wrong with you, and me : 
 So much my conscience whispers in your ear ; 
 Which none but heaven, and you, and I, shall 
 hear. 
 
 Acl 1, Scene 1. 
 
 In cequall jure melior est conditio possidentis. 
 (Plowd. 296.) Where the right is equal, the claim 
 of the party in possession shall prevail. The lowest 
 and most imperfect degree of title consists in the 
 mere naked possession, or actual occupation of the 
 estate ; without any apparent right, or any shadow or 
 pretence of right, to hold and continue such posses- 
 sion. This may happen when one man invades the 
 possession of another, and by force or surprise turns 
 him out of the occupation of his lands; which is 
 termed a desseisin, being a deprivation of that actual 
 seisin, or corporal freehold of the lands, which the 
 tenant before enjoyed. (2 Bla. Com. 195; 1 Inst. 
 345.) Or it may happen that after the death of the 
 ancestor and before the entry of the heir, or after the 
 death of a particular tenant and before the entry of 
 him in remainder or reversion, a stranger may con- 
 trive to get possession of the vacant land, and hold 
 out him that had a right to enter. In such cases the 
 wrong-doer has only a mere naked possession, which 
 the rightful owner may put an end to by a variety of 
 legal remedies. But until some act be done by the 
 rightful owner to divest this possession and assert his
 
 13 
 
 title, such actual possession is jjrima facie evidence 
 of a legal title in the possessor ; and it may by length 
 of time, and negligence of him who hath the right, 
 by degrees ripen into a perfect and indefeasible title. 
 (2 Bla. Com. 196.) King John seems to refer to this 
 maxim when he says, 
 
 " Oui' sti'ong possession, and our right for us," 
 
 but Elizabeth says, 
 
 " Your strong possession, much more than yom- right," 
 
 because John was not in cequali jure with Arthur, 
 but he was a wrong-doer, having merely a naked 
 possession ; for after the death of King Eichard I. 
 John occupied the throne in defiance of the right of 
 his nephew Arthur, who was the son of John's elder 
 brother Greoffry. 
 
 Hamlet. " Farewell, dear mother." 
 
 King. " Thy loving father, Hamlet." 
 
 Hamlet. " 3Iy mother : father and mother is man and wife ; 
 Man and wife is one flesh ; and so, my mother." 
 
 Act 4, Scene 3. 
 
 Vir et uxor sunt quasi unlca jpersona, quia caro 
 una, et sanguis unus. (Bracton, lib. 5, Tract. 5, cap. 
 25.) Man and wife are as one person, because they 
 are one flesh and one blood. A man may not grant 
 nor give his tenements to his wife, during the cover- 
 ture, for that his wife and he be but one person in 
 
 A 7
 
 14 
 
 law. (Litt. s. 168.) If a joint estate be made of 
 land to a husband and wife and to a third person, in 
 this case the husband and mfe have in law in their 
 right but the moiety, and the third person shall have 
 as much as the husband and the "wife, viz. the other 
 moiety, &c. And the cause is, for that the husband 
 and wife are but one person in law, and are in like 
 case as if an estate be made to two joint tenants, 
 where the one hath by force of the jointure the one 
 moiety in law, and the other the other moiety, &c. 
 (Litt. s. 221): for the husband and wife are accounted 
 to be but one person in law, duce anim/B in came 
 una, (Lex divina, and see 6 Kep. 4.) 
 
 Falstaff. "Of wliat quality was your love, then ?" 
 roRD. " Like a fair house, built upon another man's ground ; 
 so that I have lost my edifice, by mistaking the place where I 
 erected it." — Merry Wives of Windsor, Act 2, Scene 2. 
 
 !Mrs. QtncKLT, ''Alas the day ! good heart that was not her 
 fault ; she does so take on with the men ; they mistook their 
 erection." 
 
 Falstaff. " So did I mine, to build upon a foolish woman's 
 promise." — Merry Wives of Windsor, Act 3, Scene 6. 
 
 Quicquid 'plantatiir solo solo cedit. (Wentw. Off, 
 Ex. 14th ed. 145.) Whatever is afl&xed to the soil 
 belongs to the soil. It is a general and a very ancient 
 rule of law that whatever is affixed to the soil be- 
 comes, in contemplation of law, a part of the soil, and 
 is consequently subject to the same rights of property 
 as the soil itself. (Woodfall's Landlord and Tenant,
 
 15 
 
 otli ed. 447.) The ancient Common Law, regarding 
 land as of far more consequence than any chattel 
 which could be fixed to it, always considered every- 
 thing attached to the land as part of the land. (4 
 Eep. 64 a ; 7 Lord Kaymond, 738 ; Mackintosh v. 
 Trotter, 3 Mee. & Wei. 184,186; Williams on Ex- 
 ecutors, pt. 2, bk. 2, ch. 3, s. 2.) Hence it follows 
 that houses themselves, which consist of an aggregate 
 of chattels personal, (namely, timber, bricks, &c.), 
 fixed to the land, were regarded as land, and passed 
 by a conveyance of the land without the necessity of 
 express mention ; and this is the case at the present 
 time. (Williams, P. P. 3rd ed. p. 13.) So if a man 
 eject another from land, and afterwards build upon 
 it, the building belongs to the owner of the ground 
 on which it is built, according to the principle jEdi- 
 ficatmn solo solo cecUt. But where a man, supposing 
 that he has a good title to an estate, builds upon the 
 land with the knowledge of the real owner, who suf- 
 fers the erections to be made, without giving any 
 notice of his claim, the Com-t of Chancery will compel 
 him, in a suit brought for recovery of the land, to 
 make due allowance and compensation for such im- 
 provements. (Broom, Max.) Ford evidently refers 
 to this maxim, and Falstaff probably intends this 
 much to be understood, that he committed as great 
 a mistake, by building upon a foolish woman's pro- 
 mise, as they make who build upon another man's 
 ground. 
 
 A 8
 
 16 
 
 Angeio. " Tlie law hatli not been dead, thoug-li it hath 
 slept." 
 
 Measure for Measure, Act 2, Scene 3. 
 
 Dormiunt aliquando leges, moriuntur nunquam. 
 (2 Inst. 161.) The laws sometimes sleep, but they 
 never die. Although it was a maxim of the Civil Law 
 that as laws might be established by custom, they 
 could likewise become obsolete by desuetude, or be 
 abrogated by contrary usage, ea vero quce ipsa sibi 
 quceque civitas constituit scepe niutari solent vel 
 tacito consensu populi vel alia posted lege lata 
 (I. 1. 2. 11. ; Irving, Civil Law, 4th ed., 123) : and by 
 the law of Scotland a statute is said to lose its force 
 by desuetude (Stair, Macdoual, Wallace), if it has 
 not been in execution for sixty years, and according 
 to some Scotch lawyers for a hundred years ; and a 
 distinction is made between statutes which are as it 
 were half obsolete and those in viridi ohservantid, 
 yet by the law of England every statute continues 
 in force until it is repealed by a subsequent Act of 
 Parliament. Lex Anglian sine parliamento TnittaH 
 non potest (2 Inst. 619), for nothing is so agreeable 
 to natural equity as that everything should be dis- 
 solved by the same means which made it binding. 
 Nihil tarn conveniens est naturali CBquitati quam 
 unumquodque dissolvi eo ligamine quo ligatum 
 est (2 Inst. 360.) The statutes can only be altered 
 or repealed by the same authority by which they 
 were made — jura eodem modo destitimoitur quo con-
 
 17 
 
 stituuntur (Dwarr. Stats. 672\ and. eodem ligamine 
 quo ligatum estdissolvltiir. (Co. Litt. 212 b.) 
 
 WoxsEY. " That seal 
 
 You ask with such a violence, the Mng, 
 
 (Mine, and your master,) with his oion hand gave 
 
 me : 
 Bade me enjoy it, with the place and honour's, 
 During my life ; and, to confirm his goodness, 
 Tied it by letters patent : now, who'U take it ?" 
 
 StrRHEY. '' The king, that gave it." 
 
 WoLSET. '' It must be himself then." 
 
 Henry VIII. Act 3, Scene 2. 
 
 The Lord Chancellor (a cancellando, from his 
 power to cancel Letters Patent, Heing the highest 
 point of his jurisdiction^ or Lord Keeper, is the chief 
 judge in the extraordinary Court of Equity, as well 
 as in the ordinary Coui't of Common Law. (4 Inst. 
 79, 82, 88; Wood's Inst. 2nd ed. pp. 459, 460.) 
 He is not made by Letters Patent, but by the deli- 
 very of the Great or Broad Seal to him, and by 
 taking an oath to serve the king and his people 
 faithfully in the office of Lord Chancellor. (4 Inst. 
 87.) He is made Lord Chancellor of England, or 
 Lord Keeper of the Grreat Seal, per traditioneno 
 magni sigilli sibi per dominum regem, and by tak- 
 ing his oath, forma cancellarium constittiendi 
 regnante Henrico secundo fuit appendendo mag- 
 num Anglice sigillum ad collum cancellarii electi. 
 (Camden, p. 131.) Thus the delivery of the King's 
 Seal, or the taking it away (alluded to by Shakes- 
 
 A 9
 
 18 
 
 peare in this passage), is the ceremony used in creat- 
 ing or unmaking a chancellor. Some have gotten it 
 by Letters Patent, at will, (35 H. VI. 3. b. of Winch., 
 1 Hen. VI. nu. 16.) and one for term of his life 
 (Cardinal Wolsey) ; but it was holden void, because 
 an ancient office must be granted as it hath been 
 accustomed. (4 Inst. 87.) 
 
 Antipholus E. " What, will you murder me ? Thou, gaoler, 
 thou, 
 
 I am thy prisoner : wilt thou suffer them 
 
 To make a rescue ?" 
 Officer. " Masters, let him go ; 
 
 He is my prisoner, and you shall not have him." 
 Pinch. "■ Go, bind this man, for he is frantick too." 
 
 Adriana. -'What wilt thou do, thou peevish officer ? 
 
 Hast thou delight to see a wretched man 
 
 Do outrage and displeasm-e to himself?" 
 Officer. " He is my prisoner : if I let him go, 
 
 The debt he owes, will be required of me." 
 
 If a sheriff or gaoler suffers a prisoner, who is taken 
 upon mesne process (that is, during the pendency of 
 a suit), to escape, he is liable to an action on the case. 
 (Cro. Eliz. 625.) But if after judgment a gaoler or a 
 sheriff permit a debtor to escape, who is charged in 
 execution for a certain sum, the debt immediately 
 becomes his own, and he is compellable by an action 
 of debt, being for a sum liquidated and ascertained, to 
 satisfy the creditor his whole demand ; which doctrine 
 is grounded on the equity of the Statute of Westmin- 
 ster 2nd, 13 Edw. I. c. 1], and 1 Rich. II. c. 12.
 
 19 
 
 (Bro. Abr. t. parliament. 192 ; Inst. 382; 3 Bla. Com. 
 165.) Ubi jus ibi remedium, (1 T. K. 512.) There 
 is no wrong without a remedy. Jus, in the sense 
 in which it is used in this maxim, signifies " the legal 
 authority to do or to demand something." (Mack- 
 field, Civ. Law. 6.) Remediwni may be defined to be 
 the right of action, or the means given by law for the 
 recovery of a right, and, according to this maxim, 
 whenever the law gives anything, it gives a remedy 
 for the same : lex semper dabit remedium. (Jacob, 
 Law Die, title " Remedy ;' Bac. Abr., Actions in ge- 
 neral ; Broom, Max.) Every injury to a legal right 
 necessarily imports a damage in the nature of it, 
 though there be no pecuniary loss. (Per Holt, C. J., 
 Ashby V. White, 2 Lord Raymond.) Thus where a 
 prisoner is in execution on final process, the creditor 
 has a right to the body of his debtor every hour till 
 the debt is paid ; and an escape of the debtor, for 
 ever so short a time, is necessarily a damage to him, 
 and the action for an escape lies. (Williams v. jMos- 
 tyn, 4 M. & W. 153 ; Wylie v. Birch, 4 Qu. B. 566, 
 557 ; Clifton v. Hooper, 6 Qu. B. 468.) 
 
 York. " I took an oath, that he should quietly rei<m.'" 
 
 Edward. " But, for a kingdom, any oath may be broken : 
 I'd break a thousand oaths, to reign one year." 
 
 Richard. " No ; God forbid, your graee should be forsworn." 
 
 York. " I shall be, if I claim by open war." 
 
 Richard. " I'll prove the contrary, if you'll hear me speak." 
 
 York. " Thou canst not, son ; it is impossible." 
 
 Richard. " Aji oath is of no moment, being not took
 
 20 
 
 Before a true and lawful maoistrate, 
 That hath authority over him that swears : 
 Ilany had none, but did usiu-p the place ; 
 Then, seeing 'twas he that made you to depose, 
 Your oath, my lord, is vain and frivolous." 
 
 III. Henry VI., Act 1, Scene 2. 
 
 An oath is an affirmation or denial of anything he- 
 fore one that hath authority to administer the same, 
 calling Grod to witness that his testimony is true. (3 
 Inst. 165. c. 74.) Sacramentum, habet in se tres 
 comites, veritatem, justitiaTn et judicium : Veritas 
 hahenda estinjurato ; justitia et judicium in judice. 
 (Bracton, 1. 4, f. 186.) Four sorts of oaths have been 
 enumerated, viz., JuramentuTn 'promissionis, where 
 an oath is taken to do, or not to do such a thing ; (it 
 appears that York had taken an oath of this descrip- 
 tion) : Juramentum purgationis, which is where a 
 person is charged with any matter by Bill in Equity : 
 Juramentum probationis, where one is produced as 
 a witness to prove or disprove a thing ; and Juramen- 
 tum triationis, where one is sworn to try the issue, 
 such as a juror. The oath must be lawful, allowed 
 by the Common Law, or some Act of Parliament : so 
 Salisbury says — 
 
 " It is great sin, to swear xmto 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 chastitj'. 
 To reave the orphan of his patrimony,
 
 21 
 
 To wring the widow from her customed right ; 
 And have no other reason for this wrong, 
 But that he was boimd by a solemn oath ?" 
 
 //. Henry VI., Act 5, Scene 1. 
 
 And it must be taken before one that hath authority ; 
 not before a person acting in a private capacity, or 
 pretending to have authority where he hath none ; 
 nor by one that goes beyond the authority which was 
 granted. For such false oaths cannot amount to per- 
 jury in law, because they are of no validity, being co- 
 ram non judice. (3 Inst. 165; 4 Inst. 278, 279; 
 2 Roll. Abr. 257 ; Wood's Inst., 2nd ed., pp. 411, 412.) 
 
 BeaTjTOEt, "The commons hast thou rack'd; the clergy's 
 bags 
 iVre lank and lean with thy extortions.'' 
 SoMEESET. " Thy sumptuous buildings, and thy wife's attire, 
 
 Plave cost a mass of public treasury." 
 BtrCKTNGHAM. " Thy cruelty in execution 
 
 Upon offenders, hath exceeded law. 
 And left thee to the mercy of the law." 
 
 II. Henry VI., Act 1, Scaie 3. 
 
 Executio est executio juris secundum judicium. 
 (3 Inst. 212.) It is a maxim of the law of England, 
 that the execution must be according to the judgment, 
 et qucu in curia nostra rite acta sunt, debif execu- 
 tioni demandari debent : and for express authority, 
 non licet felonem pro felonia decollare. In case of 
 high treason, beheading is part of the judgment, 
 and therefore the King may pardon all the rest saving 
 beheading, as is usually done in case of nobility.
 
 22 
 
 But if a man being attainted of felony be beheaded, 
 it is no execution of the judgment, because the judg- 
 ment is, that he be hanged until he be dead : in this 
 case the judgment doth belong to the judge, and he 
 cannot alter it ; the execution belongs to the sheriff, 
 &c., and he cannot alter it. And if the execution 
 might be altered in this case from hanging to be- 
 heading, by the same reason it might be altered to 
 burning, stoning to death, &c. (3 Inst. 211.) It is 
 worthy of notice that Shakespeare seems to have 
 been well aware of the distinct offices of judge and 
 executioner, for he makes Guiderius, in speaking of 
 Cloten, sa}'^, 
 
 " Why slioiild we be tender, 
 To let an arrogant piece of flesh threat us ; '^ 
 
 Play judge and executioner, all himself? " 
 
 Cymheline, Act 4, Scene 2. 
 
 If an officer beheads one who is adjudged to be 
 hanged, or vice versa, it is murder : (1 Hale, P. C. 
 494; 1 Hawk. P. C. c. 28, ss. 11, 12, 17, 18), for he 
 is merely ministerial, and therefore only justified when 
 he acts under the authority and compulsion of the 
 law ; but if a sheriff substitutes one kind of death for 
 another, he then acts by his own authority, which 
 does not extend to the commission of homicide. 
 (4 Bla. Com. 179.) If the sheriff, or other proper 
 officer, alters the execution or any other doth execute 
 the offender, or if he is slain without authority of law, 
 it is felony, and the law implies malice. (Wood's
 
 23 
 
 Inst., 2nd ed., p. 662.) So Clarence says to the mur- 
 derers hired by Gl ester, 
 
 " Ai"e you call'd fortli from out a world of men 
 To slay the mnocent ? What is my offence ? 
 "WTiere is the evidence that doth accuse me ? 
 AMiat lawful quest have given their verdict up 
 Unto the frowning judge ? or who pronounced 
 The bitter sentence of poor Clarence' death ? 
 Before I be convict by course of law, 
 To threaten me with death is most unlawful." 
 
 Richard III., Act 1, Scene 4. 
 
 To conclude this point : Judiciuno est legibus, non 
 exemplis, (4 Rep. 33), and Judicium est juris dictum 
 and executio est executio juris secundum judicium. 
 (3 Inst. 211.) Buckingham may also refer to 
 (iloster's cruelty in making the law an instrument 
 of oppression or extortion and the liability thereby 
 incurred, for Executio juris non hahet injuriam. 
 (2 Inst. 481 ; 1 Inst. 289 a.) The law in its executive 
 capacity will not work a wrong. If an individual, 
 under colour of the law, does an illegal act, or if he 
 abuses the process of the court to make it an instru- 
 ment of oppression or extortion, this is a fraud upon 
 the law, by the commission of which liability will be 
 incurred. 
 
 Claudio, " Fellow, why dost thou show me thus to the world ? 
 
 Bear me to prison, where I am committed." 
 Provost. " I do it not in e-vil disposition. 
 
 But from lord Angelo, by special charge." 
 
 Ileasure for Measure, Act 1, Scene 3.
 
 24 
 
 Qui jussii judicis aliquod fecerit non vicletur 
 dolo Tnalo fecisse quia parere necesse est. (10 Eep. 
 70, 76.) Where a man does anything by command 
 of a judge, the law will not consider that he acted 
 from any wrongful motive, because it was necessary 
 for him to comply with the orders of the judge. In 
 26 Ed. III. 7. 70. it is taken for a maxim, that the 
 thing which an officer doth by warrant or command 
 of a court, cannot be said to be against the peace : 
 and Doct. and Stud. 150, the king's officers are bound 
 to execute the king's writs at their peril. (10 Eep. 70.) 
 When a court has jurisdiction of the cause, and pro- 
 ceeds inverso ordine, or erroneously, no action lies 
 against the party who sues, or the officer or minister 
 of the court who executes the precept or process of 
 the court. But when the court has no jurisdiction of 
 the cause, then the whole proceeding is coram non 
 judice, and actions will lie against them without any 
 regard of the precept or process, for it is not neces- 
 sary to obey him who is not a judge of the cause, no 
 more than it is to obey a mere stranger, for the rule 
 is, judicium a non suo judice datum nullius est 
 momenti. (10 Eep. 76.) 
 
 Lady MACBEin. " TVTiat need we fear wlio knows it, when 
 none can call oiu' power to account?" — Macbeth, Act 5, Scene 1. 
 
 LEAJi. '■'■ No, they cannot touch me for couiing ; 
 I am the king- himself! " 
 
 Lear, Act 4, Scene 6.
 
 25 
 
 GoNEEii. " Say, if I do ; the laws are mine, not thine ; 
 Who shall aiTaign me for 't ? " 
 
 Lear, Act 5, Scene 3. 
 
 Lady Macbeth, Lear and Groneril seem to refer to 
 the ancient and fundamental principle of the English 
 constitution, that the king can do no wrong. Rex 
 non potest peccare. (2 Roll. E. 304; Jenk. Cent., 9, 
 308.) 
 
 Duke. "He dies for Claudio's death." 
 
 Isabella. '' Most boimteous sir, [Kneelinff.'] 
 
 Look, if it please you, on this man condemn'd, 
 
 As if my brother liv'd : I partly think 
 
 A due sincerity govern'd his deeds 
 
 Till he did look on me ; since it is so, 
 
 Let him not die : 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 perish'd by the way : thoughts are no subjects ; 
 
 Intents but merely thoughts." 
 
 Measure for Measure, Act 5, Scene 1. 
 
 An evil intention is not punishable equally with the 
 fact ; Crim en non contrahltur nisi nocendi voluntas 
 intercedit : (Bracton, lib. cap. 4; Wood's Inst., 2nd ed., 
 p. 340), except in treason, when the maxim voluntas 
 repiitatiir pro facto (3 Inst. 5, 69), the will is taken 
 for the deed, is said to apply to its full extent. It is 
 a rule laid down by Lord Mansfield, said to comprise 
 all the principles of previous decisions in similar 
 cases (per Lawrence, J., Eex v. Higgins, 2 East, 21),
 
 26 
 
 that so long as an act rests in bare intention, it is not 
 punishable by the law of England, — so Ulpian says, 
 Cogitationes pcenam Thermo patitur (D.48, 19, 18), and 
 Montesquieu, Les lois ne se chargent de punir que 
 les actioTis exterieurs, — but when an act is done, the 
 law judges not only of the act itself, but of the intent 
 with which it was done. 
 
 Aktgelo. " What's open made to justice, 
 
 Tliat justice seizes." 
 
 Measure for Measure, Act 2, Scene 1. 
 
 And if the act be accompanied with an unlawful and 
 malicious intent, though in itself the act would other- 
 wise have been innocent, yet, the intent being criminal, 
 the act likewise becomes criminal and punishable. 
 (Eex V. Scofield, 2 East, P. C. 1028.) Ko7i officit 
 conatus, nisi sequitur effectus (6 Eep. 42 ; Wood's 
 Inst., 2d ed., p. 340) : for it is a principle of natural 
 justice and of our law that the intent and the act must 
 both concur to constitute the crime. (Lord Kenyon, 
 7 T. E. 514.) But where one has the use of his 
 reason, and is at liberty, his endeavour to commit a 
 felony, as to rob, &c., is punishable, though not to 
 that degree as if the felony and robbery, &c., had 
 been actually committed. For in such cases voluntas 
 'jfion reputabitur pro facto, the will shall not be taken 
 for the deed. (3 Inst. 69 ; 1 1 Eep. 98.) 
 
 Hamlet. " Give me your pardon, sir : I have done you wrong ; 
 But pardon it, as you are a gentleman. 
 This presence knows, and you must needs have heard.
 
 27 
 
 How I am punisli'd with a sore distraction. 
 
 What I have done, 
 
 That might yom* nature, honour, and exception, 
 
 Roughly awake, I here proclaim was madness. 
 
 Was 't Hamlet wrong'd Laertes ? Never, Hamlet : 
 
 If Hamlet from himself be ta'en away, 
 
 And, when he's not himself, does wrong Laertes, 
 
 Then Hamlet does it not ; Hamlet denies it." 
 
 In all crimes there must be an e\dl disposition ; a 
 mere mistake is not punishable ; and those that are to 
 be esteemed guilty of any offences must have the use 
 of their reason, and be at their own disposal or liberty 
 (Wood's Inst., 2d ed., p. 340,339): for Actus 7wn 
 facit reum nisi mens sit rea (3 Inst. 107), — the act 
 does not make a man guilty unless his intention were 
 guilty. Moreover Hamlet says, 
 
 "Who does it then ? His madness : if 't be so, 
 Hamlet is of the faction that is wrong'd ; 
 His madness is poor Hamlet's enemy." 
 
 And in criminal cases, idiots and lunatics are not 
 chargeable for their own acts, if committed at a time 
 when they are non compos mentis, for it is a maxim 
 of the law of England that fuHosus solo furore 
 puniatur, — a madman is only punished by his mad- 
 ness. (Co. Litt. 247 b;Bla. Com. 24, 25.) So Ham- 
 let says he is of the faction that is wrong'd : and he 
 seems to refer, not only to the maxim that the act 
 does not make a man guilty unless his intention were 
 guilty, but afterwards, in the same passage, to the 
 kind of homicide to which it is applicable :
 
 28 
 
 I, " Sir, in this audience, 
 
 Let my disclaiming from a purposed evil, 
 Free me so far in your most generous thoughts, 
 That I have shot my arrow o'er the house 
 And hurt my brother." 
 
 Hamlet, Act 5, Scene 2. 
 
 viz., homicide per infortunium, or by misadventure*, 
 Avhich is where a man, doing a lawful act, without any 
 intention of hurt, by accident kills another ; as, for 
 instance, where a man is working with a hatchet, and 
 the head by accident flies off and kills a bystander. 
 So Bracton says, De anvputatore arhorura, qui cum 
 ramum projiceret, inscius occidit transeuntem : ant 
 cum. quis pilaTYi percusserit, &c. ex cujus ictu occisus 
 est, tales de homAcidio non tenentur (lib. 3. fo. 136 b.). 
 If a man shooting at butts or a target, by accident 
 kill a bystander, it is misadventure (1 Hale, 472, 475, 
 380) ; but this must be understood of cases where a 
 proper precaution to prevent accidents has been taken, 
 for if the target be placed near a highway or path, 
 where persons are in the habit of passing, the killing 
 would probably be deemed manslaughter. 
 
 Camillo. " Have you thought on 
 
 A place, whereto you'll go ?" 
 Floeizel. " Not any yet : 
 
 But as the unthotight-on acddmvt is g,uilty 
 
 * Homicide (from the Latin homicidium ; homo, a man, and 
 ceedo, to strike, or kill) signifies the killing of a human creature, 
 and it is of three kinds, justifiable, excusable, and felonious.
 
 29 
 
 7o tohat we wildly do ; so we profess 
 Om'selves to be tlie slaves of chance, and flies 
 Of every wind that blows." 
 
 Winter s Tale, Act 4, Scene 3. 
 
 If the act be unlawful, it is murder. As if A, 
 meaning to steal a deer in the park of B., shootetli 
 at the deer, and by the glance of the arrow killeth a 
 boy that is hidden in a bush, this is murder; for 
 that the act was unlawful, although A. had no intent 
 to hurt the boy, nor knew not of him. Thus if B., 
 the owner of the park, had shot his own deer, and 
 without any ill intent had killed the boy by the 
 glance of his arrow, this had been homicide by mis- 
 adventure, and no felony. So if one shoot at any 
 wild fowl upon a tree, and the arrow killeth any 
 reasonable creature afar off, ^^dthout any evil intent 
 in him, this is 'per infortuniuin : for it was not un- 
 lawful to shoot at the wild fowl ; but if he had shot 
 at a cock or a hen, or any tame fowl of another 
 man's, and the arrow by mischance had killed a 
 man, this had been miu-der, for the act was unlawful. 
 If a man knomng that man}^ people come in the 
 street from a sermon, throw a stone over a wall, 
 intending only to fear them or to give them a light 
 hint, and thereupon one is killed, this is murder ; for 
 he had an ill intent, though that intent extended not 
 to death, and though he knew not the party slain. 
 (Marlbr. ca. 25. ; 3 Inst. 56, 57.) All crimes have 
 their conception in a corrupt intent, and have their
 
 30 
 
 consummation and issuing in some particular fact, 
 which, though it be not the fact at which the in- 
 tention of the malefactor levelled, yet the law giveth 
 him no advantage of the error, if another particular 
 ensue of as high a nature. (Lord Bacon's Max. reg. 
 15.) As if A. having malice to B. strikes at him, and 
 misseth him and kills C, this is mm'der in A. (9 Rep. 
 81 ; H. P. C. 50.) So Bracton says. Si quis unmn 
 percusseHt, cum, alium percutere vellet, in felonia 
 tenetur (lib. 3, fol. 155.) And if one lays poison to 
 kill B., and C. takes it and dies in consequence, this 
 is murder in him that laid the poison : for. In crim- 
 inalibus sufficit geiieralis inalitia intentionis cunt 
 facto paris gradus. (Bacon, Max. 65.) The malice 
 intended to one makes the accidental death of 
 another to be murder. (Wood's Inst., 2nd ed., 353.) 
 
 HiTBEET. " Stand back, Lord Salisbury ; stand back, I say ; 
 By heaven I think my sword's as sharp as yonrs. 
 I wovdd not have you, Lord, forget yourself, 
 Nor tempt the danger of my true defence, . 
 Lest I, by marking of your rage, forget 
 Your work, your greatness, and nobility." 
 Bigot. " Out, dimghill ! darest thou brave a nobleman ?" 
 
 HuBEKT. " Not for my life ; but yet I dare defend 
 My innocent life against an Emperor." 
 
 Ki?it/ John, Act 4, Scetie 2. 
 
 Excusable homicide is se defendenclo, or where one 
 has no other possible means of preserving his own 
 life than by killing the person who reduces him to 
 such a necessity : for, Vim vi repellere licet, modo
 
 31 
 
 fiat, moderamine inculpatce tutelce, non ad sii- 
 niendam vindictami, sed ad jpro'ptdsandarti in- 
 jtivium. (1 Inst. 162 a; Wood's Inst., 2nd ed., 359.) 
 
 Alcibiades. " Who cannot condemn rashness in cold blood ? 
 To kill, I gTant, is sin's extremest gust ; 
 But, in defence, by mercy, 'tis most just." 
 
 Timon of Athens, Act 3, Scene 5. 
 
 It is said that it must be a killing upon an inevit- 
 able necessity ; but necessity always implies that the 
 act was inevitable, or that it could not have been 
 otherwise. The party assaulted is not to be excused, 
 unless he gives back to the wall, hedge, river, &c., 
 beyond which he cannot go, before he kills the other. 
 But if A. assault B. so fiercely and violently, and in 
 such a place, and in such manner, as if B. should 
 give back, he should be in danger of his life, he may 
 in this case defend himself; and if in that defence 
 he killeth A., it is se defendendo, because it is not 
 done felleo animo : for the rule is, when he doth it 
 in his own defence, upon any inevitable cause. 
 Quod quis oh tutelani corporis swi fecerit, jure id 
 feclsse videtur. (H. P. C. 41, 42; 3 Inst. 55, 56.) 
 What any one may have done for the protection of 
 his person, is considered to have been done by law.
 
 32 
 
 SCENE l.—A Churchyard. 
 Enter Two Clowns, toith Spades, 8,-c. 
 
 1 Clown. " Is she to be bitried in christian burial, that wil- 
 fully seeks her own salvation ?" 
 
 2 Clown. ^' I tell thee, she is ; therefore make her grave 
 straight : the crowner hath sate on her, and finds it christian 
 bm-ial." 
 
 1 Clown. " How can that be, unless she drowned herself in 
 her own defence ? " 
 
 2 CLOvra^. " Why, 'tis found so." 
 
 1 Clown. " 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 
 perfoi-m : Ai-gal, she drowned herself wittingly." 
 
 2 Clown. " Nay, but hear you, goodman delver." 
 
 1 Clown. " 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 di-own him, he does not drown him- 
 self: Argal, he, that is not guilty of his own death, shorttos 
 not his own life." 
 
 2 Clown. "But is this law ? " 
 
 1 Clown. " Ay, marry is't ; crowner's-quest law." — Hamlet, 
 Act 5. 
 
 It seems that Shakespeare has made the First Clown 
 confound a felo de se, or one who is guilty of self- 
 murder, with a person who commits homicide se 
 defendendo, in his own defence, or, as he miscalls it, se 
 offendendo ; for, in answer to the Second Clown's assur- 
 ance that *' the crowner hath sate on her, and finds it 
 christian burial," he says, " How can that be unless
 
 33 
 
 she drowned herself in her own defence? ^^ This 
 is also apparent from his reasoning, which, although 
 it may appear absurd, is good law ; for he evidently 
 means, that if the water comes to a man and drowns 
 him, not " wittingly," but against his inclination, he 
 is as innocent of suicide as that man is innocent of 
 murder who, se defendendo, in his own defence, kills 
 another who felleo animo presses upon him. And 
 so the crowner found it " christian burial ; " for al- 
 though the " churlish priest " tells Laertes that " her 
 death Avas doubtfid," yet the Queen says, 
 
 " There on the pendent bonghs her coronet weeds 
 Clambering- to hang, an en-vdous sliver broke ; 
 "WTien down her weedy trophies, and herself, 
 Fell in the weeping brook." 
 
 And although, according to this account, the water 
 cannot be said to come to Ophelia, it appears that 
 she was drowned, not " wittingly," but against her 
 inclination. Suicides were not entitled to what is 
 called " christian biu-ial," for it was formerly the 
 custom to drive a stake through the body of one who 
 had been guilty of self-murder, and to bury it in the 
 highway ; but this brutal law and ignominious burial 
 has been altered by the 4 Greo. IV. c. 52, which 
 directs that a person felo de se shall be buried Avith- 
 out any stake driven through the body, privately, in 
 a churchyard, within twenty-four hours from the 
 finding of the inquisition, and between the hours of
 
 34 
 
 nine and twelve at night ; but this statute does not 
 authorise the performance of the rites of christian 
 burial. 
 
 The evidence of Shakespeare's legal knowledge 
 hereinbefore contained, is in addition to that which 
 I, some time since, submitted to the consideration of 
 the public ; and the reader may consider that many, 
 if not all, of the passages I have selected, contain 
 most unmistakable allusions to the maxims of the 
 English law. 
 
 THE END. 
 
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