diff options
Diffstat (limited to '77514-0.txt')
| -rw-r--r-- | 77514-0.txt | 1311 |
1 files changed, 1311 insertions, 0 deletions
diff --git a/77514-0.txt b/77514-0.txt new file mode 100644 index 0000000..b208f46 --- /dev/null +++ b/77514-0.txt @@ -0,0 +1,1311 @@ +*** START OF THE PROJECT GUTENBERG EBOOK 77514 *** + + + + +SHAKESPEARE’S LEGAL MAXIMS. + + + + + SHAKESPEARE’S LEGAL + MAXIMS. + + BY + WILLIAM LOWES RUSHTON, + OF GRAY’S INN, BARRISTER-AT-LAW. + + Corresponding Member of the Berlin Society for the Study of + Modern Languages; Corresponding Member of the State Historical + Society of Wisconsin, U.S.A.; Corresponding Member of the + Manchester Shakespeare Society; Author of ‘Shakespeare a + Lawyer,’ ‘Shakespeare Illustrated by Old Authors,’ + ‘Shakespeare Illustrated by the Lex Scripta,’ + ‘Shakespeare’s Testamentary Language,’ + ‘Shakespeare’s Euphuism,’ ‘Shakespeare + an Archer,’ &c. + + _Juvat integros accedere fontes atque haurire._ + + LUCRETIUS. + + _It is pleasant to handle an untouched subject._ + + HENRY FIELDING. + + LIVERPOOL: + HENRY YOUNG & SONS, + 1907. + + + + +NOTICE. + + +The first edition of this attempt to illustrate obscure passages in +the works of William Shakespeare by legal maxims was published when I +was a student-at-law. It was sent to the press for review, and some of +the London papers referred to it as a second edition of ‘Shakespeare a +Lawyer.’ The only notice I saw of it appeared in the _Liverpool Albion_ +as follows:— + +‘Not very long since, Mr. Rushton published a pamphlet, “Shakespeare +a Lawyer,” which attracted considerable attention in the literary +and theatrical world. It is well known that Lord Campbell, some time +afterwards, published a similar work, availing himself, without +acknowledgment, of Mr. Rushton’s labours, as the _Examiner_ conclusively +pointed out. Like its predecessor, this brochure shows the author is +deeply read in law.’ + +On page 100 of ‘William Shakespeare’ by Karl Elze, published in Germany +in 1876, the following may be seen:— + +‘Lord Campbell, “Shakespeare’s Legal Acquirements,” London, 1859—Vergl. +ausserdem W. L. Rushton, “Shakespeare a Lawyer,” London, 1858. Rushton +ist schon vor Lord Campbell zu dem gleichen Ergebnisse gekommen wie +dieser, wenngleich sich seine Schrift im Uebrigen nicht mit der des +letztern messen kann. Beachtung verdienen jedoch Rushton’s Erklärungen +der einschlagenden Stellen bei Shakespeare.’ + +German students of Shakespeare, who are induced by this note to refer +to Lord Campbell’s ‘Shakespeare’s Legal Acquirements Considered’ for +accurate explanations of the law and law terms they meet with in +Shakespeare’s works, will often be misinformed, because that book +contains many mistakes in law. + +Bacon, in his ‘Legal Maxims,’ says, ‘It might have been more flourish and +ostentation of reading to have vouched the authorities and sometimes to +have enforced or noted them; yet I have abstained from that also, and +the reason is, because I judged it a matter undue and preposterous to +prove rules and maxims.’ I should have saved myself some trouble if I had +‘abstained from the flourish and ostentation’ of vouching my authorities. + +In the plays of Ben Jonson, George Chapman, and other dramatists of their +time, legal maxims are to be seen in Latin. Shakespeare never quotes +legal maxims in Latin, but he gives correct translations of them which +are so embodied in his verse and prose that they have not the appearance +of quotations. This may be one of the reasons why they have not been +noticed by the commentators. Another reason may be that the commentators +who were not members of the legal profession did not recognise them +because they were ignorant of law, and the commentators who were lawyers +did not recognise them because they were ignorant of Shakespeare. +Shakespeare’s correct translations of legal maxims are, I think, the only +satisfactory evidence we have of his knowledge of Latin. + +I now give one example of Shakespeare’s correct translations of the Latin +maxims, and of the good verse he makes of it. + + Dormiunt aliquando leges moriuntur nunquam. + + The law hath not been dead, though it hath slept. + +where the verbs dormio and morior in Latin are represented correctly +by the verbs sleep and die in English. Although Bacon’s legal maxims +are twenty-five in number I have not found any of them in Shakespeare’s +plays, but a portion of one of them[1]—Sententia definitiva, revocari non +potest, as I venture to put it—expresses the law to which Shakespeare +refers in the _Comedy of Errors_. + + _Duke._ But, though thou art adjudged to the death, + And _passed sentence cannot be recall’d_ + But to our honour’s great disparagement, + Yet will I favour thee in what I can. + + _Comedy of Errors_, Act i. Scene 1. + +Those who believe that Francis Bacon wrote the plays attributed to +William Shakespeare may think that this statement is worthy of +consideration. + +Some commentators have concluded that Shakespeare was not a lawyer +because, as they say, he has made mistakes in law. In answer to this +conclusion, I ask three questions. + +1. Is there a barrister or a solicitor in large practice, or a judge on +the bench, who can say with truth, ‘I never made a mistake in law’? + + Seldom sits the judge that may not err. + + _Partheniades._ + +2. Why have we a Court of Appeal? + +3. Was it established to confirm or reverse the judgments and decisions +of men who were _not_ lawyers? + +But it is not necessary to cite the Court of Appeal to prove that even +learned lawyers make mistakes in law. It is sufficient to mention Lord +Campbell, who in his ‘Shakespeare’s Legal Acquirements Considered,’ has +made several mistakes in law, a few of which I have noticed in Archiv. f. +n. Sprachen and in ‘Shakespeare’s Testamentary Language,’ published in +the year 1869. The Appendix B. of that book concludes with these words: +‘We all know that Lord Campbell was a lawyer of great experience, yet in +his “Shakespeare’s Legal Acquirements Considered” he has made several +mistakes in law. How, then, could any errors in law which I might find in +Shakespeare’s works afford conclusive evidence that Shakespeare was not a +lawyer?’ + + 4 ULLET ROAD, DINGLE, LIVERPOOL, + _Long Vacation, 1907_. + + + + +SHAKESPEARE’S LEGAL MAXIMS. + + Qui genus humanum ingenio superavit, et omnis + Restinxit, stellas exortus uti aerius sol. + + _Lucretius._ + + +The lawyer, when he reads attentively the works of William Shakespeare, +may not be more surprised by the poet’s correct use of law terms, and +intimate acquaintance with legal customs and tenures, and the lex +scripta, than by his extensive and profound knowledge of the maxims of +the English law. + + _Portia._ To offend and judge are distinct offices, + And of opposed natures. + + _Merchant of Venice_, Act iii. Scene 1. + + _Queen Katherine._ I do believe, + Induc’d by potent circumstances, that + 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 malicious foe, and think not + At all a friend to truth. + + _Henry VIII._, Act ii. Scene 4. + +Nemo debet esse judex in suâ propriâ causâ (12 Rep. 113). No one +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 demeanes 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 a halfpenny, he might assess and have therefor one +hundred pounds, which would be against reason. And so such prescription, +or any other prescription used, if it be against reason, this ought not +nor will not be allowed before judges; Quia malus usus abolendus est. An +evil or invalid custom ought to be abolished (Co. Litt. s. 212). It is +also a maxim of the law of England, that Aliquis non debet esse judex in +propriâ suâ causâ quia non potest esse judex et pars (Co. Litt. 141a). + + _Olivia._ This practice hath most shrewdly pass’d 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. + + _Twelfth Night_, Act v. Scene 1. + +Portia and Queen Katherine both seem to refer to this maxim; and Olivia +promises, when the persons are discovered who have made Malvolio— + + The most notorious geek and gull + That e’er invention play’d on,— + +that she will then allow him to be both plaintiff and judge of his own +cause, notwithstanding that Nemo debet esse judex in propriâ suâ causâ. + + _Shy._ My deeds upon my head! I crave the law, + The penalty and forfeit of my bond. + + _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. And, I beseech you, + 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. + + _Merchant of Venice_, Act iv. Scene 1. + +Portia may expound the law of Venice, but in the English law it is an +established rule to abide by former precedents, stare decisis, where +the same points come again in litigation. An English judge is sworn to +determine, not according to his own private judgment (see per Lord +Camden, 19 Howell’s State Trials, 1071; per Williams, L. 4, Cl. and +Fin. 729), but according to the known laws and customs of the land; not +appointed to pronounce a new law, but to maintain and expound the old, +Jus dicere et non jus dare: (I. Bla. Com. per Lord Kenyon, C. J., 5 T. +R. 682, 6 Id. 605, and 8 Id. 239; per Grose, J., 13 East, 321; per Lord +Hardwick, C. Ellis v. Smith. 1 ves Jun. 16 T. R. 696, I. B. & B. 563). +Stare decisis et non quieta movere—to stand by things as decided, and +not to disturb those things which are tranquil, for Omnis innovatio +plus novitate perturbat quam utilitate prodest (2 Bulstr. 388);—every +innovation occasions more harm and derangement of order by its novelty, +than benefit by its abstract utility. The ancient judges of the law have +ever (as appeareth in our books) suppressed innovations and novelties in +the beginning, as soon as they have offered to creep up, lest the quiet +of the common law might be disturbed, and so have Acts of Parliament +done the like (Co. Litt. 379b). The judges say in one book, ‘We will not +change the law which always hath been used’; and another saith, ‘It is +better that it be turned into a default than the law should be changed, +or any innovation made’ (Co. Litt. 282b). + +The rule—stare decisis—does, however, admit of exceptions, where the +former determination is most evidently contrary to reason or divine law. + + _Cranmer._ Ah, my good lord of Winchester, I thank you; + You are always my good friend: if you will pass, + I shall both find your lordship judge and juror. + + _Henry VIII._, Act v. Scene 2. + +Ad quæstionem facti non respondent judices ad quæstionem legis non +respondent 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 matters 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 quæstionem +facti non respondent judices, so, ad quæstionem 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 destruction of the +law of England (Rex v. Poole, Cas. temp. Hardw. 28). + + _Eli._ 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 right and party of her son? + 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. + + _K. John._ Our strong possession, and our right for us. + + _Eli._ Your strong possession, much more than your right, + Or else it might go wrong with you and me: + So much my conscience whispers in your ear, + Which none but heaven, and you, and I, shall hear. + + _King John_, Act i. Scene 1. + +In æquali 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 +possession. 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 Institute, 345). Or it may happen that after +the death of the ancestor and before the entry of the heir, or after the +death of the particular tenant and before the entry of him in remainder +or reversion, a stranger may contrive 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 title, +such actual possession is prima 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 (Bla. +Com. 196). + +King John seems to refer to this maxim when he says— + + Our strong possession and our right for us. + +but Elinor says— + + Your strong possession much more than your right, + +because John was not in æquali jure with Arthur, but he was a wrong-doer, +having merely a naked possession; for after the death of Richard I., John +occupied the throne in defiance of the right of his nephew Arthur, who +was the son of John’s elder brother Geoffry. + + _Hamlet._ Farewell, dear mother. + + _King._ Thy loving father, Hamlet. + + _Hamlet._ My mother: father and mother is man and wife; + Man and wife is one flesh; and so, my mother. + + _Hamlet_, Act iv. Scene 3. + +Vir et uxor sunt quasi unica persona, 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 blood. +A man may not grant nor give his tenements to his wife, during the +coverture, for that his wife and he be but one person in 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 wife 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. 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 (Litt. S. 221): for +the husband and wife are accounted to be one person in law, Duæ animæ in +carne una (Lex divina, and see 4 Rep. 118). + + _Fal._ Of what quality was your love, then? + + _Ford._ 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 ii. Scene 2. + + _Quick._ Marry, sir, I come to your worship from Mistress Ford. + + _Fal._ Mistress Ford! I have had ford enough; I was thrown into + the ford; I have my belly full of ford. + + _Quick._ Alas the day! good heart, that was not her fault: she + does so take on with her men; they mistook their erection. + + _Fal._ So did I mine, to build upon a foolish woman’s promise. + + _Merry Wives of Windsor_, Act iii. Scene 5. + +Quicquid plantatur solo solo cedit (Went. Off. Ex. 14 ed. 145). Whatever +is affixed 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 becomes, in +contemplation of law, a part of the soil, and is consequently subject to +the same rights of property as the soil itself. The ancient common law, +regarding land as of far more consequence than any chattel which could be +fixed to it, always considered everything attached to the land as part +of the land (4 Rep. 64a; Lord Raymond, 738; Mackintosh v. Trotter, 3 Mee +& Wel. 184, 186). 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 express mention; and this is the law at the present time. 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 Ædificatum solo solo cedit. 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 allows the erections to be made, without +giving any notice of his claim, the Court of Chancery will compel him, +in a suit brought for the recovery of the land, to make due allowance +and compensation for such improvements. 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 promise, +as they make who build upon another man’s ground. Shakespeare does not in +either of these passages, as Lord Campbell supposed, refer to Cujus est +solum ejus est usque ad cœlum, which expresses the extent of the rights +of the owner of land, but he refers to the maxim Ædificatum solo solo +cedit, which expresses the action of building on another man’s land and +the legal consequence of doing so. + +When Shakespeare quotes a legal maxim he generally gives the words of +the maxim and the law which it describes. So Ford makes use of the verb +‘build’ and the noun ‘edifice’ which words are exact translations of +ædifico and ædificium. + +George Chapman, in ‘May Day,’ makes a humorous application of Ædificium +cedit solo. Ædificatum solo solo cedit, and Quicquid plantatur solo solo +cedit, have their origin in Justinian’s Institutes. + + _Angelo._ The law hath not been dead, though it hath slept. + + _Measure for Measure_, Act ii. Scene 3. + +Dormiunt aliquando leges, moriuntur nunquam. The laws sometimes sleep, +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 +disuse or be abrogated by contrary usage, Ea vero quæ ipsa sibi quæque +civitas constituit sæpe mutari solent vel tacito consensu populi vel +aliâ posteâ, lege latâ (I. L. 2, 11, Irving, Civil Law, 4th ed., 123): +and by the law of Scotland a statute is said to lose its force by +disuse (Stair, Macdonal, 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 observantiâ, yet by the law of England every +statute continues in force until it is repealed by a subsequent Act of +Parliament. Lex Angliæ sine parliamento mutari non potest (2 Institute, +619), for nothing is so agreeable to natural equity as that everything +should be dissolved by the same means which made it binding. Nihil tam +conveniens est naturali æquitati quam unumquodque dissolvi eo ligamine +quo ligatum est (2 Institute, 360). + +The statutes can only be altered or repealed by the same authority by +which they were made—jura eodem modo distituuntur quo constituuntur +(Dwarr. Stats. 672), eodem ligamine quo ligatum est dissolvitur (Co. +Litt. 212b). + + _Wolsey._ That seal + You ask with such a violence, the king + (Mine and your master) with _his own hand gave me_; + Bad me enjoy it, with the place and honours, + During my life; and to confirm his goodness, + Tied it by letters-patents:—now, who’ll take it? + + _Sur._ The king, that gave it. + + _Wol._ It must be himself, then. + + _Henry VIII._, Act iii. Scene 2. + +The Lord Chancellor (a cancellando, from his power to cancel letters +patent, being 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 Court 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 delivery 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 Great Seal, +per traditionem magni sigilli sibi per dominum regem, and by taking his +oath forma cancellarium constituendi regnante Henrico Secundo fuit +appendendo magnum Angliæ sigillum ad collum cancellarii electi (Camden, +p. 131). Thus the delivery of the king’s seal or the taking it away, +alluded to by Shakespeare in this passage, is the ceremony used in making +or unmaking a Lord Chancellor. Some have gotten it by letters patent at +will (35 Hen. VI. 3 b. of Winch., I Hen. VI. sec. 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). + + _Ant. E._ 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. + + _Pinch._ Go bind this man, for he is frantic too. + + _Adr._ What wilt thou do, thou peevish officer? + Hast thou delight to see a wretched man + Do outrage and displeasure to himself? + + _Off._ He is my prisoner: if I let him go, + The debt he owes will be requir’d of me. + + _Comedy of Errors_, Act iv. Scene 4. + +If a sheriff or a 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 liquated sum and +ascertained, to satisfy the creditor his whole demand; which doctrine is +grounded on the Equity of the Statute of Westminster second (13 Edw. I. +c. 11, and I. Rich. II. c. 12. Bro. Alr. t. parliament, 192; Inst. 382; +3 Bla. Com. 165), ubi jus ibi remedium (I. T. R. 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’ (Mackfield, +Civ. Law, 6). Remedium 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 Dic. title Remedy, Bac. Alr., +actions in general). Every injury to a legal right necessarily imports +damage in the nature of it, though there be no pecuniary loss (per Holt, +C. J., Ashly v. White, 2 Lord Raymond). Thus where a prisoner is in +execution or 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 an action for +an escape lies (Williams v. Mostyn, 4 M. & W. 153; Wylie v. Birch, 4 Qu. +B. 566, 567; Clifton v. Hooper, 6 Qu. B. 468). + + _York._ I took an oath that he should quietly reign. + + _Edw._ But, for a kingdom, any oath may be broken: + I would break a thousand oaths to reign one year. + + _Rich._ No; God forbid, your grace should be forsworn. + + _York._ I shall be, if I claim by open war. + + _Rich._ I’ll prove the contrary, if you’ll hear me speak. + + _York._ Thou canst not, son; it is impossible. + + _Rich._ An oath is of no moment, being not took + Before a true and lawful magistrate, + 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. + Therefore, to arms. + + 3 _Henry VI._, Act i. Scene 2. + +An oath is an affirmation or denial of anything _before one that hath +authority to administer the same_, calling God to witness that his +testimony is true (3 Inst. 165, C. 74). Sacramentum, habet in se tres +comites, veritatem, justiciam et judicium; veritas habenda est in +juratore; justicia et judicium in judice (Bracton, I. 4, f. 186). Four +sorts of oaths have been enumerated, viz., Juramentum 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 description); 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 Juramentum 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— + + _Sal._ It is a 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 murd’rous 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? + + 2 _Henry VI._, Act v. 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 perjury in law, because they are of +no validity, being coram non judice (3 Institute, 165; 4 Institute, 278, +279; 2 Roll. Alr. 257; Wood’s Institute, 2nd ed., pp. 411, 412). + + _Car._ The commons hast thou rack’d; the clergy’s bags + Are lank and lean with thy extortions. + + _Som._ Thy sumptuous buildings, and thy wife’s attire, + Have cost a mass of public treasury. + + _Buck._ Thy cruelty in execution + Upon offenders, hath exceeded law, + And left thee to the mercy of the law. + + 2 _Henry VI._, Act i. Scene 3. + +Executio est executio juris secundum judicium (3 Institute, 212). It is +a maxim of the law of England that the execution must be according to +the judgment, Et quæ in curia nostra rite acta sunt, debit’ executioni +demandari debent; and for express authority, Non licet felonem pro +felonia decollare. In the 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. But if a man being +attainted of felony be beheaded, it is no execution of the judgment, +because the judgment is, that he be hanged till 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 beheading, by the +same reason it might be altered to burning, stoning to death, &c. (3 +Institute, 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, say— + + Why should we be tender, + To let an arrogant piece of flesh threat us; + Play judge and executioner, all himself? + + _Cymbeline_, Act iv. Scene 2. + +If an officer beheads one who is adjudged to be hanged, or vice versâ, it +is murder (I. Hale P. C. 494; I. Hawk. P. C. c. xxviii. 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 the 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 Inst., +2nd ed., p. 662). So Clarence says to the murderers hired by Gloster— + + _Clar._ Are you drawn forth among a world of men + To slay the innocent? What is my offence? + Where is the evidence that doth accuse me? + What lawful quest have given their verdict up + Unto the frowning judge? or who pronounc’d + 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 i. Scene 4. + +To conclude this point: Judicium est legibus, non exemplis (4 Rep. 33), +and Judicium est jurisdictum and Executio est executio juris secundum +judicium (3 Inst. 211). Buckingham may also refer to Gloster’s cruelty in +making the law an instrument of oppression or extortion and the liability +thereby incurred, for Executio juris non habet injuriam (2 Inst. 481; 1 +Inst. 289a). The law in its executive capacity will not work a wrong. +If an individual, under colour of law, does an illegal act, or if he +abuses the process of the Court to make it an instrument of oppression +or extortion, this is a fraud upon the law, by the commission of which +liability will be incurred. + + _Claud._ Fellow, why dost thou show me thus to the world? + Bear me to prison, where I am committed. + + _Prov._ I do it not _in evil disposition_, + But from Lord Angelo by special charge. + + _Measure for Measure_, Act i. Scene 3. + +Qui jussu judicis aliquod fecerit non videtur dolo malo fecisse quia +parere necesse est (10 Rep. 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. vii. 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 Rep. 70). When a Court has jurisdiction of a cause, +and proceeds 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 necessary 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 Rep. 76). + + _Lady Macbeth._ What need we fear who knows it, when none can + call our power to account? + + _Macbeth_, Act v. Scene 1. + + _Lear._ No, they cannot touch me for coining; I am the king + himself. + + _Goneril._ Say if I do; the laws are mine, not thine; + Who shall arraign me for it? + + _Lear_, Act v. Scene 2. + +Lady Macbeth, Lear, and Goneril 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. R. 304; Jenk. Cent. 9, 308). + + _Duke._ He dies for Claudio’s death. + + _Isab._ [_kneeling._] Most bounteous sir, + 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 v. Scene 1. + +An evil intention is not punishable equally with the fact; Crimen +non contrahitur nisi nocendi voluntas intercedit (Bracton, lib. cap. +4; Wood’s Inst., 2nd ed., p. 340), except in treason, when the maxim +Voluntas reputatur 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., Rex _v._ Higgins, 2 East, 21), that so +long as an act rests in bare intention, it is not punishable by the law +of England—so Ulpian says: ‘Cogitationis pœnam nemo patitur’ (D. 48, 19, +18), and Montesquieu: ‘Les lois ne se chargent de punir que les actions +exterieurs’—but when an act is done, the law judges not only of the act +itself, but of the intent with which it is done. + + _Angelo._ What’s open made to justice, + That justice seizes. + + _Measure for Measure_, Act ii. Scene 1. + +And if the act be accompanied with an unlawful and malicious intent, +though in itself the act would otherwise be innocent, yet, the intent +being criminal, the act likewise becomes criminal and punishable (Rex +_v._ Scofield, 2 East, D. C. 1028). Non officit conatus, nisi sequitur +effectus (6 Rep. 42; Wood’s Inst., 2nd 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. R. 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 actually been committed. For in +such cases Voluntas non reputabitur pro facto, the will shall not be +taken for the deed (3 Inst. 69; 11 Rep. 98). + + _Ham._ Give me your pardon, sir: I’ve done you wrong; + But pardon’t, as you are a gentleman. + This presence knows, and you must needs have heard, + How I am punish’d with a sore distraction. + What I have done, + That might your 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. + + _Hamlet_, Act v. Scene 2. + +In all crimes there must be an evil 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., 2nd ed., p. 340, 339), for, Actus non 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 Furiosus solo furore puniatur, a +madman is only punished by his madness (Co. Litt. 247b; Bal. Com., 24, +25). So Hamlet says he is of the faction that is wronged, and he seems +to refer, not only to the maxim that the act does not make a man guilty +unless his intentions were guilty, but afterwards, in the same passage, +to the kind of homicide to which it is applicable— + + Sir, in this audience, + Let my disclaiming from a purpos’d evil + Free me so far in your most generous thoughts, + That I have shot mine arrow o’er the house, + And hurt my brother. + +viz., homicide per infortunium, or by misadventure,[2] which 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 flies off and kills a bystander. So Bracton says, ‘De amputatore +arborum, qui cum ramum projiceret, inscius occidit transeuntem, aut +cum quis pilam percusserit, &c., ex cujus ictu occisus est, tales de +homicidio non tenentur’ (lib. 3, fo. 136b). If a man shooting at butts +or a target, by accident kills a bystander, it is misadventure (I. 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? + + _Florizel._ Not any yet: + But as th’ _unthought-on accident is guilty_ + _To what we wildly do_, so we profess + Ourselves to be the slaves of chance, and flies + Of every wind that blows. + + _Winter’s Tale_, Act iv. Scene 4. + +If the act be unlawful it is murder. As if A, meaning to steal a deer +in the park of B, shooteth at the deer, and by a 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 not intent to hurt the boy, nor knew not +of him. Thus if B, the owner of the park, had shot at his own deer, and +without any ill intent had killed the boy by the glance of his arrow, +this had been homicide by misadventure, and no felony. So if one shoot at +any wild fowl upon a tree, and the arrow killeth any reasonable creature +afar off, without any evil intent in him, this is per infortunium, +for it was not unlawful 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 murder, for the act was +unlawful. If a man, knowing that many people came in the street from a +sermon, threw a stone over a wall, intending only to fear them or to give +them a light hurt, 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. c. 25; 3 Inst. 56, 57). All crimes +have their conception in a corrupt intent, have their consummation and +issuing in some particular fact, which, though it be not the fact at +which the intention of the malefactor levelled, yet the law giveth him no +advantage of the error, if another particular ensue of as high a nature. +As if A, having malice to B, strikes at him and misseth him and kills +C, this is murder in A (9 Rep. 81; H. P. C. 50). So Bracton says, ‘Si +quis unum percusserit, cum aliam 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 criminalibus sufficit generalis malitia intentionis cum 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). + + _Hub._ Stand back, Lord Salisbury, stand back I say: + By heaven, I think my sword’s as sharp as yours: + I would not have you, lord, forget yourself, + Nor tempt the danger of my true defence; + Lest I, by marking of your rage, forget + Your worth, your greatness, and nobility. + + _Big._ Out, dunghill! dar’st thou brave a nobleman? + + _Hub._ Not for my life: but yet I dare defend + My innocent life against an emperor. + + _King John_, Act iv. Scene 3. + +Excusable homicide is se defendendo, 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 +fiat moderamine inculpatæ tutelæ, non ad sumendam vindictam, sed ad +propulsandam injuriam (I. Inst. 162a; Wood’s Inst., 2nd ed., 359). + + _Alcibiades._ Who cannot condemn rashness in cold blood? + To kill, I grant, is sin’s extremest gust; + But, in defence, by mercy ’tis most just. + + _Timon of Athens_, Act iii. Scene 5. + +It is said that it must be a killing upon an inevitable necessity; but +necessity 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 a 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 ob tutelam corporis sui fecerit, jure id +fecisse 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. + + _Enter two_ Clowns, _with Spades, &c._ + + _1 Clo._ Is she to be buried in Christian burial, that wilfully + seeks her own salvation? + + _2 Clo._ I tell thee, she is; and therefore make her grave + straight: the crowner hath sat 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 has three branches; it is, to act, to do, and to + perform: argal, she drowned herself wittingly. + + _2 Clo._ Nay, but hear you, goodman 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; crowner’s-quest law. + + _Hamlet_, Act v. Scene 1. + +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 assurance that ‘the crowner hath +sate on her and finds it Christian burial,’ he says, ‘How can that be, +unless 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 although the ‘churlish priest’ +tells Laertes that ‘her death was doubtful,’ yet the queen says— + + There, on the pendent boughs her coronet weeds + Clambering to hang, an envious sliver broke; + When 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 +burial,’ 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 Geo. +IV. c. 52, which directs that a person felo de se shall be buried without +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 nine and twelve at night; but this statute does not authorise +the performance of the rites of burial. + + _Ch. Just._ 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. + + _2 Henry IV._, Act v. Scene 2. + +Injuria illata judici, seu locum tenenti regis, videtur ipsi regi illata, +maxime si fiat in exercentem officium (3 Inst. 1). + +Shakespeare in this passage probably refers to this maxim, or to the law +which it describes. The Chief Justice says, ‘When I did use the person of +your father, &c., you struck me in my very judgment seat, whereon as an +offender to your father I did commit you,’ and according to this maxim, +an injury offered to a judge, or one holding the place of the king, is +considered to be offered to the king himself, especially if done in +exercise of the office of a judge. + +In the first part of ‘Shakespeare Illustrated by Old Authors,’ published +in the year 1867, I quoted this maxim in illustration of this passage, +beginning my comment with these words: ‘Shakespeare in this passage +probably _refers to this maxim or the law which it describes_.’ The +author of a book entitled ‘Shakespeare as a Lawyer’ quotes this passage +and this maxim after saying, ‘Shakespeare, in the following passage from +the second part of _Henry IV._, _refers to this maxim or to the law +which it describes_,’ using the initial words of my comment. Without +this explanation those who have read ‘Shakespeare as a Lawyer,’ and have +not seen ‘Shakespeare Illustrated by Old Authors,’ may suppose that +I, instead of originating this illustration, had adopted it without +acknowledgment. + +This method of appropriation and concealment extends to other books of +mine. I give one more example of many. In ‘Shakespeare’s Euphuism,’ +published in 1871, I showed that the advice of Euphues to Philatus was +probably the origin of the advice of Polonius to Laertes, but a few years +ago a ‘Life of Shakespeare’ was published by Smith, Elder and Co., in +which are these words—‘In later life, Shakespeare in _Hamlet_ borrows +from Lyly’s “Euphues” Polonius’s advice to Laertes,’ and this statement +is made without mentioning my name or my book, from which the information +was obtained. This and much more inclines me to say with Falstaff— + + I would to God my name were not so terrible to the enemy as it + is. + + _2 Henry IV._, Act i. Scene 2. + +Puttenham in his ‘Second Book of Proportion Poetical,’ speaking of device +or emblem, says— + + ‘The Greeks call it Emblema, the Italians Impresa, and we, a + Device, such as a man may put into letters of gold and send + to his mistresses for a token, or cause to be embroidered in + Scutchions of arms on any bordure of a rich garment, to give by + his novelty marvel to the beholder.’ + +To this impresa Shakespeare refers in _Richard II._, when Bolingbroke, +addressing Bushby and Green, says— + + You have fed upon my signories, + Dispark’d my parks and fell’d my forest woods, + From my own windows torn my household coat, + Razed out my _imprese_, leaving me no sign, + Save men’s opinions and my living blood, + To show the world I am a gentleman. + + _Richard II._, Act iii. Scene 1. + +The tearing of Bolingbroke’s household coat was actionable, according to +the old maxim quoted by Coke, ‘Actio datur si quis arma, in aliquo loco +posita, delevit seu abrasit’ (3 Institute, 202). In _Pericles_, ii. 2, +Thaisa describes the devices on the shields of the six knights. + + _Hor._ How was this seal’d? + + _Ham._ Why, even in that was heaven ordinant. + 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’t the impression, placed it safely, + The changeling never known. + + _Hamlet_, Act v. Scene 2. + +Sigillum est cera impressa, quia cera sine impressione non est sigillum +(Co. 3 Institute, 169). + +The wax without an impression would not be a seal. Hamlet subscribed the +writ and also impressed the wax with his father’s signet. Crimen falsi +dicitur, cum quis illicitus, cui non fuerit ad hæc data auctoritas, de +sigillo regis rapto vel invento, brevia, cartasve consignaverit (Fleta). + + _Lear._ No, they cannot touch me for coining; I am the king + himself. + + _Lear_, Act iv. Scene 6. + +Monetandi jus comprehenditur in regalibus quæ nunquam a regio sceptro +abdicantur (Dav. 18). + +Shakespeare may here refer to this maxim, that the right of coining is +comprehended in those regal rights which are never removed from the regal +sceptre. + + _Scici._ What is the city but the people? + + _Cit._ True, the people are the city. + + _Coriolanus_, Act iii. Scene 1. + +In this passage Shakespeare probably refers to the maxim, Civitas et urbs +in hoc differunt quod incolæ dicuntur civitas, urbs vero complectitur +ædificia (Mirror, cap. 2, sect. 18, Brit. fol. 87, Co. Litt. 109b). A +city and a town differ in this, that the inhabitants are called the +city, but the town comprises the buildings. + + _Duke._ We have strict statutes, and most biting laws, + (The needful bits and curbs to headstrong steeds,) + Which for these fourteen years we have let slip; + Even like an o’ergrown lion in a cave, + That goes not out to prey. Now, as fond fathers, + Having bound up the threatening twigs of birch, + Only to stick it in their children’s sight + For terror, not to use; in time the rod + Becomes more mock’d than fear’d; 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 of decorum. + + _Measure for Measure_, Act i. Scene 3. + +The wisdom of the law abhors that great offences should go unpunished, +which was grounded without question upon these ancient maxims of law and +state: Maleficia non debent remanere impunita, et impunitas continuum +affectum tribuit delinquendi, et minatur innocentes qui parcit nocentibus +(Co. Rep. iv. 45). + +Crimes ought not to remain unpunished, and impunity offers a continual +temptation to the delinquent. + +Spes impunitatis continuum affectum tribuit delinquendi (3 Institute, +236). + + _Macb._ There’s blood upon thy face. + + _Mur._ ’Tis Banquo’s, then. + + _Macb._ ’Tis better thee without than he within. + Is he despatch’d? + + _Mur._ My lord his throat is cut; that I did for him. + + _Macb._ Thou art the best o’ the cut-throats: + Yet he’s good + That did the like for Fleance: if thou didst it, + Thou art the nonpareil. + + _Mur._ Most royal sir, + Fleance is ’scaped. + + _Macb._ Then comes my fit again: I had else been _perfect_, + Whole as the marble, founded as the rock, + As broad and general as the casing air. + + _Macbeth_, Act iii. Scene 3. + +Id perfectum est quod ex omnibus suis partibus constat; et nihil +perfectum est dum aliquid restat agendum (9 Co. 9). + +Fleance had escaped, therefore Macbeth was not perfect, because something +remained to be done to make him— + + Whole as the marble, founded as the rock. + + _King._ Things done well, + And with a care, exempt themselves from fear; + Things done without example, in their issue + Are to be fear’d. Have you a precedent + Of this commission? I believe, not any. + We must not rend our subjects from our _laws_ + And stick them in our _will_. + + _Henry VIII._, Act i. Scene 2. + +‘Neither have judges,’ says Coke, ‘power to judge according to that which +they think fit, but that which out of the laws they know to be right +and consonant to law.’ Judex bonus nihil ex arbitrio suo faciat, nec +proposito domesticæ voluntatis sed juxta leges et jura pronunciet (7 Co. +Rep.). + +According to this maxim a good judge may do nothing from his free choice +or private _will_, but he must decide according to the _laws_, and King +Henry says— + + We must not rend our subjects from our _laws_ + And stick them in our _will_. + +Angelo says— + + 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. + + _Measure for Measure_, Act ii. Scene 2. + +And according to another maxim of the law of England, Justitia non novit +patrem nec matrem, solam veritatem spectat justitia (I. Bulstrode, 199). +Justice knows not father nor mother, justice looks at the truth alone. + + _Hector._ Brother, she is not worth what she doth cost + The holding. + + _Troilus._ What is aught, but as ’tis valued? + +Coke in his Third Institute, 105, considering how the value of a thing +shall be construed, quotes the maxim, Tantum bona valent quantum vendi +possunt; things are worth as much as they will sell for. + + _Richard._ God save the King! Will no man say amen? + Am I both _priest_ and _clerk_? Well then, amen. + + _King Richard II._, Act iv. Scene 1. + +Shakespeare may here refer to two legal maxims, for one says, Rex est +persona sacra et mixta cum sacerdote (5 Co. Eccl. L), and the other says, +Reges dicuntur clerici (Dav. 4). + + _Lady Macbeth._ Alack, I am afraid they have awaked + And ’tis not done. The attempt and not the deed + Confounds us. + + _Macbeth_, Act ii. Scene 2. + +Non officit _conatus_ nisi sequatur _effectus_ (11 Co. 98). _Attempt_ is +the English of conatus, and _deed_ may represent effectus. + + _Scici._ He shall be thrown down the Tarpeian rock + With rigorous hands; he hath resisted law, + And therefore law shall scorn him any further trial + Than the severity of the public power, + Which he so sets at nought. + + _Coriolanus_, Act iii. Scene 1. + +Merito beneficium legis amittit, qui legem ipsam subvertere intendit +(2 Inst. 53). According to Scicinius, Coriolanus had resisted law and +therefore lost the benefit of the law. + + _Sal._ May this be possible? may this be true? + + _Mel._ 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. + +Nemo præsumitur esse immemor suæ æternæ salutis, et maxime in articulo +mortis (6 Co. 76). + +Melun was in articulo mortis, and according to this maxim no one is +presumed to be unmindful of his eternal welfare, and especially at the +point of death. + + _Diana._ ’Tis not the many oaths that make the truth, + But the plain single vow, that is vow’d true. + What is not holy, that we swear not by, + But _take the Highest to witness_. + + _All’s Well That Ends Well_, Act iv. Scene 2. + +Jurare est Deum in testem vocare, et est actus divini cultus (3 Inst. +165). Shakespeare evidently refers to this maxim, for to take the Highest +to witness, est Deum in testem vocare. + + _Antony._ Hear me, queen: + The strong _necessity of time_ commands + Our services awhile; but my full heart + Remains in use with you. + + _Antony and Cleopatra_, Act i. Scene 3. + +‘If the Bishop makes a certificate, and dies before it is received, it +is nothing worth, but his successor ought to certify it (F. N. B. 65, +8 E. 2, Excom. 26, 14 E. 3; ibid. 8). But note, reader, that in some +cases the Vicar-general may certify an excommengement, that is when the +Bishop is in remotis agendis, which is as much as to say, extra regnum, +in the king’s service; but the Court will be apprized of it by matter of +record, scil. by writ out of the Chancery directed to them, and not by +the surmise of the party, and then for necessity (which is always the +law of time, for necessitas est lex temporis) the certificate of the +Vicar-general shall be allowed, because no other can make it’ (Co. Rep. +viii. 69). In excuse for his going away Antony mentions the necessity of +time, and it was the necessity of time which required and rendered valid +the certificate of the Vicar-general. + + * * * * * + +In the books mentioned on the title-page of this small volume, in my +contributions to the Berlin Society for the Study of Modern Languages, +published in Archiv. f. n. Sprachen, and in _Notes and Queries_, I have +called attention to Shakespeare’s knowledge of old law books, of the +Real Property Law, the Common Law and the Lex Scripta, but I think the +knowledge and correct application of legal maxims displayed in his works +afford the strongest evidence I have yet produced that the great poet +must have been, for some time, a student-at-law. + + +THE END + + Printed by BALLANTYNE, HANSON & CO. + Edinburgh & London + + + + +FOOTNOTES + + +[1] Sententia interlocutoria revocare potest, definitiva non potest. + +[2] Homicide (from the Latin homicidium; homo, a man, and cido, to strike, +kill) signifies the killing of a human creature, and it is of three kinds, +justifiable, excusable, and felonious. + + + + +_ERRATA._ + +Transcriber’s Note: The errata have been corrected. + + + Page 10, Line 13, _for_ Revocare _read_ Revocari + ” 18, ” 14, ” Leges ” Legis. + ” 25, ” 10, ” Ædificio ” Ædifico. + ” 31, ” 13, ” Jurator ” Juratore. + ” 33, ” 9, ” Debit ” Debit’ + ” 36, ” 9, ” Jussa ” Jussu. + ” 38, ” 26, ” Cogitationes ” Cogitationis. + ” 38, ” 14, ” Hood’s ” Wood’s. + ” 42, ” 4, ” Rarmun ” Ramum. + ” 44, ” 9, ” Eum aliam ” Cum alium. + ” 52, ” 24, ” Quid ” Quia. + ” 53, ” 21, ” Civitus ” Civitas. + ” 54, ” 23, ” Debet ” Debent. + ” 54, ” 24, ” Continum ” Continuum. + ” 56, ” 13, ” Et ” Ex. + ” 56, ” 14, ” Justa ” Juxta. + + + + +*** END OF THE PROJECT GUTENBERG EBOOK 77514 *** |