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Title: Shakespeare's legal maxims
Author: William Lowes Rushton
Release date: December 20, 2025 [eBook #77514]
Language: English
Original publication: Liverpool: Henry Young & Sons, 1907
Credits: Tim Miller and the Online Distributed Proofreading Team at https://www.pgdp.net (This file was produced from images generously made available by The Internet Archive)
*** START OF THE PROJECT GUTENBERG EBOOK SHAKESPEARE'S LEGAL MAXIMS ***
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.
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