Part 2

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.