Part 3

_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.