Sec. 22. Frailty of all laws-Especially jury system. "Ang. I not deny, The jury passing on the prisoner's life, May, in the sworn twelve, have a thief or two, Guiltier than him they try: what's open made to justice, That justice seizes. What know the laws, That thieves do pass on thieves? 'Tis very pregnant, The substantive law is formed of customs, acts and adjudications as the rights to be passed upon arise. For years, many rights were overlooked, because of the universality of the law, to give relief in cases wherein equity now exercises jurisdiction. The remedial procedure, being dependent wholly on man, is necessarily more or less imperfect and this objection is frequently urged to the jury system, which this verse notices. But imperfect as it is, no institution has ever been found to improve upon it, in the trial of questions of fact. It dates from an early period in English history and was a mode of administering justice under the feudal institutions of France, Germany and other European countries. It was perpetuated in England by Magna Charta and is guaranteed in all the states of the United States.3 The Chorus, in the character of Gower, in Pericles, Prince of Tyre, thus refers to custom: "By custom, what they did begin, Was, with long use, account no sin." (Act I, Pro.) And Othello speaks of "the tyrant custom," which "hath made the flinty and steel couch of war, My thrice-driven bed of down." (Act I, Scene III.) 1 Measure for Measure, Act II, Scene I. 'I Reeves, Hist. Eng. Law, 23, 84; Bracton, 155; Glanville, c. 9. 3 Bl. Comm. 349; Reeves, Hist. Eng. Law, supra. Sec. 23. Action of slander.— "Elb. Prove this, thou wicked Hannibal, or I'll have mine action of battery on thee. Escal. If he took you a box o' the ear, you might have. your action of slander too."1 This is satire, of course, or irony, for if an action of battery would lie for a slander, then, by a parity of reasoning, the conclusion is reached, that an action of slander would lie for a battery. As distinguished from a libel, which is written, slander is generally defined as spoken words, derogatory of the character of a person. An action of slander will generally lie for any words spoken of another which impute to him the commission of a crime, involving moral turpitude, so if the construction placed upon the words spoken here, had been the proper one, since an offense against the law was charged, an action of slander could have been maintained, not one of battery, as the Poet clearly shows. 1 Measure for Measure, Act II, Scene I. 2 Heard, Libel & Slan. Sec. 8. Heard, Libel & Slan. Sec. 24. In King John (Act II, Scene I) the following occurs in the colloquy between Constance and Elinor: "Eli. Thou monstrous slanderer of heaven and earth. Const. Thou monstrous injurer of heaven and earth, call not me slanderer." In King Richard II (Act V, Scene VI) Bolingbroke thus replies to Exton, on learning of King Richard's death: "Boling. Exton, I thank thee not; for thou hast wrought A deed of slander with thy fatal hand, Upon my head, and all this famous land." In King Richard II, Mowbray replies to Bolingbroke (Act I. Scene I): "Nor. O, let my sovereign turn away his face, Sec. 24. Prostitution before the law. "Escal. How would you live, Pompey? by being a bawd? What do you think of the trade, Pompey? is it a lawful trade? Clo. If the law would allow it, sir. Escal. But the law will not allow it, Pompey; nor it shall not be allowed in Vienna. Clo. Does your worship mean to geld and spay all the youth in the city? Escal. No, Pompey. Clo. Truly, sir, in my poor opinion, they will to't then: if your worship will take order for the drabs and the knaves, you need not to fear the bawds. Prince Henry is quoted as saying to the Hostess, in 1' Henry IV: "P. Hen. Thou sayest true, hostess; and he slanders thee most grossly." (Act III, Scene III.) The wicked Margaret is made to say, in defense of Suffolk, when charged with Gloster's death, in 2' Henry VI: "Q. Mar. It may be judg'd, I made the duke away: So shall my name with slanders tongue be wounded, And princes courts be fill'd with my reproach." (Act III, Scene II.) Suffolk thus replies to his accusers, in 2' Henry VI: "Suff. I wear no knife, to slaughter sleeping men; but here's a vengeful sword, rusted with ease, That shall be scoured in his rancourous heart, That slanders me with murder's crimson badge." (Act III, Scene II.) And Warwick, suggests the proprieties of the situation, to Queen Margaret in her defense of Suffolk, as follows: "War. Madam, be still; with reverence, may I say; For every word, you speak in his behalf, Is slander to your royal dignity." (2' Henry VI, Act III, Scene II.) Excusing himself for his attempt to murder Margaret, Richard III, explains to Lady Anne: "Glo. I was provoked by her sland'rous tongue, That laid their guilt upon my guiltless shoulders." (Richard III, Act I, Scene II.) haply, The king refers to slander thus, in Hamlet: slander, whose whisper o'er the world's diameter, As level as the cannon to his blank, Transports his poison'd shot-may miss our name, and hit the woundless air." (Act IV, Scene I.) And Othello tells Iago, after he has aroused his jealousy of his wife: "If thou dost slander her and torture me, Never pray more: abandon all remorse." (Act III, Scene III.) Escal. There are pretty orders beginning, I can tell you: it is but heading and hanging. Clo. If you head and hang all that offend that way but for ten years together, you'll be glad to give out a commission for more heads. If this law hold in Vienna ten years, I'll rent the fairest house in it, after three pence a day: If you live to see this come to pass, say Pompey told you so." Keeping a bawdy house was an offense both at common law and by statute. At common law, the offense was indictable as a common nuisance and it clearly involves moral turpitude. The reasoning of the Clown, in defense of the practice, because of the prevalency of the offense, of course is not sound, for the same argument might be used to defend stealing or any other crime, if prevalent. Sec. 25. Sentence. "Prov. Is it your will Claudio shall die tomorrow? Ang. Did I not tell thee, yea? Had'st thou not order? Why dost thou ask again? Prov. Lest I might be too rash: Under your good correction, I have seen, Execution, in criminal law, is putting a convict to death, agreeably to law, in pursuance of a sentence of the court. After the sentence of the law is put in force, by an execution, of course it would be too late to correct any mistake, hence the suggestion to make any corrections before execution performed. 1 Measure for Measure, Act II, Scene I. 25 M. & W. Exch. 249. Measure for Measure, Act II, Scene II. 44 Bl. Comm. 403; 3 Bl. Comm. 412. In another play, the following sentence is pronounced: "King. Sir, I will pronounce your sentence; You shall fast a week with bran and water." (Love's Labour's Lost, Act I, Scene I.) Sec. 26. Plea for pardon.— "Ang. He's sentenced; 'tis too late. Isab. Too late? Ang. Too late? why, no; I, that do speak a word, Not the king's crown, nor the deputed sword, And you but waste your words. Speaking of Bolingbroke, King Richard II, said: "K. Rich. O God: O God: That e're this tongue of mine, That laid the sentence of dread banishment (Act III, Scene III.) After his exile, Norfolk said to King Richard II: "Nor. A heavy sentence, my most sovereign liege, And all unlooked for from your highness mouth." (Act I, Scene III.) The Chief Justice explains to Henry V, how he had enforced the law, during his father's reign, and then concludes: "Ch. Jus. After this cold considerance, sentence me." (2' Hen: y IV, Act V, Scene II.) King Henry V said to Sir Thomas Grey, after discovery of his treason: "K. Hen. God quit you, in his mercy. Hear your sentence." (Act II, Scene II.) Brabantio, on the loss of his daughter to the Moor, Othello, under the Duke's decision, said: "He bears the sentence well that nothing bears, (Act I, Scene III.) Tarquin lulls his conscience to rest with the philosophy that "Who fears a sentence or an old man's saw, Shall by a painted cloth be kept in awe." (Rape of Lucrece, 244, 245.) |