148. Arrested in the act, or, "Taken with the Manner."
149. Witchcraft and practice of magical arts.

Sec. 135. Time overthrows law and customs.-
"Time, as Chorus. Since it is in my power,

To o'erthrow law, and in one self-born hour
To plant and o'erwhelm custom."1

The coupling of law and custom, in this verse, shows the knowledge of the Poet of the origin of law, for the English common law was but the crystallization of those customs which had continued until they came to be recognized as law, by the courts. Custom differs from prescription, in that the latter is personal and annexed to the owner of a particular estate, while a custom extends to all within the district where it obtains. In order to establish a custom, such as would confer a right at law,

1 Winter's Tale, Act IV, Scene I.

2 Bacon, Abr., 1; 1 Bl. Comm. 76; 2 idem. 31. 2 Bl. Comm. 263.

Queen Margaret observes, in 3' Henry VI: heavens are just and time suppresseth wrongs." III.)

"Q. Mar. Yet (Act III, Scene

it is necessary to show that it had existed for a time such that the "memory of man runneth not to the contrary thereof," and if the usage, in connection with the right claimed, had ceased for any length of time, the interruption of the custom would necessitate a new beginning, because it occurred within the "memory of man." Hence, it is that Time plays a very important part in the establishment of customs and laws, and it is consequently in the power of Time "To o'erthrow law and in one self-born hour, to plant and o'erwhelm custom."

Sec. 136. Trespass.

"Cam. Be plainer with me; let me know my trespass By its own visage: if I then deny it, 'tis none of mine."1

A trespass is any wrongful act or omission resulting in injury to the person or property of another. The action of trespass lies as well for injuries to the person, as by an assault and battery, as for an injury to the real estate of the injured person. If the real estate was entered by force and arms, it was called, at the common law, trespass vi et armis, while a mere entry, without force, was called trespass by breaking the close. However, the distinctions between the different kinds of trespass are not important here.

The speaker asks for the facts in connection with the charge of a wrongful act, on his part, not the mere conclusion as to such offense and he promises, if the facts stated are true, to admit them, or else he did not do the wrong charged against him.

1 'Winter's Tale, Act I, Scene II.

23 Bl. Comm. 208.

* 2 Aiken, (Vt.) 465.

43 Bl. Comm. 209.

51 Chitty, Pl. 439.

Mowbray, duke of Norfolk, thus refers to the father of his foe, in King Richard II (Act I, Scene I):

"Nor..

Once did I lay an ambush for your life,

A trespass that doth vex my grieved soul." The Duchess of York thus addresses her husband: "Duch. Why, York, what wilt thou do?

Wilt thou not hide the trespass of thine own?"

(King Richard II, Act V, Scene II.)

The Earl of Worcester, is quoted, in 1' Henry IV, as follows: "Wor. . . . My nephew's trespass may be well forgot,

It hath the excuse of youth, and heat of blood."

(Act V, Scene II.)

The Duke of Exeter replied to the Dauphin of France:

"Exe. caves and womby vaultages of France shall chide your trespass, and return your mock, in second accent of his ordnance." (Act II, Scene III.)

Clarence tells Warwick, in 3' Henry VI: "Clar. I am sorry for my trespass made." (Act V, Scene I.)

Speaking of the friendship between Cæsar and Antony, Menas said to Pompey, in Antony and Cleopatra:

"Men. I cannot hope,

Cæsar and Antony shall well greet together:
His wife, that's dead, did trespasses to Cæsar."

(Act II, Scene I.)

On the first meeting between Romeo and Juliet, she tells him, on being kissed: "Then have my lips the sin that they have took." And he replies: "Sin from my lips? O trespass sweetly urg'd: Give me my sin again." (Act I, Scene V.)

Before accomplishing her ruin, Tarquin is thus made to address Lucrece:

"And thou, the author of their obloquy Shalt have thy trespass cited up in rhymes And sung by children in succeeding times." And to this she is made to reply:

(523, 525.)

"Think but how vile a spectacle it were, To view thy present trespass in another."

(631, 632.)

Lucrece complained that:

"The illiterate, that know not how

To cipher what is writ in learned books,

Will quote my loathsome trespass in my looks."

(810, 812.)

And the innocent Lucrece concluded that "few words would fit

the trespass best." (1612.)

Sec. 137. Negligence distinguished from wilfullness.—

"Cam.

I may be negligent, foolish and fearful;

In every one of these no man is free,

But that his negligence, his folly, fear,
Amongst the infinite doings of the world,
Sometime puts forth: In your affairs, my lord,
If ever I were wilful-negligent,

It was my folly; if industriously

I played the fool, it was my negligence,
Not weighing well the end."

The distinction noted here, between a mere negligent act and an act wilfully done, will be best appreciated by members of the legal profession. Simple negligence is a failure to use such care and caution as a reasonably prudent man would exercise under the circumstances, as a result of which another sustains an injury in his person or his property. Wilfullness is a wrongful act, intentionally done, to the injury of another in his person or his property. Because of the distinction between the two, and the absence of a wrongful act, intentionally done, in the former, there is a wide difference between the effect of the two, upon the liability of one charged with the effect of the wrongful act.

The Poet makes the speaker attempt to take away the element of willfulness from his intentional wrongful acts, by the plea that such acts resulted from mere weakness or levity, rather than from a wilfull intent to wrong, while his merely negligent acts were done, "not weighing well the end," which is a universal characteristic of simple negligence.

1 Winter's Tale, Act I, Scene II.

21 Thompson on Negligence, Secs. 1, 15; 1 White, Per. Inj. on R. R. Chapter 1.

'1 Thompson, on Negligence, Secs. 20-22; 1 White, Per. Inj. on R. R. Chapter 1.

Speaking of the lack of precaution before the battle of Bourdeaux, Talbot, in 1' Henry VI, said: "Tal. O, negligent and 'heedless discipline." (Act IV, Scene II.)

Commenting on his neglect in losing his inventory, which occasioned his undoing, Cardinal Wolsey, said, in King Henry VIII: "Wol. O negligence fit for a fool to fall by." (Act III, Scene II.)

Caesar tells Octavia, in Antony and Cleopatra:

"Caes. Your letters did withold our breaking forth;

Till we perceived, both how you were wrong led,
And we in negligent danger."

And Cleopatra uses this bit of philosophy, in talking to Antony: "Cleo. Celerity is never more admir'd, Than by the negligent."

(Act III, Scenes VI, VII.)

In Cymbeline, a gentleman is made to say: "1 Gent. Howsoe'er 'tis strange, or that the negligence may well be laugh'd yet is it true, sir." (Act I, Scene I.)

Goneril tells the Steward, in King Lear: "Put on what weary negligence you please," etc. (Act I, Scene III.)

In Antony and Cleopatra, Augustus speaks of danger augmented by negligence, as follows:

"Your letters did withold our breaking forth

Till we perceiv'd both how you were wrong led
And we in negligent danger."

(Act III, Scene VI.)

In Hamlet, Laertes, thus speaks of the death of his father, Polonius:

"To this point I stand,-That both the worlds I give to negli

gence,

Let come what comes; only I'll be reveng'd Most thoroughly
for my father."
(Act IV, Scene V.)

Before arousing Brabantio, Iago and Roderigo, in Othello, say:
"Rod. Here is her father's house; I'll call aloud.
Iago. Do; with like timorous accent and dire yell,
As when, by night and negligence, the fire
Is spied in populous cities."

(Act I, Scene I.)

Speaking of how she acquired Desdemona's handkerchief, Emilia tells Iago, in Othello: "She let it drop by negligence; And, to the advantage, I, being here, took't up." (Act III, Scene III.)

In the CXVII' Sonnet, the Poet speaks thus of wilfullness and

error:

"Book both my wilfullness and errors down,

And on just proof surmise accumulate." (9, 10.)