demeanors, punishable by fine or imprisonment in jail, as distinguished from the more important crimes such as murder, arson, forgery, and the like crimes, punishable by death or a term in the penitentiary.1 Sec. 15. Grand-jury.— "Fab. I will prove it legitimate, sir, upon the oaths of judgment and reason. Sir To. And they have been grand-jurymen since before Noah was a sailor." 2 As grand-jurymen sit upon the different offenses known to the law and indict or exonerate citizens for charges brought against them, the proper discharge of such duties, requires both reason and sound judgment. Hence the comparison made, that reason and judgment have been grand-jurymen since before Noah was a sailor. Of course the institution does not date to any such prehistoric times, but there is reason to believe that this institution existed among the Saxons and it is certain that in the 12th century (by Statute 10' Hen. II) if the institution did not exist before, it was established in England, since which time it has existed uninterruptedly.5 1 Bishop's Cr. Law; 4 Bl. Com. 5. 2 Twelfth Night, Act III, Scene II. 3 Crabb, Eng. Law, 35. Enacted in 1164. 54 Bl. Comm. 302; 2 Russell, Crimes, 616. "Fal. In 1' Henry IV, Falstaff thus addresses the Travelers: You are grand-jurors, are ye? We'll jure ye, i'faith." (Act II, Scene II.) Timon of Athens, makes the leopard spots jurors on the life of the leopard, when the lion is near. He says to Apemantus: "Tim. Wert thou a leopard, thou wert german to the lion, and the spots of thy kindred were jurors on thy life; all thy safety were remotion." (Act IV, Scene III.) Sec. 16. Windy side of the law. "Sir To. I will waylay thee going home; where, if it be thy chance to kill me, Fab. Good. Sir To. Thou killest me like a rogue and a villain. The thought here expressed is, although the speaker should "lie in wait" and thus show premeditation, looking to the physical injury of Viola, still he would keep clear of the law, because, instead of making any threat to cause any bodily harm, his purpose was not so expressed in waiting for him. In other words, while there was a "lying in wait," there was a total absence of any premeditation to inflict bodily harm, hence the speaker kept next the wind, or on the windward side of the law, meaning that he thereby adopted precautionary measures for his security.2 'Twelfth Night, Act III, Scene IV. For distinction between premeditation and simply lying in wait, see Dane, Abr, But lying in wait is usually evidence of premeditation. 'Webster, Dictionary. See Rolfe's Twelfth Night, p. 197, notes. In Romeo and Juliet, the servants of Capulet, before provoking a quarrel with those of Montague, discuss'd how the law could be placed on their side and Sampson said: "Let us take the law on our sides; let them begin." (Act I, Scene I.) And when Abram bit his thumb at them, Sampson asked: "Is the law on our side, if I say-ay?" (idem). Peter tells the nurse and Romeo, in Romeo and Juliet: "I dare draw as soon as another man, if I see occasion in a good quarrel, and the law on my side." (Act II, Scene IV.) In Gannon vs. Pauk, (200 Mo. p. 86) Judge Lamm, construes the "windy side" of the law, as the cold side, when he observes: "There is a 'windy,' that is, a cold side of the law, now as formerly (Twelfth Night, Act III, Scene IV.) and the law turns a cold face (a windy side) to perpetuities and the tying up of landed properties by entailment." Sec. 17. Action of battery. "Sir And. Nay, let him alone, I'll go another way to work with him; I'll have an action of battery against him, if there be any law in Illyria; though I struck him first, yet its no matter for that." A battery is any unlawful beating or other wrongful physical violence inflicted upon a person, without his consent. A battery is usually justifiable in the necessary defense of one's person against the assaults of his assailant, but the force used must be only such as is necessary to repel the attack made. Force may be used only to avert an impending evil and to prevent a person from being overwhelmed, but not as a punishment or by way of retaliation for an injurious assault. Any addition of specific ultimate wrong or means by which additional danger is inflicted generally is held to increase the offense of battery, hence, the conclusion of the speaker, "though I struck him first, yet its no matter," since in strict legal aspect, the previous treatment would not have justified the punishment subsequently inflicted and an action for damages would lie therefor. Enobarbus is made to say, in Antony and Cleopatra: “Eno. . . . All take hands. Make battery to our ears with the loud music: The while, I'll place you." (Act II, Scene VI.) Lysimachus, in Pericles, Prince of Tyre, speaking of the charms of Marina, asserts that by her sweet harmony she would allure and "make a battery through his deafen'd parts." (Act V, Scene I.) Imogen threatens Iachimo, on his intemperate proposal to her, in Cymbeline, as follows: "Imo. The king, my father, shall be made acquainted of thy assault." (Act I, Scene VII.) Sec. 18. Party plaintiff.— "Oli. Pry'thee be content; This practice hath most shrewdly passed upon thee; Of course this would be an unheard of legal proceeding, wherein a party was also a judge in the cause, for it would lack the disinterested element which must always characterize the judge of any controversy. A party plaintiff in a personal action is one who seeks a remedy for an injury to his rights. After such person has been once named in the pleadings, it is proper to thereafter refer to him merely as the "plaintiff," as the reference is here made.3 In King John, in trying to dissuade the armies from battle, the Citizen thus addressed the officers present: "This union can do more than battery can, To our fast-closed gates, for at this match," etc. (Act II, Scene I.) In Antony and Cleopatra, Antony tells Eros: "Off, pluck off: The seven-fold shield of Ajax cannot keep The battery from my heart." (Act IV, Scene XIV.) Adonis is made to say to Venus, in Venus and Adonis: "Dismiss your vows; your feigned tears, your flattery; For where a heart is hard they make no battery." (425, 426.) In A Lover's Complaint, the Poet describes the "fickle maid, full pale," who narrated the "sad-tun'd tale"; "Sometimes her level'd eyes their carriage ride, As they did battery to the spheres intend." (22, 23.) The maid, in A Lover's Complaint, described how her lover had woo'd her, as a supplicant, whose sighs extended, “To leave the battery" that her heart made against his. (276, 277.) 1 Twelfth Night, Act V, Scene I. 3 Bl. Com. 25; 1 Chitty, Pl. '1 Chitty, Pl. (Gr. Ed.) 266. CHAPTER V. "MEASURE FOR MEASURE." Sec. 19. Termes of the Law. 20. Dead Laws. 21. Custom shaping Laws. 22. Frailty of all laws-Especially jury system. 24. Prostitution before the Law. 25. Sentence. 26. Plea for Pardon. 27. Punishment for Seduction, by Venetian Law. 29. Common Law marriage contract. 30. Plea for Justice. 31. The Equality of Justice. 32. The Law a gazing-stock, when not enforced. 33. Confession of guilt. 34. Loyalty of Attorney. 35. Intent, distinguished from Wrongful Act. 36. Breach of Promise. 37. Punishment by marriage to Prostitute. Sec. 19. Terms of the law. "Duke. The nature of our people, That we remember." 991 By "terms for common justice," the Poet no doubt refers to the technical language of the law, used by the courts of his time. During the reign of Henry VIII, in 1527, "Les Termes de la Ley," a scientific old law book, written by John Rastell in French, and translated by his son, William, appeared and this work contained an exposition of the "terms" of the law then most commonly in use. It is 2 1 Measure for Measure, Act I, Scene I. "There seems to be some doubt as to whether the father, John, or the son William, wrote this work. Coke, Wood and others, attributed it to the son, while Bishop Tanner, Bale and others |