CHAPTER I.

"THE TEMPEST."

Sec. 1. Confiscation of property-Doing homage.

2. Witness' oath.

3. The marriage contract.

Sec. 1. Confiscation of Property-Doing Homage.

"Pro. This King of Naples, being an enemy to me inveterate, hearkens my brother's suit;

Which was that he, in lieu o' the premises, of homage and I know not how much tribute,

Should presently extirpate me and mine out of the dukedom; and confer fair Milan, with all the honors, on my brother."

This language is used to show a consideration for the confiscation of the estate of the speaker.

"In lieu o' the premises," are terms indicative of the common meaning of a quid pro quo. "Lieu" is here used in the sense of instead or in place of. That is, the scheme of confiscation had been adopted in lieu of the plan of extortion and extortion was the consideration for the judgment of confiscation.

Homage, in feudal law, was the rendition of submission and service by the tenant to the lord or superior, when first admitted to the land which he held of him, in fee. In other words, when invested with the fee, the tenant rendered homage to the Lord. The tenant was ungirth and uncovered and he kneeled and held up both hands between those of the lord, and professed that "he did become his man, from that day forth, of life and limb and earthly honor." After this profession he received a kiss from the lord paramount and the ceremony of doing homage was then ended.2

'Tempest, Act I, Scene II.

'Blackstone's Com. 87; Tiedeman's Real Prop. (3d Ed.) Ch. III. The word "lieu" is also used, in Love's Labour's Lost (Act III, Scene I) in the following sense: "Arm. I give thee thy liberty, set

thee from durance, and, in lieu thereof, impose on thee nothing but this.".

In Merchant of Venice (Act IV, Scene I) after acknowledgment of his obligations to Portia, for the acquittance from the Jew, Bassanio "in lieu" thereof tendered the three thousand ducats to Portia.

In Comedy of Errors, the Merchant advises Antipholus: "Therefore, give out you are of Epidamnum, Lest that your goods too soon be confiscate." (Act I, Scene II.)

In rendering homage to King Henry VI, Richard Plantagenet said: "Plan. Thy humble servant vows obedience and humble service, till the point of death." And the King said: "K. Hen. Stoop then, and set your knee against my foot; And in reguerdan of that duty done, I gird thee with the valiant sword of York: Rise, Richard, like a true Plantagenet; And rise created princely duke of York." (Act III, Scene I.)

Charles, Dauphin of France, and his nobles, swear allegiance to the crown of England, in 1' Henry VI, as follows: "York. Then swear allegiance to his majesty;

As thou art knight, never to disobey,

Nor be rebellious to the crown of England,

Thou nor thy nobles, to the crown of England." (Act V,
Scene IV.)

King Henry VI, in 2' Henry VI, knights Alexander Iden, for killing Cade, in this language: “K. Hen. . .Iden, kneel down. (He kneels.) Rise up a knight. We give thee for reward a thousand marks; And will, that thou henceforth attend on us." (Act V, Scene I.)

The king thus knights his son, in 3' Henry VI: "Q. Mar. . You promised knighthood to our forward son; Unsheathe your sword, and dub him, presently.-Edward, kneel down.

K. Hen. Edward Plantagenet, arise a knight; And learn this lesson, draw thy sword in right.

Prince. My gracious father, 'by your kingly leave, I'll draw it as apparent to the crown, And in that quarrel use it to the death." (Act II, Scene II.)

Warwick tells Clarence, in 3' Henry VI: “War.

now then

it is more than needful, Forthwith that Edward be pronounced a traitor, And all his lands and goods be confiscate." (Act IV, Scene VI.)

Belarius tells Cymbeline:

"First pay me for the nursing of thy sons; And let it be confiscate all, so soon as I have received it." (Act V, Scene V.)

Sec. 2. Witness oath.

"Cal. I'll swear upon that bottle to be thy true subject. for the liquor is not earthly.

Ste. Here; swear then, how thou escap'dst.

Trin. Swam a-shore, man, like a duck; I can swim like a duck, I'll be sworn.

Ste. Come, swear to that; kiss the book; I will furnish it anon, with new contents: swear."1

The most common form of oath, by the use of the gospel, is that here adopted. This form of oath obtains in countries subject to the English and Roman law. The witness took the book in his hand and then assented to the words: "You do swear that," etc., "so help you, God," and then kissed the book. The origin of this form of oath may be traced to the Roman law. Kissing the book is perhaps an imitation of the priest's kissing the ritual, as a sign of reverence before reading it to the congregation.*

That the central idea of the oath was thoroughly understood by the Poet is apparent from the language used, for an oath is but an outward pledge that the witness makes his attestation under an immediate sense of his responsibility to God and promises to accomplish the transaction to which it refers, according to His laws."

The Jew is sworn on the Pentateuch, or Old Testament, with his head covered. Strange, 821, 1113. The Mohammedan, on the Koran, 1 Leach, Cr. Cas. 54. The Brahmin, by touching the hand of a priest, Wils. 549.

In Love's Labour's Lost, the Poet justifies a false oath, as follows:

"Biron. Let us once lose our oaths, to find ourselves,

Or else we lose ourselves to keep our oaths;

It is religion to be thus forsworn;

For charity itself fulfills the law;

And who can sever love from charity." (Act IV, Scene III.)

In Merchant of Venice (Act II, Scene II), the oath, by swearing on the book, is again spoken of, as follows: "Laun. Father, in:-I cannot get a service, no:-I have ne'er a tongue in my head.-Well; (looking on his palm) if any man in Italy have a fairer table, which doth offer to swear upon a book.-I shall have good fortune," etc. And Shylock said: "An oath, an oath, I have an oath in heaven: Shall I lay perjury upon my soul? No, not for Venice." (Act IV, Scene I.)

In All's Well That Ends Well, (Act IV, Scene II) the Poet makes Diana say: “Dia. 'Tis not the many oaths that makes the truth;

But the plain single oath, that is vow'd true.

What is not holy, that we swear not by; but take the highest to witness."

In Winter's Tale, the messengers from Apollo's priest, took the following oath:

"Offi. You here shall swear upon this sword of justice,

That you, Cleomenes and Dion, have been both at Delphos;
And from thence have brought this seal'd-up oracle,
By the hand deliver'd of great Apollo's priest; and that,
Since then, you have not dar'd to break the holy seal,
Nor read the secrets in't.

Cleo. Dion. All this we swear." (Act III, Scene II.)

On pronouncing their banishment, King Richard II exacts the following oath from Bolingbroke and Norfolk:

"K. Rich. Return again, and take an oath with thee.

Lay on our royal sword your banish'd hands;
Swear by the duty that you owe to heaven,
(Our part herein we banish, with ourselves,)
To keep the oath that we administer:-

You never shall (so help you truth and heaven:)

Embrace each other's love in banishment;

Nor never look upon each other's face;

Nor never write, regreet, nor reconcile

This lowering tempest of your home-bred hate;

Nor never by advised purpose meet,

To plot, contrive, or complot any ill.

'Gainst us, our state, our subjects or our land.

Boling. I swear.

Nor. And I, to keep all this." (Act I, Scene III).

In 1' Henry IV, Francis said to Prince Henry: "Fran. O lord,

sir; I'll be sworn upon all the books in England, I could find in my heart." (Act II, Scene IV.)

The Poet makes Falstaff say to Bardolph, in 1' Henry IV: “Fal.... If thou wert any way given to virtue, I would swear by thy face; my oath should be, By this fire." (Act III, Scene III.)

Hostess Quickly, in 2' Henry IV (Act II, Scene II), puts Falstaff upon his oath, as follows: "Host. Thou did'st swear to me upon a parcel-gilt goblet, sitting in my Dolphin chamber, at the round table, by a sea-coal fire, upon Wednesday, in Whitsun week, when the Prince broke thy head for liking his father to a signing man of Windsor, thou did'st swear to me then, as I was washing thy wound, to marry me and make me my lady thy wife. Can'st thou deny it? . . And did'st thou not kiss me and bid me fetch thee thirty shillings? I put thee now to thy book-oath; deny it, if thou can'st."

Pistol, enraged at corporal Nym, comes quite near taking an oath, in Henry V, as follows: "Pist. Base tike, call'st thou me— host? Now, by this hand I swear, I scorn the term; nor shall my Nell keep lodgers. (Act II, Scene I.)

And in attempting to part the combatants, Bardolph said: "Bard. By this sword, he that makes the first thrust, I'll kill him; by this sword, I will." And Pistol replies: "Pist. Sword is an oath, and oaths must have their course." (Act II, Scene I.)

In 2' Henry VI, the earl of Salisbury, thus abjures his oath of allegiance to the King:

"Hen. Hast thou not sworn allegiance unto me?

Sal. I have.

Hen. Can'st thou dispense with heaven for such an oath?
Sal. It is 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 murderous 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?"

(Act V, Scene I.)

Richard thus reasons that a non-official oath is without effect, in 3' Henry VI:

"Rich. An oath is of no moment being not took,

Before a true and lawful magistrate,