In Comedy of Errors, the following colloquy occurs between Dromio and Antipholus: "Dro... There's no time for a man to recover his hair, that grows bald by nature. Ant. May he not do it by fine and recovery? Dro. Yes, to pay a fine for a peruke, and recover the lost hair of another man." (Act II, Scene II.) Commenting on this verse, Mr. Cushman K. Davis, in his "Law in Shakespeare," has this to say: "This is a lawyer's pun and would never have occurred to anyone but a lawyer. There is also here a very abstruse quibble in the use of the words, 'recover the lost hair of another man,' for the effect of a fine and recovery was to bar not only the heirs upon whom the lands were entailed, but all the world." Davis' Law in Shakespeare (2nd ed.), p. 133. In King John (Act II, Scene I), Constance said to Elinor: "Draw those heaven-moving pearls from his poor eyes; which heaven shall take in nature of a fee." In Troilus and Cressida, Thersites speaks of the Fee-simple of the tetter, as follows: "Ther. incurable bond-ache, and the rivalled fee-simple of the tetter; take and take again, such preposterous discoveries." In delivering his curse upon Patroclus, Thersites intimates that he has the "tetter," or a disease of the skin, for life and as a hereditament, to transmit to his posterity, if he has any. In other words, he has such disease by the highest and best title, i. e., by a fee-simple holding. (Act V, Scene I.) In Romeo and Juliet, Benvolio and Mercutio speak of the feesimple of the former's life, as follows: "Ben. An I were so apt to quarrel as thou art, any man should buy the fee-simple of my life, for an hour and a quarter. Mer. The fee-simple. O simple." (Act III, Scene I.) Kent advises the King, in King Lear: the fee bestow upon the foul disease." "Kill thy physician, and (Act I, Scene I.) The Captain tells Hamlet, in referring to the war to recover the land of Fortinbras: "Cap. We go to gain a little patch of ground, That hath in it no profit but the name. To pay five ducats, five, I would not farm it; A ranker rate, should it be sold in fee." (Act IV, Scene IV.) The maid described how she had given her lover the best she had, in A Lover's Complaint: "My woeful self, that did in freedom stand, And was my own fee-simple, not in part, What with his art in youth and youth in art, (143, 147.) CHAPTER IV. "TWELFTH NIGHT." Sec. 10. Exceptions-Improper conduct. 13. Sheriff's post. 14. Misdemeanors. 15. Grand-jury. 16. Windy side of the law. 17. Action of battery. 18. Party plaintiff. Sec. 10. Exceptions-Improper conduct.— "Mar. By troth, Sir Toby, you must come in earlier o' nights; your cousin, my lady, takes great exceptions to your ill hours. Sir To. Why, let her except, before excepted. Mar. Ay, but you must confine yourself within the modest limits of order." This verse refers to the method of trial adopted to preserve the errors of the trial court, for the review of the higher court. As errors occur- or a litigant fails to confine himself "within the modest limits of order," an exception is noted on the records of the trial court, and, at the conclusion of the trial, or within a time fixed by the court, these various errors are presented and signed by the trial judge, as a bill of exceptions, upon which the errors of the trial court are reviewed on appeal. Bills of exception were authorized by Statute in England, in an early day and the practice obtains in the United States to the present day. 'Twelfth Night, Act I, Scene III. Iago tells Roderigo, in Othello: "Give me thy hand, Roderigo: Thou hast taken against me, a most just exception; but, yet I protest, I have dealt most directly in thy affair." (Act IV, Scene II. ( Sec. 11. Proof-Admission against interest.— "Oli. Make your proof. Clo. I must catechise you for it, madonna; good my mouse of virtue, answer me. Oli. Well, sir, for want of other idleness, I'll'bide your proof. Clo. Good madonna, why mourn'st thou? Oli. Good fool, for my brother's death. Clo. The more fool you, madonna, to mourn for your brother's soul, being in heaven.-Take away the fool, gentlemen."1 The proof by which the clown here establishes the fact attempted to be proven is by that method of proof known as securing an admission against interest. To prove a fact is to determine or establish, by competent evidence, that such fact exists or does not exist. The proof adduced here comports to the proper method of establishing a fact in a court of justice, for after the premise and argument of the fact to be established, the strongest proof is the admission against interest, for this kind of proof, because it is against the interest of the party making the admission, carries the strongest probative force. After admitting that her brother's soul was in heaven, the conclusion is drawn that none but a food, would mourn, and thus the fact is established that the mistress is a fool, by her own admission. 'Twelfth Night, Act I, Scene V. 'Ayliffe, Parerg. 442; Greenl. Evid. Greenl. Evid. 3 Flavius, on his return to Timon of Athens, with no funds, said to his lord, by way of further assurance of his failure to borrow of his friends: "Flav. If you suspect my husbandry, or falsehood, Call me before the exactest auditors, And set me on the proof." (Act II, Scene II.) After he had been poisoned against his wife, by Iago, Othello tells him: "By the world, I think my wife be honest, and think she is not; I think that thou art just, and think thou art not; I'll have some proof." (Act III, Scene III.) Sec. 12. Misprison. "Clo. Misprison in the highest degree;-Lady, cucullus non facit manachum; that's as much as to say, I wear not motley in my brain. Good madonna, give me leave to prove you a fool?" 3 Misprison is a term used in the criminal law to signify all misdemeanors, not given some particular name by the law creating the offense. Misprisons are either negative, as where the commission of a crime is concealed, or positive misprison, which is the commission of an offense not otherwise catalogued. Misprisons positive are also denominated contempts or high misprisons, as referred to in this verse. 'Twelfth Night, Act I, Scene V. Coke, 3d Inst, 36. 1 East Pl. Cr. 139; 1 Russell, Crimes, 43. Bl. Com. 9. 54 Bl. Com. 126. The term, "misprison," as one most familiar to the Poet, is used in various places to indicate an offense, not otherwise classified, as at law. Thus: "Obe. What hast thou done? thou hast mistaken quite And laid the love-juice on some true-love's sight; Of thy misprison must perforce ensue, Some true-love turned, and not a false turn'd true." (Midsummer Night's Dream, Act III, Scene II.) "Misprison" is also used in Love's Labour's Lost, in the following couplet: "Biron. A fever in your blood, why, then incision, Would let her out in saucers; Sweet misprison." (Act IV, Scene III.) The Earl of Northumberland is made to say in 1' Henry IV (Act I, Scene III): "North. Either envy therefore, or misprison is guilty of this fault, and not my son." Speaking of the gift of his friend to himself, the Poet uses the word misprison, in the LXXXVII Sonnet: "So thy great gift, upon misprison growing, Comes home again, on better judgment making." (11, 12.) |