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. 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."1 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 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 possible that the Poet intended to refer to this old work, in these lines, spoken by the Duke. 1 Sec. 20. Dead laws. "Duke. We have strict statutes and most biting laws, That goes not out to prey: now, as fond fathers, Becomes more mocked than feared: so our decrees, The baby beats the nurse, and quite athwart This verse shows a deep insight into the science of laws and the well-known fact is recognized that a failure to enforce the laws that exist, brings about chaos in the State. The poet also seems possessed of the deeper insight, that laws are necessarily those legal principles and rules which are recognized by the governing power of the State, whether same are enforced in all cases or not; for the law is not the less a law, because the community sees fit not to enforce it, when it continues to be recognized by the governing body as a law of that community. And, as instanced in this play, even a departure from the enforcement of the strict letter of the law, by the governing body, itself, does not repeal the law, but it can be enforced, so long as it stands unrepealed. 3 claimed it for the father. As originally published the title page of this work was as follows: "Expositiones Terminorum Legum Anglorum, et Natura Brevium, cum diversis Casibus, Regulis, et Fundamentis Legum tam de Libris Magistri Littletoni quam de aliis Legum Libris collectis," etc., but the text was in French. IV Reeve's History Eng. Law, p. 565. 'Rolfe's Measure for Measure, p. 151, notes. a Measure for Measure, Act I, Scene III. Montesquieu, Esprit des Lois, b. 1., c. 1. Sec. 21. Custom shaping laws. "Ang. We must not make a scarecrow of the law And let it keep one shape, till custom make it Custom is such a usage, as by common consent and uniform practice has become the law of a place or of a given subject-matter. That custom may not only change or alter law, but in the absence of law, that it may be crystallized into law, is a well recognized fact, which the English common law exemplifies. The common law, in fact, was made up of customs which had existed from time immemorial, or for such length of time that the "memory of man runneth not to the contrary."3 General customs apply generally to a whole country and constitute general laws, while special customs apply only to special localities, or to special trades or vocations, such as the mining customs of the western states, which constitute some of our American common law. A custom, however, cannot generally be recognized, if it is in the face of a well-established law, for not only must it be a reasonable custom, but one that is not illegal, to be given. effect when invoked in court.5 1 Measure for Measure, Act II, Scene I. 2 Bouvier's Law Dict. 1 Bl. Comm. 76. 'White, Mines & Min. Rem., Sec. 69. Ante idem. Sec. 72. Lord Sands said, in King Henry VIII: "Sands. New customs. though they be never so ridiculous, nay, let them be unmanly, yet are follow'd." (Act I, Scene III.) Ruminating upon the custom which compels him to seek the support of the citizens for his preferment, Coriolanus said: "Cor. Custom calls me to't; What custom wills, in all things, should we do't, And mountainous error be too highly heap'd (Act II, Scene III.) 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. 2 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." 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, |