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All's Well that Ends Well.
In this play we meet with proof that Shakespeare had an accurate knowledge of the law of England respecting the incidents of military tenure, or tenure in chivalry, by which the greatest part of the land in this kingdom was held till the reign of Charles II. The incidents of that tenure here dwelt upon are “wardship of minor: ” and “the right of the guardian to dispose of the minor in marriage at his pleasure.” The scene lies in France, and, strictly speaking, the law of that country ought to prevail in settling such questions; but Dr. Johnson, in his notes on · All's Well that Ends Well,' justly intimates his opinion that it is of no great use to inquire whether the law upon these subjects was the same in France as in England, “for Shakespeare gives to all nations the manners of England.”
According to the plot on which this play is constructed, the French King laboured under a malady which his physicians had declared incurable; and Helena, the daughter of a deceased physician of great eminence, knew of a cure for it. She was in love with Bertram, Count of Rousillon, still a minor, who held large possessions as tenant in capite under the crown, and was in ward to the King: Helena undertook the cure, making this condition :
Hel. Then shalt thou give me with thy kingly hand
Adding, however :
Esempted be from me the arrogance
She effects the cure, and the King, showing her all the noble unmarried youths whom he then held as wards, says to her
Fair maid, send forth thine eye: this youthful parcel
- thy frank election make :
(Act II. Sc. 3.)
Helena, after excusing herself to several of the others, comes to Bertram, and, covered with blushes, declares her election:
Hel. I dare not say I take you; but I give
King. Why then, young Bertram, take her: she's thy wife.
Bertram at first strenuously refuses, saying.
In such a business give me leave to use
But the King, after much discussion, thus addresses him :
It is in us to plant thine honour where
-- Take her by the hand,
I take her hand. (Act 11. Sc. 3.)
The ceremony of marriage was immediately performed, and no penalty or forfeiture was incurred. But the law not extending to a compulsion upon the ward to live with the wife thus forced upon him, Bertram escapes from the church door, and abandoning his wife, makes off for the wars in Italy, where he unconsciously embraced the deserted Helena.
For the cure of the King by the physician's daughter, and her being deserted by her husband, Shakespeare is indebted to Boccaccio; but the wardship of Bertram, and the obligation of the ward to take the wife provided for him by his guardian, Shakespeare drew from his own knowledge of the common law of England, which, though now obsolete, was in full force in the reign of Elizabeth, and was to be found in Littleton.* The adventure of Parolles's drum and the other comic parts of the drama are quite original, and these he drew from his own inexhaustible fancy.
* However, according to Littleton, it is doubtful whether Bertram, without being liable to any penalty or forfeiture, might not have refused to marry Helena,- on the ground that she was not of noble descent. The lord could not “disparage” the ward by a mésalliance.-.Co. Litt. 80a,
The Winter's Tale.
In this play, Act I. Sc. 2, there is an allusion to a piece of English law procedure, which, although it might have been enforced till very recently, could hardly be known to any except lawyers, or those who had them
that, whether guilty or innocent, the prisoner was liable to pay a fee on his liberation. Hermione, trying to persuade Polixenes, King of Bohemia, to prolong his stay at the court of Leontes in Sicily, says to him—
You put me off with limber vows; but I,
I remember when the Clerk of Assize and the Clerk of the Peace were entitled to exact their fee from all acquitted prisoners, and were supposed in strictness to have a lien on their persons for it. I believe there is now no tribunal in England where the practice remains, excepting the two Houses of Parliament; but the Lord Chancellor and the Speaker of the House of Commons still say to prisoners about to be liberated from the custody of the Black Rod or the Serjeant-at-Arms, “You áre discharged, paying your fees.”
When the trial of Queen Hermione for high treason comes off in Act 111. Sc. 2, although the indictment is not altogether according to English legal form, and might be held insufficient on a writ of error, we lawyers cannot but wonder at seeing it so near perfection in charging the treason, and alleging the overt act committed by her “contrary to the faith and allegiance of a true subject.”
It is likewise remarkable that Cleomenes and Dion, the messengers who brought back the response from the oracle of Delphi, to be given in evidence, are sworn to the genuineness of the document they produce almost in the very words now used by the Lord Chancellor when an officer presents at the bar of the House of Lords the copy of a record of a court of justice :
You here shall swear * * *