fendant, is a part of the formal arraignment of the prisoner, hence it is customary, as the Poet had the king order, in this trial, to "read the indictment." Sec. 146. Torture by boiling in oil. "Paul. What studied torments, tyrant, hast for me? This reference is clearly to a unique and barbarous statute of the time of Henry VIII, inspired by the crime of one Richard Roose, of whose crime and the statute that it caused to be enacted, Reeves observes: "Having put some poison into a vessel of yeast, in the Bishop of Rochester's kitchen, by means of which seventeen persons in the bishop's family and several others were poisoned, this very heinous offence raised a kind of indignation in the legislature; and it was declared by that act, that the said poisoning should be adjudged high treason, and that Richard Roose should be attainted accordingly, by authority of parliament and should be boiled to death; and, as if none would commit this offence but such as were of the same employment with the present offender, it was enacted, not only that henceforth every willful murder by poisoning should be high treason, but that such offenders should all be boiled to death."4 11 Bl. Comm. 33; Archbold, Cr. Pl. 128. Falstaff is made to say to Hostess Quickley, in 2' Henry IV (Act II, Scene IV): "Fal. Marry, there is another indictment upon thee, for suffering flesh to be eathen in thy house, contrary to the law; for the which, I think, thou wilt howl." In King Richard III, the Scrivener is made to say: "Scriv. Here is the indictment of the good lord Hastings." (Act III, Scene V.) 2 Winter's Tale, Act III, Scene II. 322 Henry VIII, c. 9. IV Reeve's History Eng. Law, p. 427. Sec. 147. Lawyer's points. "Serv. He hath ribands of all the colours i'the rainbow; points, more than all the lawyers in Bohemia can learnedly handle, though they come to him by the gross. The "points," in a lawsuit are the legal propositions or questions, arising in the trial of a case. It is very generally held to be the duty of the Judge to give an opinion on all the "points" of law brought to his attention, by counsel, in the trial of a lawsuit, although the opinion on some may be reserved, for investigation, until after the trial of the cause. In the printing and submission of briefs, and written arguments, it is customary to submit first, "the points," then the authorities to sustain the different propositions urged and diligent counsel are apt to urge all the "points" that either directly or collaterally pertain to the rights of their clients. 3 Sec. 148. Arrested in the act, or, "taken with the manner." "Clown. Your worship had like to have given us one, if you had not taken yourself with the manner."4 The Clown here refers to the old legal expression of being arrested in the act, caught with the stolen article in the thief's possession, or "taken with the manner." Speaking of crimes in which the criminal was "taken with the manner," Bracton and Britton said that in such cases the crime was factum manifestum, and Lord Coke commenting upon this observation said that the criminal was not be admitted to bail. 6 'Winter's Tale, Act IV, Scene III. 2 Bouvier's Law Dictionary. 'Bouvier's Law Dictionary. Winter's Tale, Act IV, Scene IV. "Bracton, lib. iii, fol. 12; Britton, fol. 22. 'Coke, 2 Inst. 189. And see also II Reeve's History Eng. Law, p. 418. Sec. 149. Witchcraft and practice of magical arts.— "Paul. It is requir'd You do awake your faith. Then all stand still; Or those who think it is unlawful business I am about, let them depart."1 2 As observed by Doctor Rolfe, this reference is clearly to the statutes against witchcraft and the practice of magical arts, passed during the reign of Elizabeth and at other times in England. It was enacted by 5' Elizabeth, c. 16, that anyone guilty of practicing witchcraft, or enchantments, or using or practicing any invocation or conjuration of evil and wicked spirits, charm or sorcery, whereby anyone shall happen to be killed or destroyed, or wasted, consumed, or lamed, in body or member, it shall be felony without clergy, and such offender shall be imprisoned for a year and stand in the pillory once a quarter, for that time, for six hours.3 1 Winter's Tale, Act V, Scene III. 2 Rolfe's Winter's Tale, p. 264, notes. V Reeve's History Eng. Law, p. 349. The belief in witchcraft, which crystallized into different statutes, during the lifetime of the Poet, was so general that Shakespeare has many references to it. In Pericles, Prince of Tyre, Simonides is made to say to the Prince: "Thou hast bewitch'd my daughter and thou art a villain." (Act II, Scene V.) During the reign of William and Mary, in 1692, one Bridgett Bishop was executed for witchcraft, and following is copy of the warrant and of the return by the Sheriff of Salem, Massachusetts: "To George Corwin Gent'n, High Sheriffe of the County of Essex Greeting WHEREAS Bridgett Bishop al's Glliver, the wife of Edward Bishop of Salem in the County of Essex Lawyer at a speciall Court of Oyer and Terminer held at Salem the second Day of this instant month of June for the Countyes of Essex Middlesex and Suffolk before William Stoughton Esqe. and his associates of the said Court was Indicted and arraigned upon five several Indictments for using practising and exerciseing on the * * * nam * last past and divers other dayes and times the felonies of Witchcraft in and upon the bodyes of Abigail Williams, Ann Putt* Mercy Lewis, Mary Walcott and Elizabeth Hubbard of Salem Village * * * single women; whereby their bodyes were hurt, afflicted, pined consumed and tormented contrary to the forme of the statute in that case made and provided. To which Indictm'ts the said Bridgett Bishop pleaded not guilty and for Tryall thereof put herselfe upon God and her Country whereupon she was found guilty of the Felonyes and Witchcrafts whereof she stood indicted and sentence of Death accordingly passed ag't her as the Law directs. Execution whereof yet remaines to be done. These are therefore in the names of their maj'ties William and Mary now King and Queen over England &c. to will and comand you That upon Fryday next being the Tenth Day of this instant month of June between the hours of eight and twelve in the afornoon of the same day you safely conduct the s'd Bridgett Bishop al's Olliver from their maj'ties Gaol in Salem afores'd to the place of execution and there cause her to be hanged by the neck until she be dead and of your doings herein make returne to the clerk of the s'd Court and of this pr'cept. And hereof you are not to faile at your peril. And this shall be your sufficient warrant Given under my hand & seal at Boston the eighth of June in the fourth year of the reigne of our Sovereign Lords William and Mary now King and Queen over England &c., Annoq'e Dom. 1692. WM. STOUGHTON." "June 10th, 1692. According to the within written precept I have taken the body of the within named Brigett Bishop out of their majesties goal in Salem and safely conveighd her to the place provided for her execution and caused y sd Brigett to be hanged by the neck untill she was dead all which was according to the time within required and so I make returne by me. GEORGE CORWIN, (See "Comment," a Legal Publication, by West Pub. Co., for May, 1910, p. 229, for fac-simile of original warrant and return.) 154. Arrest upon mesne process-Debtor's dungeon. 155. Action "on the case." Sec. 150. Earnest to bind bargain. "Dromio of S. Hold, sir, for God's sake: now your jest is earnest. Upon what bargain do you give it me?"1 Earnest, or Arles, as it is called, in Scotland, from the civil law word arrhae, is a small sum of money which is given in proof of the existence of the mutual consent, necessary to constitute a binding contract. It is not the earnest which makes the contract legal, but the mutual consent, evidenced by the earnest, which is the basis of the bargain. The earnest is only some evidence of the legality of the contract and it may be preserved by an instrument of writing, or other evidence, in case the earnest is dispensed with. The original view of earnest, by the common law of England, was that it was a small portion of the price, in token of the conclusion of the contract,3 and this view seems to prevail to the present day, so that the earnest paid is entitled to be credited on the contract price, as a part payment, however small it may have been.* 4 1 Comedy of Errors, Act II, Scene II. 2 Lawson, Contracts (3d ed.) Coke, Inst., b. iii, tit. iii, s. 5; Story, on Sales, p. 216. 'Ante idem. |