Sec. 269. Outlaw. "Win. And am I not a prelate of the church? Glo. Yes, as an outlaw in a castle keeps, And useth it to patronage his theft."1 An outlaw, in English law, was one who was put out of the protection or aid of the law, because of his prior unlawful course in life. At common law, a process was sued out against a person who was in contempt of court, for his refusal to be amenable to the court having jurisdiction of his person or his property, and the writ of outlawry issued either in criminal or civil cases.3 Gloster accuses the bishop of Winchester of being in contempt of the rightful temporal power and authority of the King and thus in a position of outlawry toward the sovereign. The Clown is made to say, in Titus Andronicus: "Clo. Why, I am going with my pigeons, to the tribunal plebs, to take up a matter of brawl, betwixt my uncle and one of the emperial's men." (Act IV, Scene III.) On the mutiny, inspired by Iago, Othello observes: "Are we turn'd Turks; and to ourselves do that, Which heaven hath forbid the Ottomites? For Christian shame, put by this barbarous brawl." (Act II, Scene III.) He then gives direction to the false Iago: "Iago, look with care, about the town; And silence those whom this vile brawl distracted." (idem.) '1' Henry VI, Act III, Scene I. * Bacon, Abr. Outlawry; 3 Bl. Comm. 283, 284. Coke, Litt. 128; Bacon, Abr.; 3 Bl. Comm. 283. Outlawry in civil cases, in the United States is unknown, and it is very rare that one is outlawed in a criminal case. Messala tells Brutus, in Julius Caesar: "That by proscription, and bills of outlawry, Octavius, Antony and Lepidus, have put to death a hundred senators." (Act IV, Scene III.) Sec. 270. Contract. "K. Hen. O loving uncle, kind duke of Gloster, How joyful am I made by this contract." A contract, in law, is an agreement, upon sufficient consideration to do or not to do, some particular thing." Contracts are either express or implied, and an express contract is one where the details and terms of the agreement are fully uttered and agreed to,3 while an implied contract is one left to the intention of the parties, or such a contract as reason and justice dictate and which, therefore, the law presumes that every man undertakes to perform.* The contract referred to here was rather in the nature of an implied contract, than one expressed in its terms, and of course as keeping the peace would only be the performance of their legal duty, this would be an object. imposed upon the parties by law. But the mutual promises by the duke of Gloster and the bishop of Winchester for themselves and their followers, to desist from further disturbances and keep the peace, and drop all past differences and dissensions between them, was in the nature of a contract, or agreement and the ratification of such an undertaking gave the king much pleasure. 11' Henry VI, Act III, Scene I. 2 Lawson on Contracts (2' ed.), sec. 1; 1 Parsons Con. sec. 9; 2 Bl. Comm. 446; 2 Kent's Comm. 449; Story, Con. sec. 1. 32 Bl. Comm. 443. 2 Bl. Comm. 443; 1 Parson's Com. 4; Lawson, Con. (2d ed.) sec. 3. King Henry VI, replying to the proffered offer of the daughter of the earl of Armagnac, in marriage, said: "K. Hen. In argument and proof of which contract, bear her this jewel, pledge of my affection." (Act V, Scene I.) In urging Charles to agree to the terms of the peace imposed, in 1' Henry VI, Reignier said: "Reig. My lord, you do not well, in obstinacy, To cavil, in the course of this contract." (Act V, Scene IV.) "Tal. My vows are equal partners with thy vows. Bed. Here will I sit, before the walls of Rouen, And will be partner of your weal or woe." Partners are those who enter into an agreement to use their labor, skill, or means, in the furtherance of some lawful commerce or business, under an understanding, express or implied from the nature of the enterprise, that there shall be community of the profits or earnings of the undertaking. In the agreement for the partnership, there may be an equal or unequal distribution of the earnings of the partnership, according to the amount contributed by each of the partners, hence Talbot declares that his vows will be "equal partners" with those of his associate in arms, clearly noting this distinction, in law, between one who shares the earnings only in proportion to his contributions and one who shares them equally with his co-partners. You Gloster urges the King, in 1' Henry VI: "Glo. know, my lord, your highness is betroth'd, Unto another lady of esteem; How shall we then, dispense with this contract, And not deface your honor with reproach?" (Act V, Scene V.) Juliet tells Romeo, in declaring her love: "Well, do not swear: although I joy in thee, I have no joy of this contract to-night." Act II, Scene II.) 11' Henry VI, Act III, Scene II. 2 Collyer, Part. Sec. 2; 1 Lindley, Part., secs. 1, 6; Story, Part secs. 23, 24. 3 Ante idem. Antony tells Caesar, in Antony and Cleopatra: "Ant. I, your partner in the cause, 'gainst which he fought, Could not with graceful eyes, attend these wars." (Act II, Scene II.) Tarquin tells the poor Lucrece: "That done, despitefully I mean to bear thee Unto the base bed of some rascal groom, To be thy partner in this shameful doom." (670, 672.) And Lucrece reflects that she would then have "co-partners in my pain." (789.) Sec. 272. Fighting in King's palace or presence."Basset. Villain, thou know'st the law of arms is such, That who so draws a sword, 'tis present death, Or else this blow should broach thy dearest blood." Basset here refers to the ancient law, which obtained in England, prior to the Norman Conquest, whereby fighting in the king's palace, or in his presence, or in that of his judges, was made a felony punishable by death.2 By statute (33 Henry VIII, c. 12) bloodshed and malicious strikings, whereby blood was shed, in the palaces or houses of the king, while he was personally resident there, was made a felony, for which the offender should have his right hand struck off and for declaration of the solemn circumstance of this execution, the statute assigned different functions to the different members of the king's household, in order to terrorize the populace and prevent such grievous offenses.3 Sec. 273. Quid pro quo.— "Suff. Lady, wherefore talk you so? Mar. I cry you mercy, 'tis but quid for quo.' 274 Quid pro quo, from the Latin, meaning an equivalent, denotes, in law, the consideration in a contract, for which something is to be done or not done, by the promisor. Of course the terms are used by Margaret in a jocular or humorous manner. 11' Henry VI, Act III, Scene IV. I Reeve's History Eng. Law, 198. IV Reeve's History Eng. Law, p. 453; Rolfe's 1' Henry VI, p. 202, notes. This barbarous judgment, by the lopping off of the right hand, we are told, was actually executed upon Sir Edmund Knivet, during the reign of Henry VIII, for striking a man, at Greenwich, the King then being there. (IV Reeve's History Eng. Law, p. 454). But this statute which imposed this punishment was repealed by 9' Geo. IV, c. 31. idem. '1' Henry VI, Act V, Scene III. Coke Litt. 47b. Sec. 274. Condemned woman's privilege of pregnancy."Puc. Will nothing turn your unrelenting hearts?— Then, Joan, discover thine infirmity; That warranteth by law to be thy privilege.- Joan of Arc here claimed the common law privilege, which was extended in all cases, to a pregnant woman, condemned to death, provided she was found to be with "quick child," of having her execution delayed until the birth of her child. When this plea was made prior to execution, the court directed a jury of twelve matrons, or discreet women, to ascertain the fact if the condemned woman was "quick with child," and if the verdict was that she was with quick child, the execution was stayed from term to term of court, until the child was born, or the woman was found to have been pretending pregnancy. By the English common law, however, the plea would fail, if it was not found that the child had quickened, for until this period the foetus was not believed to be alive. But by the law of Scotland and of France, it was held to be a good plea, when the woman was found to be pregnant, whether the child had quickened or not, and hence, the plea of the Maid of Orleans, in this instance, if she was really pregnant, ought to have stayed her execution, if the law of the realm was accorded her.* 2 11' Henry VI, Act V, Scene IV. 24 Sh. Bl. Comm. 394, 395; 1 Bishop, Cr. Proc., secs. 1322, 1324. 3 Reg vs. Baynton, 14 How. St. Tr. 597, 634. 'Bouvier's Law Dictionary; 1 Chitty's Cr. Law, 760. Chitty states that while the common law did not give a stay, unless the child had quickened, the matrons, because of their "gentleness of sex," usually found that the child had quickened and thus avoided the execution of one of their sex, at their hands. 1 Chitty, Cr. Law, 760; 3 Inst. 17; 4 Bl. Comm. 695; 1 Hale, P. C. 368, 369. |