Sec. 18. Party plaintiff. "Oli Pry'thee be content; This practice hath most shrewdly passed upon thee; Of thine own cause."1 Of course this would be an unheard of legal proceeding, wherein a party was also a judge in the cause, for it would lack the disinterested element which must always characterize the judge of any controversy. A party plaintiff in a personal action is one who seeks a remedy for an injury to his rights. After such person has been once named in the pleadings, it is proper to thereafter refer to him merely as the "plaintiff," as the reference is here made.3 In King John, in trying to dissuade the armies from battle, the Citizen thus addressed the officers present: "This union can do more than battery can, To our fast-closed gates, for at this match," etc. (Act II, Scene I.) In Antony and Cleopatra, Antony tells Eros: "Off, pluck off: The seven-fold shield of Ajax cannot keep The battery from my heart." (Act IV, Scene XIV.) Adonis is made to say to Venus, in Venus and Adonis: "Dismiss your vows; your feigned tears, your flattery; For where a heart is hard they make no battery." (425, 426.) In A Lover's Complaint, the Poet describes the "fickle maid, full pale," who narrated the "sad-tun'd tale"; "Sometimes her level'd eyes their carriage ride, As they did battery to the spheres intend." (22, 23.) The maid, in A Lover's Complaint, described how her lover had woo'd her, as a supplicant, whose sighs extended, "To leave the battery" that her heart made against his. (276, 277.) 1 Twelfth Night, Act V, Scene I. 23 Bl. Com. 25; 1 Chitty, Pl. '1 Chitty, Pl. (Gr. Ed.) 266. 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, For common justice, you're as pregnant in 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 Measure for Measure, Act I, Scene I. 2 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. 'Measure for Measure, Act I, Scene III. 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." 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.) '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. |