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Most ignorant of what he 's most assured,
His glassy essence,-like an angry ape,

Plays such fantastic tricks before high heaven,
As make the angels weep: who, with our spleens,
Would all themselves laugh mortal.

We cannot weigh our brother, with ourself:
Great men may jest with saints: 'tis wit in them;
But, in less, foul profanation.

Ang. Why do you put these sayings upon me?
Isab. Because authority, though it err like others,
Hath yet a kind of medicine in itself,

That skims the vice o' the top; Go to your bosom;
Knock there; and ask your heart, what it doth know
That's like my brother's fault: if it confess

A natural guiltiness, such as is his,

Let it not sound a thought upon your tongue
Against my brother's life."

This colloquy denotes a very accurate knowledge of the underlying principle of the pardoning power and that it is essentially an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the particular individual receiving the pardon from the punishment the law prescribes for the crime committed.2 As all pardons are necessarily in derogation of law, if the pardon is equitable, the law is bad, since good laws should be rigidly enforced and violations thereof ought not to be condoned or excused. But back of this, as human nature is frail, at best, the pardoning power is recognized, in order to prevent injustice, or to show mercy, in given cases, when to permit the law to be enforced would entail injustice. That the Poet had a clear and accurate understanding of this reason for the lodgment of the power invoked by Isabella cannot be doubted, after a perusal of this play.

1 Measure for Measure, Act II, Scene II.

27 Pet. 160.

'Bouvier's Law Dict.

Referring to the pardoning power, as an act of clemency, the Poet, in Comedy of Errors (Act I, Scene I) makes the Duke say:

Sec. 27. Punishment for seduction by Venetian law.

"Duke.

morrow,

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Your partner, as I hear, must die to

And I am going with instruction to him.
Grace go with you. Benedicite.

"Duke. But, though thou art adjudged to the death,

And passed sentence may not be recalled,

But to our honour's great disparagement,

Yet will I favor thee in what I can."

In King Richard II, the Duchess of York, pleading for the life of her son, to Bolingbroke, is made to say:

"Duch. Nay, do not say, stand up;

But, pardon, first; and afterwards, stand up.
And if I were thy nurse, thy tongue to teach,
Pardon-should be the first word of thy speech.

I never longed to hear a word till now;
Say-pardon, king; let pity teach thee how;
The word is short, but not so short, as sweet;

No word like pardon, for king's mouth's so meet."

(Act V, Scene III.)

After discovery of his treason, the Earl of Cambridge, said to King Henry V: "Cam. God be thanked for prevention; which I, in sufferance heartily will rejoice, beseeching God and you, to pardon me." (Act II, Scene II.)

In replying to Stanley's plea for pardon, for his servant, King Edward said, in King Richard III: "K. Edw. when your carters, or your wafting-vassals, Have done a drunken slaughter, and defac'd The precious image of our dear Redeemer, You straight are on your knees for pardon, pardon; And I, unjustly, too, must grant it." (Act II, Scene I.)

Replying to the good offices of the King, as conveyed by Capucius, on her death bed, Queen Katherine said, in King Henry VIII: "Q. Kath. O my good lord, that comfort comes too late; 'tis like a pardon after execution." (Act IV, Scene I.)

In his death struggle Antony said to Cleopatra:

"Ant.

I will o'ertake thee, Cleopatra, and weep for my pardon." (Act IV, Scene XII.)

Reflecting upon his own guilt the King observes, in Hamlet: "King. May one be pardon'd and retain the offence?" (Act III, Scene III.)

Juliet. Must die to-morrow: O injurious law,
That respites me a life whose very comfort
Is still a dying horror."1

It is written that the law in question, as presented in the old tale, from which this play is taken,2 provided that the offender "should lose his head, and the woman offender should ever after be infamously noted." It will thus be seen that this punishment affords but little consolation to the injured party, as the future life would be a "comfort," but still "a dying horror."

Sec. 28. The severe judge.

"Escal. You have paid the heavens your function, and the prisoner the very debt of your calling. I have laboured for the poor gentleman, to the extremest shore of my modesty; but my brother justice have I found so severe, that he hath forced me to tell him, he is indeed-justice.

Duke. If his own life answers the straitness of his proceeding it shall become him well; wherein, if he chance to fail, he hath sentenced himself."4

"Justice" was a title given, in England, to the judges of the common-law courts," and the same title is used in the United States, to indicate the presiding officers of such courts in the various State and Federal tribunals. It is a customary form to refer to an associate justice of such courts as "my brother justice."

"The straitness of his proceedings," refers to the details of the mode of carrying on the case against Claudio. "Proceeding" at common law, was the regular mode of carrying on a lawsuit."

1

1 Measure for Measure, Act II, Scene III.

'Hecatommithi, of Giraldi Cinthio, published in Venice, in 1566. 'Rolfe's Measure for Measure, p. 174, notes.

4 Measure for Measure, Act III, Scene II.

Anc. Laws and Inst. of Eng.; Coke, Litt. 71b; Leges Hen. I, Secs. 24, 63.

Bouvier, Law Dict.

Sec. 29. Common law marriage contract.—
"Duke. Nor, gentle daughter, fear you not at all:
He is your husband, on a pre-contract:
To bring you thus together, 'tis no sin;
Sith that the justice of your title to him.
Doth flourish the deceit. Come, let us go;
Our corn's to reap, for yet our tithe's to sow."

This verse treats the party to a "pre-contract" of marriage, after cohabitation as the lawful wife of the other contracting party and this was strictly in accordance with the common law. At common law no form of contract, nor was any ceremony essential to constitute the relation, but mutual assent to the relation of husband and wife followed with cohabitation, in reliance thereon, was sufficient to make a man and woman husband and wife.2 But it may be doubted if a cohabitation, procured by false personation of another, would be such consummation of the contract as to consummate the relation, in the absence of a decree by such authority as backed up this intrigue or the use of such arbitrary force as made the recognition of the contract afterwards certain.

3

The use of the term, "pre-contract," as remarked by Mr. Davis, "shows" that the distinction between marriage per verba de presenti, and that per verba de futuro "was plainly drawn in Shakespeare's mind."

The following occurs in 1' Henry IV, between Falstaff and Prince Henry: "Fal. Shall I? O rare: By the lord I'll be a brave judge. P. Hen. Thou judgest false already; I mean, thou shalt have the hanging of thieves and so become a rare hangman." (Act I, Scene II.)

Speaking of the Justice's duties, among those of man, whom heaven hath divided into various functions, the Archbishop of Canterbury, in Henry V, said: "Cant. The sad ey'd justice, with his surly hum, delivering o'er to executors pale, the lazy yawning drone." (Act I, Scene II.)

1 Measure for Measure, Act IV, Scene I.

22 Roper, Husb. & Wife, 445, 475.

10 Clark & F. Hou. L. 534.

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Sec. 30. Plea for justice.

"Isab. Justice, O, royal Duke; Vail your regard
Upon a wrong'd, I'd fain have said, a maid;

O worthy prince, dishonor not your eye
By throwing it on any other object,
Till you have heard me in my true complaint,
And give me justice, justice, justice, justice."i

Mr. Webster once said:

est of man on earth."

"Justice, sir, is the great interTo insure justice, is one of the

main objects of all social compacts and to come nearer the standards by which it may be realized, is the pride of all civilizations. Institutions for the administration of justice have now reached the greatest perfection that the world has ever seen, and the broad, beneficent idea of "equal and exact justice, to all men, of whatever state or persuasion, religious or political," proclaimed by one of the greatest of the architects of our own free government, as a proper gauge for the rights of man, has become the guiding star by all liberty-loving people of the world. Justice is defined as the "Constant and perpetual will to render unto every man his due." Commutative justice is the virtue of rendering unto every man that which belongs to him, as nearly as may be; to make an equality between the parties, to the end that no one may be the gainer by another's loss. Distributive Justice consists in distributing rewards and punishments to each one, according to his merits, so that neither equal persons have unequal things, nor unequal persons things that are equal." Justice is also said to be exterior and interior, the former being the object of jurisprudence and the latter the object of morality alone. But in the broadest sense, it is a simple rule of right, with the object of giving every one

1 Measure for Measure, Act V, Scene I.

2 See, Judiciary, &c., Proc. 24th Meeting Mo. Bar Ass'n.

'Justinian, Inst., b. 1, tit. 1; Coke, 2 Inst. 56.

Toullier, Droit, Civ. Fr. tit. prel. n. 5.

Ante, idem.

Droit, Civ. Fr. tit. prel. n. 6, 7.

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