nurse could not be found, is, indeed, an extreme criticism of such officers' duties, and the ignorance of such officer is presented by the fact that it was not known that a lamb bleats, while a calf baes. Back of this humor, however, is the legal proposition, embodied by the question of the Watch, as to his right to arrest without a warrant and the reply, that by virtue of his office, he had such right. This is strictly according to law, for any peace officer, such as a constable or watchman, may arrest without a warrant, when a crime is committed in his presence, or when he has reasonable grounds to believe a felony has been committed and that the party arrested is the felon.1 Sec. 44. False imprisonment. "Dogb. This is the end of the charge. You, constable, are to present the prince's own person; if you meet the prince in the night, you may stay him. Verg. Nay, by'r lady, that I think, he cannot. Dogb. Five shillings to one on't, with any man that knows the statutes, he may stay him; marry, not without the prince be willing: for, indeed, the watch ought to offend no man; and it is an offense to stay a man against his will."2 This graceful backing down from a wrong position on the law, as such petty officers are accustomed to do, by drawing a nice distinction, such as is done in this case, is well presented here. The charge that the constable represents the prince's own person, means as a conservator of the peace. The charge that he possesses the authority to detain the prince. himself, when questioned, leads to the adroit retraction, by the use of the distinction that he may be restrained, if he so desires. Then following this qualification of the former position, is the proper legal idea of a false im 13 Taunt. 14; 3 Campb. 420; 4 Bl. Comm. 292; 1 Saund. 77. 2 Much Ado About Nothing, Act III, Scene III. prisonment or arrest, arising from a wrongful detention of any man, against his will. At common law, any unlawful restraint of a man's liberty, whether in a place used for imprisonment generally, or in a place so used on the particular occasion, with or without bolts and bars, constituted a false imprisonment.1 Of course the arrest of a criminal or one believed to have committed a known offense, was not within this rule, for, in such case the detention was not held to be wrongful. But that the elements of a false arrest were duly understood by the Poet, is evidenced by the last line of this verse. Sec. 45. Preliminary hearing.— "Dogb. Go, good partner, go; get you to Francis Seacoal; bid him bring his pen and inkhorn to the goal; we are now to examination these men. Verg. And we must do it wisely. Dogb. We will spare for no wit, I warrant you; here's that (touching his forehead) shall drive some of them to a non-com: only get the learned writer to set down our excommunication, and meet me at the goal.3 As the evidence of the witnesses was all written down at the preliminary hearings, before magistrates, when one was charged with an offense, to preserve the evidence for the benefit of the court and jury, which would try the accused for the offense, this is the proceeding here referred to, in requesting the "pen and inkhorn," as a preliminary to the examination. The expression that some of the offenders shall be driven, by the play of his wit, "to a non-com," evidently means that he will push them to the extreme of madness. In legal parlance, a non-compos mentis is one not of sound 12 Bishop, Cr. Law, 669; 4 Bl. Comm. 218. mind or memory and the terms signify all species of madness, whether arising from idiocy, sickness, or otherwise.1 The abbreviation of these legal terms, by the constable, is no doubt used, to show his extreme ignorance and arrogance, like the suffix to the word "examine," in the third line; the egotistical assurance of the constable, and the use of the prefix and wrong use of the word in the last line of the verse quoted. Sec. 46. Examination before magistrate. "Dogb. Is our whole dissembly appeared? Verg. O, a stool and a cushion, for the sexton. Sexton. Which be the malefactors? Dogb. Marry, that am I and my partner. Verg. Nay, that's certain; we have the exhibition to examine. Sexton. But which are the offenders that are to be examined? Let them come before master constable."2 The ignorance of the constable is again portrayed, with seeming pleasure by the Poet, in this presentation of an examination before the magistrate. Such examinations were usually accomplished by bringing the witnesses and the accused before a justice of the peace or peace officer, and writing down the evidence of the witnesses. If no cause for his detention should be shown, the prisoner was discharged, but if a crime was uncovered, or sufficient suspicion attached to the charge, to warrant putting him upon his trial, the evidence of the witnesses was certified by the magistrate to the court where he was to be tried, with the recognizance of the witnesses and the prisoner was committed to jail or placed under bond to answer to the charges filed against him.3 The word malefactor. meaning a wrongdoer, is one who has committed some 1 Coke, Litt. 247; 4 Coke, 124; Shelford, Lun. 1. Much Ado About Nothing, Act IV, Scene II. 2 Carr & K. 223; 4 Bl. Comm. 296; 2 Leach, Cr. Cas. 552. crime, but as the term is usually only applied to a person, after conviction for some offense, it is irregular to so term one who is merely accused; but as it seemed a part of the Poet's plan to show how soon the conviction or holding of the accused would follow, in such a court, after the filing of the charge, the term is perhaps used with this intent, in this instance. "Dogb. Dost thou not suspect my place? Dost thou not suspect my years?-O that he were here to write me down-an ass-but, masters, remember that I am an ass; though it be not written down, yet forget not that I am an ass:-No, thou villain, thou art full of piety, as shall be proved upon thee by good witness. I am a wise fellow; and, which is more, an officer; and, which is more, a householder: and, which is more, as pretty a piece of flesh as any in Messina; and one that knows the law, go to; and a rich fellow, enough, go to; and a fellow that hath had losses; and one that hath two gowns, and everything handsome about him:-Bring him away. O, that I had been writ down,-an ass.' 772 This portrayal of the ignorance of the constable, is another evidence of the Poet's dislike for this class of officers. The misnomer that the prisoner was full of "piety" instead of guilt, and that they did not "suspect' his place or years, as well as the bragging and egotistical bearing of the speaker, show the ignorant bravado that too often characterizes such petty officers. The claim to being a "householder," illustrates the basis of certain rights of citizenship which attach to a “householder," or one who has and provides for a household, as distinguished from one who is not so possessed. The Archbishop of Canterbury, speaking of magistrates, in Henry V, said: "Cant. . some, like magistrates, correct at home." (Act I, Scene II.) 1 Bouvier, Law Dict. 2 Much Ado About Nothing, Act IV, Scene II. Bouvier, Law Dict. Sec. 48. Preliminary examination for burglary."Dogb. Yea, marry, that's the eftest way:-Let the watch come forth-Masters, I charge you, in the prince's name, accuse these men. 1 Watch. This man said, sir, that Don John, the prince's brother, was a villain. Dogb. Write down-prince John a villain-why, this is flat perjury, to call a prince's brother-villain. Dogb. Pray thee, fellow, peace; I do not like thy look, I promise thee. Sexton. What heard you say him else? 2 Watch. Marry, that he had received a thousand ducats of Don John for accusing the lady Hero wrongfully. Dogb. Flat burglary, as ever was committed. Verg. Yea, by the mass, that it is."1 This portrayal of the ignorance and misuse of the legal terms, by the constable, while illustrating a common trait. of such petty officers, seems to be repeated with a method. The crime of "perjury," of course, was not committed by the calling of Don John a villain, but if any offense this would be slander only, as it would be slander, instead of "burglary," to wrongfully accuse Hero. The examination of the witnesses here followed was that prescribed by the common law by a magistrate, to ascertain if a bailable offense had been committed. At common law the accused could not be examined, but only the witnesses against him. Hence, the injunction to the accused, to keep his peace. Sec. 49. Trial by manly combat."Leonato. Thou hast so wrong'd mine inno cent child and me That I am fore'd to lay my reverence by, 1 Much Ado About Nothing, Act IV, Scene II. 24 Bl. Comm. 296; 2 Leach, Cr. Cas. 552. Roscoe, Cr. Evid. 44; Phillipps, Evid. 106. Much Ado About Nothing. Act V, Scene I. |