This was the custom of the common law, when a litigant asserted his writ of right, and chose to defend his right by duel.1 Shakespeare was evidently familiar with this barbarous practice, for he refers to the trial by duel, or battle, in different plays. The demandant met the defendant in an open test of strength and they fought until one or the other was killed or vanquished, and the victor was held to have won his suit. If the demandant died a natural death before the battle, or duel, was fought, he had a right to be represented by his son, born in lawful wedlock, but if his death was by any fault or neglect of his, this was held to be an end of the contest, in favor of his opponent.3

Sec. 50. Count-Extra-judicial confession on.— "Bora.

Sweet prince, let me go no further to mine answer; do you hear me, and let this count kill me. I have deceived even your very eyes: what your wisdoms could not discover, these shallow fools have brought to light; who, in the night, overheard me confessing to this man, how Don John, your brother, incensed me to slander the lady Hero; how you were brought into the orchard, and saw me court Margaret, in Hero's garments; how you disgraced her, when you should marry her: my villany they have upon record; which I had rather seal with my death, than repeat over, to my shame: the lady is dead upon mine and my master's false accusation; and, briefly, I desire nothing but the reward of a villian."

The confession of record, or the examination of the witnesses, by which the evidence of the offense was transcribed, is referred to, by the speaker, by the statement of the fact that "my villainy they have upon record." This was a repetition of the extra-judicial confession that the

11 Reeve's History Eng. Law, p. 393.

2 Richard II, Act I, Scene I; Act IV, Scene I.

1 Reeve's History Eng. Law, supra.

4 Much Ado About Nothing, Act V, Scene I.

watchman heard him in the night "confessing to this man." The willingness expressed, to "let this count kill me," refers to the different charges or paragraphs in a declaration or indictment, by which the pleader set up the offenses or the causes of action. Each count usually refers to a different offense or cause of action.2

Sec. 51. False testimony.

"D. Pedro. Officers, what offense have these men done? Dogb. Marry, sir, they have committed false report;

moreover, they have spoken untruths; secondarily, they are slanders; sixth and lastly, they have belied a lady; thirdly, they have verified unjust things: and, to conclude, they are lying knaves."

The officer here-through the Poet's satire-attempts to make of the offense of slander and of bearing false testimony, many separate distinct offenses, which are, in reality, the same, as the Poet clearly knows. To circulate false reports; to speak untruths and to have "belied a lady," are all different ways of charging a slander, but to "verify unjust things," while a mere slander, if made out of court, too, would be bearing false testimony, if made in court, hence would be a criminal offense, for if a witness swears to what he knows to be untrue, this is a crime.1

Sec. 52. The scales of justice.—

"Dogb. Come, sir; if justice cannot tame you, she shall ne'er weigh more reasons in her balance; nay, an you be a cursing hypocrit once, you must be looked to."

This personification of justice, from the mythological idea of a blind-fold Goddess, dispensing justice, through

1 Gould, Pl. c. 4; Stephen, Pl. 279.

2 Ante idem.

3 Much Ado About Nothing, Act V, Scene I. 'Roscoe, Cr. Evid. 362.

5 Much Ado About Nothing, Act V, Scene I.

the medium of evenly balanced scales, upon which the rights of litigants were weighed, is the current way of typifying justice, because of the prevalency of the myth, which so represented this virtue. As the reasons for and against a criminal, in the investigation of a charge, would be the consideration entering into the conclusion of his guilt or innocence, the expression, "she shall ne'er weigh more reasons in her balance," is tantamount to saying that the Goddess herself would be so convinced of the offender's guilt, in this instance, that if he was not punished, the scales of justice would be wholly discarded.

Referring to the enforcement of the law against him, when he was Prince of Wales, King Henry V, said to the Lord Chief Justice, in 2' Henry IV:

"King. You are right, justice, and you weigh this well;

Therefore still bear the balance and the sword."

The Goddess of Justice, like the God of Love, was painted blind that she might not look with the eye, but with the mind,

or, as the Poet expresses it, in the latter instance,

"Love looks not with the eyes, but with the mind,

And therefore is winged Cupid painted blind."

(Midsummer Night's Dream, Act I, Scene I.)

King Henry VI said, in speaking of the offenses committed by Duchess of Gloster:

"K. Hen. . . And poise the cause in justice's equal scales, Whose beam stands sure, whose rightful cause prevails." (Act II, Scene I.)

Before murdering Desdemona, Othello observes of her breath: "O balmy breath, that dost almost persuade Justice to break her sword."

(Act V, Scene II.)

Sec. 53.

CHAPTER VII.

"MIDSUMMER NIGHT'S DREAM."

Jurisdiction of Athenian Laws.

54. Parent and Child, under Greek Law.

55.

56.

Parent's right of Infanticide, by Athenian Law.
Pleading for Fee.

57. Parent's Consent to Child's Marriage.

58. Limitation of Municipal Law.

Sec. 53.

Jurisdiction of Athenian laws.

"Lys. A good persuasion; therefore, hear me Hermia. I have a widow aunt, a dowager

Of great revenue, and she hath no child;

From Athens is her house remote seven leagues,
And she respects me as her only son.

There, gentle Hermia, may I marry thee;

And to that place the sharp Athenian law cannot pursue us.'

This reference to the "widow aunt," it is believed, is not so much to show a guardian, who could consent to the marriage, as to state the fact that her home would furnish a haven, beyond the jurisdiction of the law of Athens. If the residence of the widow aunt, was, as stated, a distance equivalent to seven English leagues, it would be about twenty-one miles from Athens and this distance would no doubt have carried Lysander and Hermia into another district, where different laws obtained. For it must be remembered that the free states of Greece were merely cities with their districts, and each district possessed its own constitution and had exclusive management of its own concerns.2 The different states of Attica, for instance, had their respective heads, or presidents, and the different peoples or tribes adopted their own laws and regulations in so far as they did not con

1 Midsummer Night's Dream, Act I, Scene I.

3 St. John's Manner & Customs of Ancient Greece, 76, 77; Schoman's Dissertation on the Assemblies of the Athenians, 346, 356, 358.

flict with the general laws of the State. So if the distance to be traveled would carry the lovers into another district of the state, it was no doubt, true, as the Poet states, that the "sharp Athenian law" could not pursue them.

Sec. 54. Parent and child, under Greek law.

"Ege.

And, my gracious duke,
Be it so she will not here, before your grace,
Consent to marry with Demetrius,

I beg the ancient privilege of Athens;
As she is mine, I may dispose of her;
Which shall be either to this gentleman,
Or to her death; according to our law,
Immediately provided in that case."2

Egeus here claimed the law, as it was known to exist, not only in ancient Greece, but in Egypt, Persia and Rome, as well. According to the "ancient privilege of Athens," the child was regarded more as the property of the parent than as an independent rational being, and a father was allowed a very absolute dominion over the child.* The Twelve Tables," of the Romans, were no doubt taken by the deputies from the laws of ancient Greece and the fourth of these tables gave the father not only the power of sale, but the power of life and death, as well, over his children. After the expulsion of Tarquin,

1 Hereen, on Political History of Ancient Greece (Oxford ed.), 1834.

2 Midsummer Night's Dream, Act I, Scene I.

St. John's Hist. Manners & Customs Anc. Greece, i, 120-125; 2 Kent's Comm. (12 ed.), 204 and note.

Taylors, Elem. Civ. Law, 395, 402; Caesar, de Bel. Gal. lib. 6, c. 19; 2 Kent's Comm. (12 ed.), 204 and note.

Livy, b. 6, c. 1; Heineccii Hist. Juris Civilis, lib. 1, sec. 26; Cicero, Orat. in Cat, 3, 4; Niebuhr, Roman Hist. ii, 235 (edPhil. 1835); 2 Hooke's Roman Hist., c. 27; Gravina, de Ortu et Prog. J. C. 32; 1 Arnold's Hist. of Rome, 284.

6 Gravina, De Jura, Naturalia Gentium et XII Tabularum; 2 Kent's Comm. (12 ed.) 520, 521, and note.