epitaphs; Make dust our paper, and with rainy eyes, And yet, not so, for what can we bequeath, An executor is one to whom another commits by his last will, the execution of his will and testament. An executor has authority over the personal estate of the decedent and it is his duty to dispose of the personal estate and pay the legacies and bequests bequeathed by the testator. If there was no property owned by the testator, of course there would be no duty to be performed by an executor, hence the King concludes, as he has nothing to bequeath, such an appointment is useless. Sec. 209.-Failure to speak, in criminal case-Standing mute. "Queen. O. I am pressed to death, Through want of speaking."3 This line no doubt refers to the ancient practice at the common law, when a prisoner charged with treason, lar mother, (I must call you so,) Be the attorney of my love to her." (Act IV, Scene IV.) Stanley thus greets Richmond, in King Richard III: "Stan. I, by attorney, bless thee from thy mother, Who prays continually for Richmond's good." (Act V, Scene III.) 'King Richard II, Act II, Scene I. 21 Williams. Exec. 185; 9 Coke 88; Coke, 2nd Inst. 236. Grandpre, the French lord, before the battle of Agincourt, said of the English: "Grand. . . their executors, the knavish crows, fly o'er them all, impatient for their hour." (Henry V, Act IV, Scene II.) 3 King Richard II, Act III, Scene IV. ceny, or other felony, stood mute and refused to plead or answer to the charge and state whether he was guilty or not guilty. According to the ancient books, he was not taken as confessing to the crime, in case the offense was treason, or such high felony, but by way of punishment for his obstinacy in thus standing mute, he was confined to a low, dark chamber in the prison and with his body naked and outstretched, a great iron weight was placed upon him. and thus he was so pressed without food, except bread and water, he either died, or answered to the charge against him.1 The effect of standing mute was thus to press the life out of the prisoner by such practice and hence the Queen, "Through want of speaking," claimed that she was literally "pressed to death." 1 Fleta, lib. 1, c. 34, sec. 33; Brit. C. C. 4, 22. This inhuman practice was abolished by statute in England, in 2 Geo. III, c. 20. It seems strange that with advancing civilization, such terrible things were countenanced by the law until such modern times. Pandarus, refers to this barbarous custom of the English courts, in advising Troilus and Cressida to press the bed to death, because it "stands mute," as to their "pretty encounters," thereon, in Troilus and Cressida, as follows: "Pan... I will show you a chamber and a bed, which bed, because it shall not speak of your pretty encounters, press it to death: away." (Act III, Scene II.) On arraignment of a prisoner, under the old English Common Law, he was enjoined to hold up his right hand, by which act he admitted that he was the person named in the indictment. The Clerk then asked him: "Are you guilty or not guilty?" If he answered "Not guilty" he was then asked: "Culprit, how will you be tried," and the prisoner replied: "By God and my country," when the Clerk retorted, "God send you a good deliverance," and the trial then proceeded. If the accused refused to or did not speak at all, he was said to "stand mute," and in treason or a misdemeanor, his silence was a confession of guilt, but if the offense was a felony, the Court determined, officially, if the standing mute was "of malice," Sec. 210. Signories. "Boling. These differences shall all rest under gage, Till Norfolk be repealed: repealed he shall be, And, though mine enemy, restored again To all his land and signories; when he's return'd Signories is here used in the sense of the land or territory over which the lord holds jurisdiction, by virtue of his recognition as the owner of such land, by his sover or by "visitation of God," and, if the latter, the trial proceeded; but, if the former, the culprit was pressed to death, by a heavy weight, if he or she continued to stand mute. Many cases are reported where this barbarous treatment was accorded defendants who refused to plead. Margaret Clitherow, a married woman, under a felony charge, who refused to plead, was pressed to death, at York, on Lady Day, March 25th, 1586, She was given different opportunities to plead but persisting in her stubbornness, was disrobed and placed on her back and a heavy door was placed upon her, with weights, which broke her ribs and mashed her to death. Major Strangeways arraigned, in 1658, for the murder of his brother-in-law, refused to plead, to avoid forfeiture of his estate on his conviction. The weight was placed upon him angle-wise and not being sufficient to kill him outright, the bystanders added their weight and ended his misery. In 1726, a man named Burnworth, refused to plead to the charge of murder, but after being press'd for an hour or so, with four hundred weight of iron, he recanted and entered his plea and was convicted and hanged. This practice was called peine forte et dure. The punishment was established during the reign of Henry IV, in the 15th century and continued until 1772, when by statute, (12 Geo. III, c. 20.) standing mute in felony was made equivalent to a conviction. But in 1827, by statute, (7 and 8 Geo. IV, c. 28) a plea of not guilty was entered for one standing mute, for any cause, and this more humane practice continues to the present day. (See article by Francis Watt, The Law's Lumber Room, published by John Lane, London, also in 14 Law Notes, pp. 31, 33, for May 10th, 1910.) 'King Richard II, Act IV, Scene I. eign. It is essentially a right or thing claimed or taken by virtue of a sovereign prerogative. Bolingbroke declares that he will so far forgive his enemy Norfolk as to recognize his landed rights by the repeal of the decree for his banishment and to let his titles rest undisputed, until his trial, by battle, against Aumerle, after his return. Sec. 211. Under gage. "Boling. Lords appellants, your differences A gage is something given as a security or by way of pledge for the performance of a given act by the person entering into the gage, which is forfeited for failure to perform, as per agreement. In other words, the king here declares that until the day of trial, each shall be under surety for his appearance at the trial by battle and until that time the rights of all parties shall stand in statu quo. Sec. 212. Day of trial. "North. Well have you argu'd sir; and, for your pains, A trial is the examination, before a competent tribunal, according to law, of the facts put in issue in a cause, for 12 Bl. Comm. 438. lows: "West. Westmoreland replies to Lord Mowbray, in 2' Henry IV, as folWere you not restor'd to all the duke of Norfolk's signories, your noble and right well remember'd father?" (Act IV, Scene I.) 2 King Richard II, Act IV, Scene I. 'Granville, lib. 10, c. 6. 4 King Richard II, Act IV, Scene I. the purpose of determining such issue or issues.1 As a trial is usually had by witnesses and this necessitates time to get the evidence at hand, a "day of trial" is usually set and upon that day the issues are decided upon the evidence submitted.2 Sec. 213. Answer. "Boling. Lords, you that are here under our arrest, Procure your sureties for your days of answer."3 An answer is a defense in writing made by a defendant to the charge contained in a bill, or information filed against him, in a suit pending in court. An answer is generally required to meet the charges of the bill or information filed and to contain matters of fact, not arguments or irrelevant matter, without repetition or undue prolixity. The lords here arrested were required to furnish sureties for their appearance at the day of trial, which is referred to as the day of answer. Sec. 214. Crimes. "North. No more, but that you read, These accusations and these grievous crimes, A crime is a wrongful act which the Government notices and punishes because it is injurious to the public. 2 19 Coke, 30; 3 Bl. Comm. 331; 3 Bl. Comm. 333. Originally a trial at nisi prius-where issues of fact were determined-was before a justice in eyre, but afterwards, by statute of Westminster, (13 Edw. I, c. 30) the trial was had before a justice of assize. (3 Sharsh. Bl. Comm. 353.) 3 King Richard II, Act IV, Scene I. 2 Brown, Civ. Law, 371n. King Richard II, Act IV, Scene I. 1 Bishop, Cr. Law, Sec. 43. |