had been "chew'd, swallowed and digested," or otherwise committed after full reflection and premeditation, which only added to the degree of the guilt.

Sec. 258. Motive for crime.

"Cam. For me, the gold of France did not seduce, Although I did admit it as a motive,

The sooner to effect what I intended."

"Motive" is the inducement, cause or reason why a given act is done. In the criminal law, motive is always an essential element of the crime and the motive is always

In Coriolanus, Sicinius refers to capital crimes, as follows: "Sic. Peace. We need not put new matter to his charge: What you have seen him do and heard him speak,

Beating your officers, cursing yourselves,

Opposing laws with strokes, and here defying

Those whose great power must try him; even this,

So criminal, and in such capital kind,

Deserves the extremest death." (Act III, Scene II.)

Capital punishment, by all governments, both ancient and modern, has been deemed to be within the legitimate power of government, but it is doubted, by theoretical writers, if such punishment is consistent with natural or Divine Law. As laws are enacted to protect society, it may be doubted if death should be inflicted except in cases where it is absolutely essential and when the law can be maintained in no other way.. This is the meaning given the offense as viewed by the speaker in the above verse, for he urges that the crime is "in such capital kind." that it "deserves the extremest death." (Boccacia, chap. 28.)

In King Lear, Albany arrests Edmund as follows: "Stay yet; hear reason.-Edmund, I arrest thee on capital treason." (Act V, Scene III.)

Speaking of his father's death, in Hamlet, Laertes asks the King: "But tell me, Why you proceeded not against those feats, So crimful and so capital in nature." etc. (Act IV, Scene VII.)

'Henry V, Act II, Scene II.

sub.

Bouvier's Law Dictionary; 1 Bishop's Cr. Law, sec. 221, et

proper to be explained or looked into, in order to show the criminal intent with which the crime was committed.'

The earl of Cambridge here, denies that the gold received from France furnished the motive for the crime of treason, he had confessed himself guilty of, although he had admitted this was the motive for his entering into the conspiracy to kill the king, but as he does not show an absence of criminal intent and freedom from wrongdoing, he consequently makes no legal excuse for his connection with the treasonable design.

Sec. 259. Money paid in earnest.

"K. Hen.

person,

You have conspir'd against our royal

Join'd with an enemy proclaim'd, and from his coffers,

Receiv'd the golden earnest of our death."

Money paid in "earnest," is a partial payment for the purpose of binding the bargain.3 Certain agreements for the sale of personal property are not legal unless something in "carnest" is given to bind the contract, and a payment of "earnest" gives the buyer the right to demand a performance of the contract."

The King here speaks of his own death as the consideration for which the payment was made and after the conspirators had "receiv'd the golden earnest" of his death, they could not back down from the performance of the contract and were legally bound to kill him, as they had agreed to do, for the money paid them.

11 Bishop's Cr. Law, sec. 221; 1 Chitty, Cr. Law, 233; 8 Coke. 146; 1 Greenleaf Evid. sec. 18; 9 Coke, 8la.

2 Henry V, Act II, Scene II.

22 Kent's Comm. 389.

'Benjamin, on Sales, p. 161; Tiedeman, on Sales, sec. 71. Ante idem: 2 Bl. Comm. 447.

Timon of Athens, tells Phrymia and Timandra on their quest for gold from him: "Tim. More whore, more mischief first; I have given you earnest." (Act IV, Scene III.)

Sec. 260. Divesting property rights.

"Exe.

mighty,

He wills you, in the name of God Al

That you divest yourself, and lay apart
The borrow'd glories, that, by gift of heaven,
By law of nature, and of nations, 'long
To him and to his heirs; namely, the crown."

Divest, being practically the same word as to devest, used at common law, as the Poet explains it in this verse, is the dispossession of one's rights, property or privileges, before enjoyed.2

The realm of France is treated as belonging to King Henry and his representative demands the immediate surrender of the kingdom, in accordance with his rightful title, and this title is urged both according to the law of nations and that of nature, meaning his claim to the kingdom as the descendant of Edward III, who had established his right to the realm by force of arms, and lineal descent.

Sec. 261. Respondeat superior not applicable to King and subjects.

"K. Hen. So, if a son, that is by his father sent about merchandise, do sinfully miscarry upon the sea, the imputation of his wickedness, by your rule, should be imposed upon his father that sent him: or if a servant, under his master's command, transporting a sum of money, be assailed by robbers, and die in many unreconciled iniquities, you may call the business of the master the author of the servant's damnation-But this is not so: the king is not bound to answer the particular endings of his soldiers, the father of his son, nor the master of his servant; for they purpose not their death, when they purpose their services. Besides, there is no king, be his cause never so spotless, if it come to the arbitrement of swords, can try it out with all unspotted soldiers. Some, peradventure, have on them the guilt of pre

meditated and contrived murder; some, of beguiling virgins with the broken seals of perjury; some, making the wars their bulwark, that have before gor'd the gentle bosom of peace, with pillage and robbery. Now, if these men have defeated the law, and outrun native punishment, though they can outstrip men, they have no wings to fly from God: war is his beadle, war is his vengeance; so that here men are punished, for before-breach of the kings laws, is now the kings quarrel where they fear'd the death, they have borne life away; and where they would be safe, they perish: Then if they die unprovided, no more is the king guilty of their damnation, than he was before guilty of those impieties, for which they are now visited. Every subject's duty is the king's; but every subject's soul is his own."

The reasoning of the King here is in strict accordance with the relation of king and subject, as viewed at the common law and the rule of law, which made the principal liable for the acts of the agent, performed in pursuance of an express authority, or within the general scope of his powers, as agent, was held not to apply to the relation of king and subject. Instead of the rule respondeat superior, (let the principal answer) when it came to king and subject the rule was rather respondere non sovereign, for the king was not under the authority of man, but of God and the law, or, as the maxim puts it, "Rex non debet esse sub homine, sed Deo et lege."3

The Poet makes the king give the underlying reason for the rule of law, which shaped itself into the maxim quoted, better, perhaps than half the lawyers of his period

'Henry V, Act IV, Scene I.

'Coke, 4' Inst. 114.

'Broom's Legal Maxims (3' London ed.) 46, 111; Bracton, 5.

But as the King reasons, penal responsibility, in the law, is always personal, and the obligation to respond or answer for an act never applies in the absence of a commission of the act, in person, or unless it was committed by someone standing in the place of the person sought to be held liable therefor.

could have done, and the reasoning to shift the responsibility for a war that he had brought on, from his own shoulders to the vengeance of the Divine Economy, is in keeping with the religious training which prompted the charge of an attribute even beneath that of the beasts of the field-for these even, cherish no such thing as vengeance to the Almighty, in order, no doubt, to shift the blame from other shoulders, on which it ought to lie.

Sec. 262. Bearing testimony.—

"Flu.

I hope your majesty is pear me testimony, and witness, and avouchments, that this is the glove of Alencon, that your majesty is give me, in your conscience now."

Bearing testimony is to make a statement, as a witness, under oath or affirmation, to a given state of facts. This is the meaning of the word as used here, and the speaker calls upon the king to corroborate him, or bear witness, that the glove he had was the glove given him by the king.

"Flu. An please your majesty, let his neck answer for it, if there is any martial law in the 'orld."

"Martial law" is that military rule or authority, which exists in time of war, and is recognized by the laws of war, as to persons within the scope of active military operations, in so far as it may be necessary, in order to fully carry on the purposes or objects of the war. Martial law.

'Henry V, Act IV, Scene VIII.

་

Bacon, Abr., Evidence, (A); 1 Greenleaf, Evid., secs. 98, 328. 'Henry V, Act IV, Scene VIII.

1 Kent's Comm. 377; DeHart Mil. Law, 13-17; O'Brien, Mil. Law, 26, 30; Tyler, Courts Martial, 11. 27, 58, 62, 105.

Basset said to Vernon, in 1' Henry VI. after being struck by the latter: "Bas. Villain, thou know'st the law of arms is such,

That, who so draws a sword, 'tis present death:

Or else this blow should broach thy dearest blood."

(Act III, Scene IV.)