CHAPTER IV. "TWELFTH NIGHT." Sec. 10. Exceptions-Improper conduct. 13. Sheriff's post. 14. Misdemeanors. 15. Grand-jury. 16. Windy side of the law. 17. Action of battery. 18. Party plaintiff. Sec. 10. Exceptions-Improper conduct. "Mar. By troth, Sir Toby, you must come in earlier o' nights; your cousin, my lady, takes great exceptions to your ill hours. Sir To. Why, let her except, before excepted. Mar. Ay, but you must confine yourself within the modest limits of order." This verse refers to the method of trial adopted to preserve the errors of the trial court, for the review of the higher court. As errors occur- or a litigant fails to confine himself "within the modest limits of order," an exception is noted on the records of the trial court, and, at the conclusion of the trial, or within a time fixed by the court, these various errors are presented and signed by the trial judge, as a bill of exceptions, upon which the errors of the trial court are reviewed on appeal. Bills of exception were authorized by Statute in England, in an early day and the practice obtains in the United States to the present day. 'Twelfth Night, Act I, Scene III. '8 East 280; Bouvier, Law Dict. "Westm. 2nd (13 Edw. 1) c. 31. Iago tells Roderigo, in Othello: "Give me thy hand, Roderigo: Thou hast taken against me, a most just exception; but, yet I protest, I have dealt most directly in thy affair." (Act IV, Scene II. ( Sec. 11. Proof-Admission against interest. "Oli. Make your proof. Clo. I must catechise you for it, madonna; good my mouse of virtue, answer me. Oli. Well, sir, for want of other idleness, I 'bide your proof. Clo. Good madonna, why mourn'st thou? Oli. Good fool, for my brother's death. Clo. The more fool you, madonna, to mourn for your brother's soul, being in heaven.-Take away the fool, gentlemen." The proof by which the clown here establishes the fact attempted to be proven is by that method of proof known as securing an admission against interest. To prove a fact is to determine or establish, by competent evidence, that such fact exists or does not exist. The proof adduced here comports to the proper method of establishing a fact in a court of justice, for after the premise and argument of the fact to be established, the strongest proof is the admission against interest, for this kind of proof, because it is against the interest of the party making the admission, carries the strongest probative force. After admitting that her brother's soul was in heaven, the conclusion is drawn that none but a food, would mourn, and thus the fact is established that the mistress is a fool, by her own admission. 'Twelfth Night, Act I, Scene V. 'Ayliffe, Parerg. 442; Greenl. Evid. 'Greenl. Evid. Flavius, on his return to Timon of Athens, with no funds, said to his lord, by way of further assurance of his failure to horrow of his friends: "Flav. If you suspect my husbandry, or falsehood, Call me before the exactest auditors, And set me on the proof." (Act II, Scene II.) After he had been poisoned against his wife, by Iago, Othello tells him: "By the world. I think my wife be honest, and think she is not; I think that thou art just, and think thou art not; I'll have some proof." (Act III, Scene III.) Sec. 12. Misprison.— "Clo. Misprison in the highest degree;-Lady, cucullus non facit manachum; that's as much as to say, I wear not motley in my brain. Good madonna, give me leave to prove you a fool?" Misprison is a term used in the criminal law to signify all misdemeanors, not given some particular name by the law creating the offense. Misprisons are either negative, as where the commission of a crime is concealed, or positive misprison, which is the commission of an offense not otherwise catalogued. Misprisons positive are also denominated contempts or high misprisons, as referred to in this verse. 'Twelfth Night, Act I, Scene V. Coke, 3d Inst, 36. 1 East Pl. Cr. 139; 1 Russell, Crimes, 43. Bl. Com. 9. G 4 Bl. Com. 126. The term, "misprison," as one most familiar to the Poet, is used in various places to indicate an offense, not otherwise classified, as at law. Thus: "Obe. What hast thou done? thou hast mistaken quite And laid the love-juice on some true-love's sight; Of thy misprison must perforce ensue, Some true-love turned, and not a false turn'd true." (Midsummer Night's Dream, Act III, Scene II.) "Misprison" is also used in Love's Labour's Lost, in the following couplet: "Biron. A fever in your blood, why, then incision. (Act IV, Scene III.) The Earl of Northumberland is made to say in 1' Henry IV (Act I, Scene III): "North. Either envy therefore, or misprison is guilty of this fault, and not my son." Speaking of the gift of his friend to himself, the Poet uses the word misprison, in the LXXXVII Sonnet: "So thy great gift, upon misprison growing. Comes home again, on better judgment making." (11, 12.) Sec. 13. Sheriff's post. "Mal. he says, he'll stand at your door like a sheriff's post, and be the supporter to a bench, but he'll speak with you." Sheriffs and such public officers have to give notice of the proclamations and sales, under the process of the court, of which they are officers, and this gave rise, in ancient times, to the custom of such officers erecting a post, at the front door of their houses, upon which they usually posted one of these proclamations or advertisement of sales, or other legal process delivered to them for service by publication. As such ministerial officers supported the judgment seat, or "bench" by executing the decrees of the court, it is probable that this line means that the post, used by the sheriff for this purpose, carried out and helped to execute the decrees of the court and in this manner "supported" the "bench." "Mal. Sir Toby, I must be round with you. My lady bade me tell you, that, though she harbours you as her kinsman, she's nothing allied to your disorders. If you can separate yourself and your misdemeanors, you are welcome to the house; if not, and it would please you to take leave of her, she is very willing to bid you farewell." The term "misdemeanor" is generally used in contradistinction to felony, and it includes all the offenses known to the criminal law, inferior to the more important crimes, known as felonies. All indictable offenses, not amounting to felonies, such as libels, assaults and batteries, nuisances, riots and such inferior offenses, are classed as mis 'Twelfth Night, Act I, Scene V. Twelfth Night, Act II, Scene III. 4 Sherwood's Criminal Law; 4 Bl. Com. 5. demeanors, punishable by fine or imprisonment in jail, as distinguished from the more important crimes such as murder, arson, forgery, and the like crimes, punishable by death or a term in the penitentiary.' Sec. 15. Grand-jury.— "Fab. I will prove it legitimate, sir, upon the oaths of judgment and reason. Sir To. And they have been grand-jurymen since before Noah was a sailor." 2 As grand-jurymen sit upon the different offenses known to the law and indict or exonerate citizens for charges brought against them, the proper discharge of such duties, requires both reason and sound judgment. Hence the comparison made, that reason and judgment have been grand-jurymen since before Noah was a sailor. Of course the institution does not date to any such prehistoric times, but there is reason to believe that this institution existed among the Saxons and it is certain that in the 12th century (by Statute 10' Hen. II) if the institution did not exist before, it was established in England, since which time it has existed uninterruptedly 5 1 Bishop's Cr. Law; 4 Bl. Com. 5. 2 Twelfth Night, Act III, Scene II. Crabb, Eng. Law, 35. Enacted in 1164. 5 4 Bl. Comm. 302; 2 Russell, Crimes. 616. "Fal. In 1' Henry IV, Falstaff thus addresses the Travelers: You are grand-jurors, are ye? We'll jure ye, i'faith." (Act II, Scene II.) Timon of Athens, makes the leopard spots jurors on the life of the leopard, when the lion is near. He says to Apemantus: "Tim. Wert thou a leopard, thou wert german to the lion, and the spots of thy kindred were jurors on thy life; all thy safety were remotion." (Act IV, Scene III.) |