Sec. 29. Common law marriage contract.- This verse treats the party to a "pre-contract" of marriage, after cohabitation as the lawful wife of the other contracting party and this was strictly in accordance with the common law. At common law no form of contract, nor was any ceremony essential to constitute the relation, but mutual assent to the relation of husband and wife followed with cohabitation, in reliance thereon, was sufficient to make a man and woman husband and wife. 2 But it may be doubted if a cohabitation, procured by false personation of another, would be such consummation of the contract as to consummate the relation, in the absence of a decree by such authority as backed up this intrigue or the use of such arbitrary force as made the recognition of the contract afterwards certain. The use of the term, "pre-contract," as remarked by Mr. Davis," "shows" that the distinction between marriage per verba de presenti, and that per verba de futuro "was plainly drawn in Shakespeare's mind." The following occurs in 1' Henry IV, between Falstaff and Prince Henry: "Fal. Shall I? O rare: By the lord I'll be a brave judge. P. Hen. Thou judgest false already; I mean, thou shalt have the hanging of thieves and so become a rare hanginan." (Act I, Scene II.) Speaking of the Justice's duties, among those of man, whom heaven hath divided into various functions, the Archbishop of Canterbury, in Henry V, said: "Cant. The sad ey'd justice, with his surly hum, delivering o'er to executors pale, the lazy yawning drone." (Act I, Scene II.) 1 Measure for Measure, Act IV, Scene I. 22 Roper, Husb. & Wife, 445, 475. 10 Clark & F. Hou. L. 534. 'Davis, Law in Shakespeare, 70. Sec. 30. Plea for justice. "Isab. Justice, O, royal Duke; Vail your regard O worthy prince, dishonor not your eye Mr. Webster once said: est of man on earth." "Justice, sir, is the great interTo insure justice, is one of the main objects of all social compacts and to come nearer the standards by which it may be realized, is the pride of all civilizations. Institutions for the administration of justice have now reached the greatest perfection that the world has ever seen, and the broad, beneficent idea of "equal and exact justice, to all men, of whatever state or persuasion, religious or political," proclaimed by one of the greatest of the architects of our own free government, as a proper gauge for the rights of man, has become the guiding star by all liberty-loving people of the world. Justice is defined as the "Constant and perpetual will to render unto every man his due." Commutative justice is the virtue of rendering unto every man that which belongs to him, as nearly as may be; to make an equality between the parties, to the end that no one may be the gainer by another's loss. Distributive Justice consists in distributing rewards and punishments to each one, according to his merits, so that neither equal persons have unequal things, nor unequal persons things that are equal. Justice is also said to be exterior and interior, the former being the object of jurisprudence and the latter the object of morality alone. But in the broadest sense, it is a simple rule of right, with the object of giving every one 'Measure for Measure, Act V, Scene I. 'See, Judiciary, &c., Proc. 24th Meeting Mo. Bar Ass'n. 'Justinian, Inst., b. 1, tit. 1; Coke, 2 Inst. 56. Toullier. Droit, Civ. Fr. tit. prel. n. 5. S Ante, idem. 'Droit, Civ. Fr. tit. prel. n. 6, 7. his own. Isabella, here, sought her own and in so seeking sought but simple justice. Her plea therefor is certainly a touching appeal, calculated to move the hardest heart in favor of the virtue craved. Sec. 31. The equality of justice. "Duke. The very mercy of the law cries out, Haste still pays haste, and leisure answers leisure; Which, though thou would'st deny, denies thee van- As distributive justice contemplates the distribution of rewards and punishments to each person, according to his In Merchant of Venice (Act II, Scene I) the Jew is ridiculed, for seeking justice, as follows: "Salan. I never heard a passion so confused, So strange, outrageous and so variable, As the dog Jew did utter in the streets: A sealed bag, two sealed bags of ducats, Of double ducats, stol'n from me by my daughter: And jewels; two stones, two rich and precious stones, Antipholus prays for justice from the Duke, in Comedy of Errors, as follows: "Ant. Justice, most gracious Duke, oh, grant me justice: Even for the service that long since I did thee, When I bestrid thee in the wars, and took (Act V, Scene I.) Lady Capulet begs for justice, in asking for Romeo's death. in Romeo and Juliet, for the killing of Tybalt, as follows: "La. Cap. I beg for justice, which thou, prince, must give: Romeo slew Tybalt, Romeo must not live." (Act III, Scene. 1 Measure for Measure, Act V, Scene I. own deserts, so that persons similarly situated shall have substantially the same rewards or punishment, for the violated right, or the wrong inflicted,' it is apparent that this was understood by the Poet, and in denying Angelo any "vantage" from his position, for the offense he had committed, the Duke but meted out equal and exact justice to him, accordingly as he had dealt with Claudio. Sec. 32. The law a gazing-stock, when not enforced."Duke. My business in this state made me a looker-on, here in Vienna, Where I have seen corruption boil and bubble, But faults so countenanced, that the strong statutes As much in mock as mark.? The thought here expressed is that the law becomes a mere gazing-stock, when not enforced. "Countenanced," is clearly used in the sense of approved, favored or encouraged; looked upon with favor or condoned. In other words, violations of the law had been so condoned that the law, itself, had become a mere mockery. It is a familiar form of legal or judicial expression, as to laws which have become a dead letter, by lack of enforcement.3 And again, in Love's Labour's Lost, the King remarked: "And justice always whirls in equal measure." (Act IV, Scene III.) In Winter's Tale, before the trial of the queen, Hermione, Leontes said: "Let us be cleared of being tyrannous, since we so openly proceed in justice; which shall have due course, even to the guilt, or the purgation." (Act III, Scene II.) Warwick, in 3' Henry VI, is made to say: "War. Measure for measure, must be answered." 'Toullier, Droit, Civ. Fr. tit. prel. n. 5. Measure for Measure, Act V, Scene I. (Act II, Scene VI.) In a recent decision, by the Supreme Court of the State of Missouri, the Court said: "It ought not be expected that we would so hold as to encourage such a notion and thereby make a gazing-stock of the law." 200 Mo., p. 400. Sec. 33. Confession of guilt. "Ang. O, my dread lord, I should be guiltier than my own guiltiness, When I perceive your grace, like power divine, As a voluntary confession of his guilt, this would be evidence against Angelo, by which his conviction would follow, in a trial. But as the confession is but an extrajudicial confession, as distinguished from a judicial confession, the Poet does not present it as more than evidence of his guilt, which might be offered, on a trial, but the plea is for an end of the session, at the trial, by a judicial confession, which would then necessarily put an end to the proceeding-when made without fear or hope of reward' through the waiver of a trial; a plea of guilt and a subsequent immediate sentence. And that other unnatural edicts would prove a similar gazingstock, because of their non-enforcement, the Poet makes another player say, in Love's Labour's Lost: "Biron. I'll lay my head to any good man's hat, These oaths and laws will prove an idle scorn." cherish weeds, but gentle air, And what makes robbers bold, but too much lenity?" (Act II, Scene VI.) 1 Measure for Measure, Act V, Scene I. 21 Mood. Cr. Cas. 27, 452. 1 Lew. Cr. Cas. 46; 4 Carr. & P. 567; 2 Russell, Crimes (3d ed.), 876-878. If a confession is exacted by inducement, threats, promise or hope of reward, in general, it is not admissible against a prisoner. 1 Mood. Cr. Cas. 465; 4 Carr. & P. 570. |