Sec. 61. Penalty of the law. "Biron. (Reads) That no woman shall come within a mile of my court-And hath this been proclaimed? Long. Four days ago. Biron. Let's see the penalty. (Reads) On pain of los ing her tongue.-Who devis'd this? Long. Marry, that did I. Biron. Sweet lord, and why? Long. To fright them hence, with that dread penalty. Biron. A dangerous law against gentility.' ניי The idea is expressed in this colloquy that the law would not be effective until it was properly proclaimed as a law and this, of course, is true. The penalty is then adverted to and the avowed purpose is stated to be to deter the violation of the rule prescribed by the edict. This The following occurs, in Love's Labour's Lost (Act IV, Scene III): "Biron. As true, we are, as flesh and blood can be, The sea will ebb and flow, heaven show his face; We cannot cross the cause why we were born; In Merchant of Venice (Act I, Scene II) the effect of a decree, contrary to the inclinations of youth, is spoken of as follows: "Por. The brain may devise laws for the blood; but a hot temper leaps over a cold decree; such a hare, is madness, the youth, to skip o'er the meshes of good counsel, the cripple." Complaining of his past treatment, the King said to his son, in 2 Henry IV (Act IV, Scene IV): “K. Hen. . Give that which gave thee life unto the worms; pluck down my officers; break my decrees." In King Richard, in exiling Bolingbroke and Norfolk, the King said: "K. Rich. Let them lay by their helmets and their spears, 'Love's Labour's Lost, Act I, Scene I. (Act I, Scene III.) '1 Stephen, Comm. 25; 10 Pet. 18. A law not properly promul gated or proclaimed, would be no law. Bouvier's Law Dictionary. is the object of all penal provisions, to deter those upon whom the law is to operate from a violation of its provisions. But if the penalty is too harsh for the offense. prescribed, it is not generally, a good law, for it will be apt to be violated and the penalty dispensed with, hence Biron concludes that this harsh provision is "a dangerous law." Sec. 62. Attainder. "Biron. I am foresworn on mere necessity.— "Attainder" was that extinction of civil rights and capacities which took place, at common law, whenever a person who had committed treason or other felony, received the sentence for his crime.3 Attainder was either by confession, in court; by verdict, or by process of outlawry, in case of his flight. The effect of an attainder was that the felon's estate, real and personal, was forfeited; his blood was corrupted, so that nothing passed by inheritance, to, from or through him, and he was unable to sue to enforce any right in a court of justice. Of course the player spoke extravagantly in the use of this term as a penalty for the offense considered. The King, in Hamlet, mentions "How dangerous is it, that this man goes loose;" but he concludes, "Yet must not we put the strong law on him." (Act IV, Scene III.) 11Kent's Comm. 467; 1 Bl. Comm. 88; 1 Comyns Dig. 444. Love's Labour's Lost, Act I, Scene I. 1 Bishop, Criminal Law, 641; 1 Stephen, Comm. 408. Coke, Litt. 391. 6 Coke, 63a, 63b; Coke, Litt. 130a; 1 Bishop, Criminal Law, 641; 2 Gabbett, Criminal Law, 538. Attainder is not known in the United States. 4 Kent's Comm. 413, 420. Further on, in the same play, Rosalind said to Biron: "Ros. You must be purged too, your sins are rank; You are attaint with faults and perjury; A twelvemonth shall you spend, and never rest, But seek the weary beds of people sick." (Act V, Scene II.) Replying to the accusation of Bagot, the Duke of Aumerle said: "Aum. What answer shall I make to this base man? Shall I so much dishonor my fair stars, On equal terms to give him chastisement? With the attainder of his slanderous lips.” (King Richard II, Act IV, Scene I.) Referring to the father of Richard Plantagenet, Somerset asks him, in 1' Henry VI: "Som. . . . by his treason stand'st thou not attainted, Corrupted and exempt from ancient gentry?" And Plantagenet replies: "Plan. . . My father was attached, not attainted; condemn'd to die for treason, but no traitor." (Act II, Scene IV.) Somerset flouts the alleged treason of his father in the face of Richard Plantagenet, in 1' Henry VI, as follows: "Som. His trespass yet lives guilty in thy blood, And, still thou be restor'd thou art a yeoman." (Act II, Scene IV.) Mortimer, referring to Richard Plantagenet's attainder, in 1' Henry VI, said: "And even since then hath Richard been obscur'd, Deprived of honour and inheritance." (Act II, Scene V.) In remitting the attainder of Richard Plantagenet, Henry VI said: "K. Hen. . . Therefore, my loving lords, our pleasure is, That Richard be restored to his blood." (Act III, Scene I.) King Henry tells Suffolk, in 1' Henry VI: “K. Hen... My tender youth was never yet attaint, With any passion of inflaming love." (Act V, Scene V.) In 2' Henry VI, Hume is made to say of the Duchess of Gloster: "Hume. Hume's knavery will be the duchess' wreck; And her attainture will be Hume's fall." (Act I, Scene II.) made to say to the duke of "Q. Mar. Gloster, see here the The vicious Queen Margaret is Gloster, on the arrest of his wife: tainture of thy nest; And look, thyself be faultless, thou wert best." (2' Henry VI, Act II, Scene I.) The duke of Gloster said to his unfortunate wife, in 2' Henry VI: "Glo... Ah, Nell. forbear: thou aimest all awry: I must offend, before I be attainted." (Act II, Scene IV.) Sec. 63. Taken with the manner. "Cost. The matter is to me sir, as concerning Jaquenatta. The manner of it is, I was taken with the manner." These lines refer to an arrest upon "hue and cry," when the thief is found with the stolen property on his person. Of this term Halliwell quotes from Termes de la Ley: "Maynour is when a thief has stolen and is followed with Hue and Cry, and taken, having that upon him, which he stole, and it is called Maynour. And so we used to say, when we find one doing of an unlawful act, that we took him with the Maynour, or Manner." The Scrivener, in presenting the indictment, after Hasting's death, in King Richard III, is made to say: "Scriv. And yet within these five hours, Hastings liv'd, Untainted, unexamined, free, at liberty." (Act III, Scene VI.) Dissembling, on seeing Lord Hasting's head, Richard II said, in King Richard III': "Glo. So smooth he daub'd his vice, with show of virtue, That, his apparent open guilt omitted-I mean his conversation with Shore's wife-He lived from all attainder of suspect." (Act III, Scene V.) Speaking of the Cardinal's act in the trial of Buckingham, for treason, a gentleman is made to say: "Gent. 'Tis likely, by all conjectures; First, Kildare's attainder, then deputy of Ireland." (Act II, Scene I.) Alexander tells Cressida, in Troilus and Cressida, speaking of Troilus: "Alex. . . there is no man hath a virtue that he hath not a glimpse of; nor any man an attaint, but he carries some stain of it." (Act I, Scene II.) Addressing his friend, in the LXXXVIII' Sonnet, the Poet said: "Upon thy part I can set down a story Of faults conceal'd, wherein I am attainted." (6, 7.) 'Love's Labour's Lost, Act I, Scene I. 'See Tomlin's Law Dictionary; Bouvier's Law Dictionary. For an interesting case, where a thief was taken with the Manour, see Year Book 30 and 31 Edw. 1 (Hor. Ed. 1863), p. 512, where a woman had committed burglary and larceny and was taken with the "mainour" and was brought before the justices, with the "mainour." Sec. 64. "In manner and form.”— "Cost. In manner and form following, sir; all those three: I was seen with her in the manor house, sitting with her upon the form and taken following her into the park; which, put together is, in manner and form following." These terms are used not only in indictments, in setting out the charging part of the offense committed, at common law, but also in other formal legal documents. The play upon the formal words, in this instance, is by the use of another legal term, "manor house." In the English law, “Manor" signified a tract of land originally granted by the King to a person of rank, part of which (terrae tenementales), was given by the "lord of the manor," to his followers or vassals, and the rest was retained by him under the name of his demesnes, or terrae In Henry IV, (Act II, Scene IV) Prince Hal thus refers to Falstaff's having been taken with the manner: "P. Hen. O villain, thou stolest a cup of sack eighteen years ago and wert taken with the manner, and ever since thou hast blushed extempore." Manner, is no doubt from the French word manier, and when used as it is in this verse means about the same that the words imply to arrest a thief and find the stolen goods on his person. "Taken with the manner," means that he was arrested with the goods upon his person and as "recent possession of stolen property" raises a strong implication, in law, of the guilt of the person in whose possession the stolen property is found, so to be "taken with the manner" would be presumptive evidence of the guilt of Falstaff in the instance referred to. Commenting upon the right of arrest of those criminals who were taken in the act, Lord Coke said: "being taken with the manner, that is, with the thing stolen in his hand, which Bracton and Britton call factum manifestum (Bracton lib. 111, fol. 12; Britton, fol. 22), and so felons, openly known and notorious, they were not bailable." (2 Inst. 189.) And see II Reeve's History Eng. Law, p. 418. 'Love's Labour's Lost, Act I. Scene I. 'Coke, Litt. 58, 108; 2 Rolle, Abr. 121. |