Shakespeare a Lawyer - Four
by William Lowes Rushton

Since brass, nor stone, nor earth, nor boundless sea,
But sad mortality o'er sways their power,
How with this rage shall beauty hold a plea,
Whose action is no stronger than a flower.
Sonnet LXV.

[34] The liberty to hold pleas (tenere placita) is to have a court of one's own, and to hold it before a mayor, bailiffc., in such a place according to the course of the common law.—(C. Finch, 166, 1 Inst., 114 b., 2 Inst., 71, 4 Inst., 87, 224, 2 Danv. Abr., 161.)

BASSANIO. In law, what plea so tainted and corrupt
But, being seasoned with a gracious voice,
Obscures the show of evil.

Plea denotes what either party in a court alleges in a cause depending there; and plea or pleading, in a more extensive sense, comprehends all the points or matters that follow the declaration, both on the defendant's and plaintiff's side, till issue be joined; though a plea in its ordinary acceptance signifies the defendant's answer to the plaintiff's declaration.

TIMON. Crack the lawyer's voice
That he may never more false title plead,
Nor sound his quillets shrilly.
Timon of Athens, Act 4, Scene 2.

HOLOFERNES. Most barbarous intimation! Yet a kind of insinuation, as it were, in via, in a way of explication; facere, as it were replication.
Love's Labour's Lost, Act 4, Scene 2.

HAMLET. What replication should be made by the son of a king?

Replication (replication) is an exception of the second degree made by the plaintiff upon the answer of the defendant.

DON JOHN. Grow this to what adverse issue it can, I will put it in practice. Be cunning in the working this, and thy fee is a thousands ducats.
Much Ado About Nothing, Act 2, Scene 2.

When the parties by plea, replication, rejoinder, &c., are come to something affirmed by one, and denied by the [35] other, they are at issue. Issue (from issuer, emanare, to flow, exitus) is a single certain and material point issuing out of the allegations and pleas of the plaintiff and defendant, consisting regularly of an affirmative and negative, to be tried by twelve men.—1 Inst., 126 a 11, Rep. 10, Finch, Book 4, ch. 35.

Mine eye and heart are at a mortal war,
How to divide the conquest of the sight;
Mine eye my heart thy picture's sight would bar,
My heart mine eye the freedom of that right.
My heart doth plead that thou in him dost lie,
(A closet never pierc'd with crystal eyes),
but the defendant doth that plea deny,
And says in him thy fair appearance lies.
To 'cide this title is impaneled
A quest of thoughts, all tenants to the heart;
And by their verdict is determined.
The clear eye's moiety, and the dear heart's part:
As thus; mine eye's due is thine outward part,
And my heart's right, thine inward love of heart.
Sonnet XLVI.

'To 'cide,' to decide. 'A quest of thoughts,' an inquest or jury. The process to bring in the jury in the Common Pleas is by venire facias and Habeas Corpora Juratorum. A Distringas juratorum goes out of the King's Bench to the same intent. Upon this write of venire the sheriff shall return a jury in a panel, a little piece of parchment, annexed to the writ; on which account the jury is said to be impanelled.—Wood's Inst., 2nd ed., p. 590.

HAMLET. For who would bear the whips and scorns of time,
The oppressor's wrong, the proud man's contumely,
The pangs of despised love, the law's delay,
The insolence of office, and the spurns
[36] That patient merit from the unworthy takes,
When he himself might his quietus make
With a bare bodkin.
Act 3, Scene 1.

Quietus, is the same as to say freed or acquitted, and is used by the Clerk of the Pipe, and auditors in the Exchequer, in their discharges given to the accountants, which usually conclude with these words, Abinde recessit quietus, generally termed a Quietus est. There is a Roll in the Exchequer called the Pipe, otherwise the Great Roll. The Clerk of the Pipe is one in whose custody are conveyed, out of the offices of the King's and Treasurer's Remembrances, &c. (as water through a pipe into a cistern) all accounts and debts due to the king; so as whatsoever is in charge in this Roll, or Pipe, is said in the law to be duly charged. (See Cowel's Interpreter v. Clerk of the Pipe.) The Controller of the Pipe is the Chancellor of the Exchequer.—Wood's Inst., 2nd edition, p. 470.

DAVY. Those precepts cannot be served.
Henry IV, Act 5, Scene 1.

Precepts here signify commandments, in writing, issued out of a justice of the peace, &c., for bringing a person or records before him.

FALSTAFF. Was it for me to kill the heir apparent.
Merry Wives of Windsor, Act 2, Scene 2.

Heirs apparent are such whose right of inheritance is indefeasible, provided they outlive the ancestor; as the eldest son, who must by the course of the common law be heir apparent to the father whenever he happens to die; and Falstaff refers to Prince Henry, who was the heir apparent to the king, his father.

FALSTAFF. Go, hang thyself in thine own heir apparent garters.
First Part Henry IV, Act 2, Scene 2.

[37] CLEON. One sorrow never comes, but brings an heir,
That may succeed as his inheritor.
Pericles, Prince of Tyre, Act 1, Scene 4.

KING. When sorrows come they come not single spies,
But in battalions!
Hamlet, Act 4, Scene 5.

HASTINGS. To bar my master's heirs in true descent.
Richard III, Act 3, Scene 2.

So now I have confess'd that he is thine,
And I myself am mortgag'd to thy will;
Myself I'll forfeit, so that other mine
Thou wilt restore, to be my comfort still;
But thou wilt not, nor he will not be free,
For thou art covetous, and he is kind;
He learn'd but, surety-like, to write for me,
Under that bond that him as fast doth bind.
The statute of thy beauty thou wilt take,
Thou usurer, that putt'st forth all to use,
And sue a friend, came debtor for my sake;
So him I lose through my unkind abuse.
Him have I lost; thou hast both him and me;
He pays the whole, and yet am I not free.
Sonnet CXXXIV.

"The statute of thy beauty," "The bond or obligation of thy beauty." Statutes merchant and statutes staple have been explained.

LADY MACBETH. What need we fear who knows it, when none can call our power to account.
Act 5, Scene 1.

LEAR. No, they cannot touch me for coining;
I am king himself.
King Lear, Act 4, Scene 6.

GONERIL. Say, if I do; the laws are mine, not thine;
Who shall arraign me for 't.
King Lear, Act 5, Scene 3.

[38] Lady Macbeth, Lear, and Goneril seem to refer to the ancient and fundamental principal of the English Constitution, that the king can do no wrong. Rex non potest peccare.—2 Roll. R. 304; Jenk. Cent. 9, 308.

EDEUS. I beg the ancient privilege of Athens.
As she is mine, I may dispose of her,
Which shall be either to this gentleman
Or to her death; according to our law,
Immediately provided in that case.
Midsummer Night's Dream, Act 1, Scene 1.

CADE. Contrary to the king, his crown, and dignity.
Second Part, Henry VI, Act 4, Scene 7.

"Contrary to the form of the statute in that case made and provided" is the allegation which concludes indictments for offences which are contrary to the statute; if the offence is indictable at common law, the concluding words are, "against the peace of our said lady the Queen, her crown, and dignity."

CADE. All the realm shall be in common.
Second Part, Henry VI, Act 4, Scene 2.

CADE. Henceforward all things shall be in common.
Second Part, Henry VI, Act 4, Scene 7.

KING. Laertes, I must common with your grief,
Or you deny me right.
Hamlet, Act 4, Scene 5.

MARIA. My lips are no common though several they be.
Love's Labour's Lost, Act 1, Scene 1.

A common is unapportioned land; a several, land or an estate in severalty, is where an estate is held by one person in his own exclusive right, without any other person being interested therein. But several, or severell, in Shakespeare's native county, Warwick, signified, it is said, the common field, common to a few proprietors, but [39] not common at all; so that the term used or taken in this sense would prevent the "though" appearing contradictory. Moreover, in Sonnet CXXXVII, Shakespeare seems to have been well aware of the distinction existing between these terms, for he there uses the word several in its usual legal acceptation:

Why should my hear think that a several plot,
Which my heart knows the world's wide common place.
COSTARD. The matter is to me, sir, as concerning Jaquetta.
The manner of it is, I was taken with the manner.
BIRON. In what manner.
COSTARD. In manner and form following.
Love's Labour's Lost, Act 1, Scene 1.

PRINCE HENRY. O villain, thou stolest a cup of sack eighteen years ago, and wert taken with the manner, and ever since thou hast blushed extempore.
First Part, Henry IV, Act 2, Scene 4.

CLOWN. If you had not taken yourself with the manner.
Winter's Tale, Act 4, Scene 3.

Mainour, old French manoevre, meinor, Latin a manu, from the hand, or in the work. The old law phrase, to be taken as a thief with the mainour, signifies to be taken in the very act of killing venison, or stealing wood, or in preparing so to do; or it denotes the being taken with the thing stolen in his hands or possession.

AARON. He, that had wit, would think that I had none,
To bury so much gold under a tree,
And never after to inherit it.

In this passage Shakespeare probably refers to treasure trove (tresor trouve) treasure found, which signifies in our common law, as it does in the civil law, id est veterm depositionem pecuniae, cujus non extat memoria, ut jam dominium non habeat. This treasure found, thought the [40] law gives it to the finder according to the law of nature, yet the law of England fives it to the crown by prerogative, if the owner be unknown.

THALIARD. If a king bid a man be a villain, he is bound by the indenture of his oath to be one.
Pericles of Tyre, Act 1, Scene 2.

MARINA. Serve by indenture to the common hangman.
Pericles of Tyre, Act 4, Scene 6.

LEAR. This is nothing, fool.
FOOL. Then 'tis like the breath of an unfed lawyer.
King Lear, Act 1, Scene 4.

IAGO. And, in conclusion, nonsuits
My mediators.

A nonsuit (from the Norman-French ne suit pas) is when the plaintiff upon demand should appear in court, and he makes default by not prosecuting his suit with effect, or else by refusing to stand a verdict upon trial.—Wood's Inst., 2nd edition, p. 583.

But be contented, when that fell arrest
Without all bail shall carry me away.
Sonnet.

HAMLET. As this fell sergeant death is strict in his arrest.
Act 5, Scene 2.

Serjeant, or sergeant, is applied to divers offices and callings; but Hamlet refers to serjeant-at-arms or mace, whose office is to attend the king's person, to arrest traitors or persons of conditions, and to attend the lord and high steward, when sitting in judgment.

DROMIO OF EPHESUS. That you beat me at the mart, I have your hand to show.
If the skin were parchment, and the blows you gave were ink,
Your own handwriting would tell you what I think.

[41] HAMLET. Is not parchment made of sheepskins?
HORATIO. Ay, my lord, and of calves' skins, too.
HAMLET. They are sheep, and calves which seek out assurance in that.
Act 5, Scene 1.

They are (the players) the abstract and brief chronicles of the time.
Hamlet, Act 2, Scene 2.

He hath an abstract for the remembrance of such places.
Merry Wives of Windsor, Act 4, Scene 2.

PAULINA. The child was prisoner to the womb; and is,
By law and process of great nature, thence
Freed and enfranchis'd.
Winter's Tale, Act 2, Scene 2.

Pray in aid for kindness.
Antony and Cleopatra.

Aid prier, to pray or crave assistance; and is a word used in pleading, for a petition to call in help from another person that has interest in land, or other thing contested. Aid of the king is where the king's tenant prays aid of the king on account of rent demanded of others. The aid of the king may be prayed by a city or borough that holds a fee-farm of the king where anything is demanded of them that belongs thereto.