Executio est executio juris secundum judicium (3 Institute, 212). It is
a maxim of the law of England that the execution must be according to
the judgment, Et quæ in curia nostra rite acta sunt, debit’ executioni
demandari debent; and for express authority, Non licet felonem pro
felonia decollare. In the case of high treason, beheading is part of
the judgment, and therefore the king may pardon all the rest saving
beheading, as is usually done in case of nobility. But if a man being
attainted of felony be beheaded, it is no execution of the judgment,
because the judgment is, that he be hanged till he be dead: in this
case the judgment doth belong to the judge, and he cannot alter it; the
execution belongs to the sheriff, &c., and he cannot alter it. And if the
execution might be altered in this case from hanging to beheading, by the
same reason it might be altered to burning, stoning to death, &c. (3
Institute, 211). It is worthy of notice that Shakespeare seems to have
been well aware of the distinct offices of judge and executioner, for he
makes Guiderius, in speaking of Cloten, say—
Why should we be tender,
To let an arrogant piece of flesh threat us;
Play judge and executioner, all himself?
_Cymbeline_, Act iv. Scene 2.
If an officer beheads one who is adjudged to be hanged, or vice versâ, it
is murder (I. Hale P. C. 494; I. Hawk. P. C. c. xxviii. ss. 11, 12, 17,
18), for he is merely ministerial, and therefore only justified when he
acts under the authority and compulsion of the law; but if the sheriff
substitutes one kind of death for another, he then acts by his own
authority, which does not extend to the commission of homicide (4 Bla.
Com. 179). If the sheriff, or other proper officer, alters the execution
or any other doth execute the offender, or if he is slain without
authority of law, it is felony, and the law implies malice (Wood’s Inst.,
2nd ed., p. 662). So Clarence says to the murderers hired by Gloster—
_Clar._ Are you drawn forth among a world of men
To slay the innocent? What is my offence?
Where is the evidence that doth accuse me?
What lawful quest have given their verdict up
Unto the frowning judge? or who pronounc’d
The bitter sentence of poor Clarence’ death?
Before I be convict by course of law,
To threaten me with death is most unlawful.
_Richard III._, Act i. Scene 4.
To conclude this point: Judicium est legibus, non exemplis (4 Rep. 33),
and Judicium est jurisdictum and Executio est executio juris secundum
judicium (3 Inst. 211). Buckingham may also refer to Gloster’s cruelty in
making the law an instrument of oppression or extortion and the liability
thereby incurred, for Executio juris non habet injuriam (2 Inst. 481; 1
Inst. 289a). The law in its executive capacity will not work a wrong.
If an individual, under colour of law, does an illegal act, or if he
abuses the process of the Court to make it an instrument of oppression
or extortion, this is a fraud upon the law, by the commission of which
liability will be incurred.
_Claud._ Fellow, why dost thou show me thus to the world?
Bear me to prison, where I am committed.
_Prov._ I do it not _in evil disposition_,
But from Lord Angelo by special charge.
_Measure for Measure_, Act i. Scene 3.
Qui jussu judicis aliquod fecerit non videtur dolo malo fecisse quia
parere necesse est (10 Rep. 70, 76).
Where a man does anything by command of a judge, the law will not
consider that he acted from any wrongful motive, because it was necessary
for him to comply with the orders of the judge. In 26 Ed. III. vii. 70,
it is taken for a maxim, that the thing which an officer doth by warrant
or command of a Court, cannot be said to be against the peace, and (Doct.
and Stud. 150) the king’s officers are bound to execute the king’s writs
at their peril (10 Rep. 70). When a Court has jurisdiction of a cause,
and proceeds inverso ordine or erroneously, no action lies against the
party who sues, or the officer or minister of the Court who executes the
precept or process of the Court. But when the Court has no jurisdiction
of the cause, then the whole proceeding is coram non judice, and actions
will lie against them without any regard of the precept or process, for
it is not necessary to obey him who is not a judge of the cause, no more
than it is to obey a mere stranger, for the rule is, Judicium a non suo
judice datum nullius est momenti (10 Rep. 76).
_Lady Macbeth._ What need we fear who knows it, when none can
call our power to account?
_Macbeth_, Act v. Scene 1.
_Lear._ No, they cannot touch me for coining; I am the king
himself.
_Goneril._ Say if I do; the laws are mine, not thine;
Who shall arraign me for it?
_Lear_, Act v. Scene 2.
Lady Macbeth, Lear, and Goneril seem to refer to the ancient and
fundamental principle of the English constitution, that the king can do
no wrong. Rex non potest peccare (2 Roll. R. 304; Jenk. Cent. 9, 308).
_Duke._ He dies for Claudio’s death.
_Isab._ [_kneeling._] Most bounteous sir,
Look, if it please you, on this man condemn’d,
As if my brother liv’d. I partly think,
A due sincerity govern’d his deeds,
Till he did look on me: since it is so,
Let him not die. My brother had but justice,
In that he did the thing for which he died:
For Angelo,
His act did not o’ertake his bad intent;
And must be buried but as an intent
That perish’d by the way: thoughts are no subjects;
Intents but merely thoughts.
_Measure for Measure_, Act v. Scene 1.
An evil intention is not punishable equally with the fact; Crimen
non contrahitur nisi nocendi voluntas intercedit (Bracton, lib. cap.
4; Wood’s Inst., 2nd ed., p. 340), except in treason, when the maxim
Voluntas reputatur pro facto (3 Inst. 5, 69), the will is taken for the
deed, is said to apply to its full extent. It is a rule laid down by Lord
Mansfield, said to comprise all the principles of previous decisions in
similar cases (per Lawrence, J., Rex _v._ Higgins, 2 East, 21), that so
long as an act rests in bare intention, it is not punishable by the law
of England—so Ulpian says: ‘Cogitationis pœnam nemo patitur’ (D. 48, 19,
18), and Montesquieu: ‘Les lois ne se chargent de punir que les actions
exterieurs’—but when an act is done, the law judges not only of the act
itself, but of the intent with which it is done.
_Angelo._ What’s open made to justice,
That justice seizes.
_Measure for Measure_, Act ii. Scene 1.
And if the act be accompanied with an unlawful and malicious intent,
though in itself the act would otherwise be innocent, yet, the intent
being criminal, the act likewise becomes criminal and punishable (Rex
_v._ Scofield, 2 East, D. C. 1028). Non officit conatus, nisi sequitur
effectus (6 Rep. 42; Wood’s Inst., 2nd ed., p. 340), for it is a
principle of natural justice and of our law that the intent and the act
must both concur to constitute the crime (Lord Kenyon, 7, T. R. 514). But
where one has the use of his reason, and is at liberty, his endeavour to
commit a felony, as to rob, &c., is punishable, though not to that degree
as if the felony and robbery, &c., had actually been committed. For in
such cases Voluntas non reputabitur pro facto, the will shall not be
taken for the deed (3 Inst. 69; 11 Rep. 98).
_Ham._ Give me your pardon, sir: I’ve done you wrong;
But pardon’t, as you are a gentleman.
This presence knows, and you must needs have heard,
How I am punish’d with a sore distraction.
What I have done,
That might your nature, honour, and exception,
Roughly awake, I here proclaim was madness.
Was’t Hamlet wrong’d Laertes? Never Hamlet:
If Hamlet from himself be ta’en away,
And, when he’s not himself, does wrong Laertes,
Then Hamlet does it not; Hamlet denies it.
_Hamlet_, Act v. Scene 2.
In all crimes there must be an evil disposition; a mere mistake is not
punishable; and those that are to be esteemed guilty of any offences must
have the use of their reason, and be at their own disposal or liberty
(Wood’s Inst., 2nd ed., p. 340, 339), for, Actus non facit reum nisi mens
sit rea (3 Inst. 107), the act does not make a man guilty unless his
intention were guilty. Moreover Hamlet says—
Who does it then? His madness: if’t be so,
Hamlet is of the faction that is wrong’d;
His madness is poor Hamlet’s enemy.
And in criminal cases idiots and lunatics are not chargeable for their
own acts, if committed at a time when they are non compos mentis, for it
is a maxim of the law of England that Furiosus solo furore puniatur, a
madman is only punished by his madness (Co. Litt. 247b; Bal. Com., 24,
25). So Hamlet says he is of the faction that is wronged, and he seems
to refer, not only to the maxim that the act does not make a man guilty
unless his intentions were guilty, but afterwards, in the same passage,
to the kind of homicide to which it is applicable—
Sir, in this audience,
Let my disclaiming from a purpos’d evil
Free me so far in your most generous thoughts,
That I have shot mine arrow o’er the house,
And hurt my brother.
viz., homicide per infortunium, or by misadventure,[2] which is, where a
man doing a lawful act, without any intention of hurt, by accident kills
another; as, for instance, where a man is working with a hatchet, and
the head flies off and kills a bystander. So Bracton says, ‘De amputatore
arborum, qui cum ramum projiceret, inscius occidit transeuntem, aut
cum quis pilam percusserit, &c., ex cujus ictu occisus est, tales de
homicidio non tenentur’ (lib. 3, fo. 136b). If a man shooting at butts
or a target, by accident kills a bystander, it is misadventure (I. Hale,
472, 475, 380), but this must be understood of cases where a proper
precaution to prevent accidents has been taken, for if the target be
placed near a highway or path, where persons are in the habit of passing,
the killing would probably be deemed manslaughter.
_Camillo._ Have you thought on
A place whereto you’ll go?
_Florizel._ Not any yet:
But as th’ _unthought-on accident is guilty_
_To what we wildly do_, so we profess
Ourselves to be the slaves of chance, and flies
Of every wind that blows.
_Winter’s Tale_, Act iv. Scene 4.
If the act be unlawful it is murder. As if A, meaning to steal a deer
in the park of B, shooteth at the deer, and by a glance of the arrow,
killeth a boy that is hidden in a bush, this is murder; for that the act
was unlawful, although A had not intent to hurt the boy, nor knew not
of him. Thus if B, the owner of the park, had shot at his own deer, and
without any ill intent had killed the boy by the glance of his arrow,
this had been homicide by misadventure, and no felony. So if one shoot at
any wild fowl upon a tree, and the arrow killeth any reasonable creature
afar off, without any evil intent in him, this is per infortunium,
for it was not unlawful to shoot at the wild fowl; but if he had shot
at a cock or a hen, or any tame fowl of another man’s, and the arrow
by mischance had killed a man, this had been murder, for the act was
unlawful. If a man, knowing that many people came in the street from a
sermon, threw a stone over a wall, intending only to fear them or to give
them a light hurt, and thereupon one is killed, this is murder; for he
had an ill intent, though that intent extended not to death, and though
he knew not the party slain (Marlbr. c. 25; 3 Inst. 56, 57). All crimes
have their conception in a corrupt intent, have their consummation and
issuing in some particular fact, which, though it be not the fact at
which the intention of the malefactor levelled, yet the law giveth him no
advantage of the error, if another particular ensue of as high a nature.
As if A, having malice to B, strikes at him and misseth him and kills
C, this is murder in A (9 Rep. 81; H. P. C. 50). So Bracton says, ‘Si
quis unum percusserit, cum aliam percutere vellet, in felonia tenetur’
(lib. 3, fol. 155). And if one lays poison to kill B, and C takes it and
dies in consequence, this is murder in him that laid the poison: for,
In criminalibus sufficit generalis malitia intentionis cum facto paris
gradus (Bacon, Max., 65). The malice intended to one makes the accidental
death of another to be murder (Wood’s Inst., 2nd ed., 353).
_Hub._ Stand back, Lord Salisbury, stand back I say:
By heaven, I think my sword’s as sharp as yours:
I would not have you, lord, forget yourself,
Nor tempt the danger of my true defence;
Lest I, by marking of your rage, forget
Your worth, your greatness, and nobility.
_Big._ Out, dunghill! dar’st thou brave a nobleman?
_Hub._ Not for my life: but yet I dare defend
My innocent life against an emperor.
_King John_, Act iv. Scene 3.
Excusable homicide is se defendendo, or where one has no other possible
means of preserving his own life than by killing the person who
reduces him to such a necessity, for, Vim vi repellere licet, modo
fiat moderamine inculpatæ tutelæ, non ad sumendam vindictam, sed ad
propulsandam injuriam (I. Inst. 162a; Wood’s Inst., 2nd ed., 359).
_Alcibiades._ Who cannot condemn rashness in cold blood?
To kill, I grant, is sin’s extremest gust;
But, in defence, by mercy ’tis most just.
_Timon of Athens_, Act iii. Scene 5.
It is said that it must be a killing upon an inevitable necessity; but
necessity implies that the act was inevitable, or that it could not have
been otherwise. The party assaulted is not to be excused, unless he gives
back to the wall, hedge, river, &c., beyond which he cannot go, before
he kills the other. But if A assault B so fiercely and violently, and in
such a place, and in such a manner as, if B should give back, he should
be in danger of his life, he may in this case defend himself, and if in
that defence he killeth A, it is se defendendo, because it is not done
felleo animo: for the rule is, when he doth it in his own defence, upon
any inevitable cause, Quod quis ob tutelam corporis sui fecerit, jure id
fecisse videtur (H. P. C. 41, 42; 3 Inst. 55, 56). What any one may have
done for the protection of his person, is considered to have been done by
law.
_Enter two_ Clowns, _with Spades, &c._
_1 Clo._ Is she to be buried in Christian burial, that wilfully
seeks her own salvation?
_2 Clo._ I tell thee, she is; and therefore make her grave
straight: the crowner hath sat on her, and finds it Christian
burial.
_1 Clo._ How can that be, unless she drowned herself in her own
defence?
_2 Clo._ Why, ’tis found so.
_1 Clo._ It must be se offendendo; it cannot be else. For here
lies the point: if I drown myself wittingly, it argues an act:
and an act has three branches; it is, to act, to do, and to
perform: argal, she drowned herself wittingly.
_2 Clo._ Nay, but hear you, goodman delver.
_1 Clo._ Give me leave. Here lies the water; good: here stands
the man; good: if the man go to this water, and drown himself,
it is, will he, nill he, he goes; mark you that? but if the
water come to him, and drown him, he drowns not himself; argal,
he that is not guilty of his own death, shortens not his own
life.
_2 Clo._ But is this law?
_1 Clo._ Ay, marry, is’t; crowner’s-quest law.
_Hamlet_, Act v. Scene 1.
It seems that Shakespeare has made the first clown confound a felo de se,
or one who is guilty of self murder, with a person who commits homicide
se defendendo, in his own defence, or, as he miscalls it, se offendendo;
for, in answer to the second clown’s assurance that ‘the crowner hath
sate on her and finds it Christian burial,’ he says, ‘How can that be,
unless she drowned herself in _her own defence_?’ This is also apparent
from his reasoning, which, although it may appear absurd, is good law;
for he evidently means, that if the water comes to a man and drowns
him, not wittingly, but against his inclination, he is as innocent of
suicide as that man is innocent of murder, who, se defendendo, in his own
defence, kills another who, felleo animo, presses upon him. And so the
crowner found it ‘Christian burial;’ for although the ‘churlish priest’
tells Laertes that ‘her death was doubtful,’ yet the queen says—
There, on the pendent boughs her coronet weeds
Clambering to hang, an envious sliver broke;
When down her weedy trophies, and herself,
Fell in the weeping brook.
And although, according to this account, the water cannot be said to come
to Ophelia, it appears that she was drowned, not ‘wittingly,’ but against
her inclination. Suicides were not entitled to what is called ‘Christian
burial,’ for it was formerly the custom to drive a stake through the body
of one who had been guilty of self-murder, and to bury it in the highway;
but this brutal law and ignominious burial has been altered by the 4 Geo.
IV. c. 52, which directs that a person felo de se shall be buried without
any stake driven through the body, privately in a churchyard, within
twenty-four hours from the finding of the inquisition, and between the
hours of nine and twelve at night; but this statute does not authorise
the performance of the rites of burial.
_Ch. Just._ I then did use the person of your father,
The image of his power lay then in me:
And, in the administration of his law,
Whiles I was busy for the commonwealth,
Your highness pleased to forget my place,
The majesty and power of law and justice,
The image of the king whom I presented,
And struck me _in my very seat of judgment_;
Whereon, as an offender to your father,
I gave bold way to my authority,
And did commit you.
_2 Henry IV._, Act v. Scene 2.
Injuria illata judici, seu locum tenenti regis, videtur ipsi regi illata,
maxime si fiat in exercentem officium (3 Inst. 1).
Shakespeare in this passage probably refers to this maxim, or to the law
which it describes. The Chief Justice says, ‘When I did use the person of
your father, &c., you struck me in my very judgment seat, whereon as an
offender to your father I did commit you,’ and according to this maxim,
an injury offered to a judge, or one holding the place of the king, is
considered to be offered to the king himself, especially if done in
exercise of the office of a judge.
In the first part of ‘Shakespeare Illustrated by Old Authors,’ published
in the year 1867, I quoted this maxim in illustration of this passage,
beginning my comment with these words: ‘Shakespeare in this passage
probably _refers to this maxim or the law which it describes_.’ The
author of a book entitled ‘Shakespeare as a Lawyer’ quotes this passage
and this maxim after saying, ‘Shakespeare, in the following passage from
the second part of _Henry IV._, _refers to this maxim or to the law
which it describes_,’ using the initial words of my comment. Without
this explanation those who have read ‘Shakespeare as a Lawyer,’ and have
not seen ‘Shakespeare Illustrated by Old Authors,’ may suppose that
I, instead of originating this illustration, had adopted it without
acknowledgment.
This method of appropriation and concealment extends to other books of
mine. I give one more example of many. In ‘Shakespeare’s Euphuism,’
published in 1871, I showed that the advice of Euphues to Philatus was
probably the origin of the advice of Polonius to Laertes, but a few years
ago a ‘Life of Shakespeare’ was published by Smith, Elder and Co., in
which are these words—‘In later life, Shakespeare in _Hamlet_ borrows
from Lyly’s “Euphues” Polonius’s advice to Laertes,’ and this statement
is made without mentioning my name or my book, from which the information
was obtained. This and much more inclines me to say with Falstaff—
I would to God my name were not so terrible to the enemy as it
is.
_2 Henry IV._, Act i. Scene 2.
Puttenham in his ‘Second Book of Proportion Poetical,’ speaking of device
or emblem, says—
‘The Greeks call it Emblema, the Italians Impresa, and we, a
Device, such as a man may put into letters of gold and send
to his mistresses for a token, or cause to be embroidered in
Scutchions of arms on any bordure of a rich garment, to give by
his novelty marvel to the beholder.’
To this impresa Shakespeare refers in _Richard II._, when Bolingbroke,
addressing Bushby and Green, says—
You have fed upon my signories,
Dispark’d my parks and fell’d my forest woods,
From my own windows torn my household coat,
Razed out my _imprese_, leaving me no sign,
Save men’s opinions and my living blood,
To show the world I am a gentleman.
_Richard II._, Act iii. Scene 1.
The tearing of Bolingbroke’s household coat was actionable, according to
the old maxim quoted by Coke, ‘Actio datur si quis arma, in aliquo loco
posita, delevit seu abrasit’ (3 Institute, 202). In _Pericles_, ii. 2,
Thaisa describes the devices on the shields of the six knights.
_Hor._ How was this seal’d?
_Ham._ Why, even in that was heaven ordinant.
I had my father’s signet in my purse,
Which was the model of that Danish seal;
Folded the writ up in form of the other,
Subscribed it, gave’t the impression, placed it safely,
The changeling never known.
_Hamlet_, Act v. Scene 2.
Sigillum est cera impressa, quia cera sine impressione non est sigillum
(Co. 3 Institute, 169).
The wax without an impression would not be a seal. Hamlet subscribed the
writ and also impressed the wax with his father’s signet. Crimen falsi
dicitur, cum quis illicitus, cui non fuerit ad hæc data auctoritas, de
sigillo regis rapto vel invento, brevia, cartasve consignaverit (Fleta).
_Lear._ No, they cannot touch me for coining; I am the king
himself.
_Lear_, Act iv. Scene 6.
Monetandi jus comprehenditur in regalibus quæ nunquam a regio sceptro
abdicantur (Dav. 18).
Shakespeare may here refer to this maxim, that the right of coining is
comprehended in those regal rights which are never removed from the regal
sceptre.
_Scici._ What is the city but the people?
_Cit._ True, the people are the city.
_Coriolanus_, Act iii. Scene 1.
In this passage Shakespeare probably refers to the maxim, Civitas et urbs
in hoc differunt quod incolæ dicuntur civitas, urbs vero complectitur
ædificia (Mirror, cap. 2, sect. 18, Brit. fol. 87, Co. Litt. 109b). A
city and a town differ in this, that the inhabitants are called the
city, but the town comprises the buildings.
_Duke._ We have strict statutes, and most biting laws,
(The needful bits and curbs to headstrong steeds,)
Which for these fourteen years we have let slip;
Even like an o’ergrown lion in a cave,
That goes not out to prey. Now, as fond fathers,
Having bound up the threatening twigs of birch,
Only to stick it in their children’s sight
For terror, not to use; in time the rod
Becomes more mock’d than fear’d; so our decrees,
Dead to infliction, to themselves are dead;
And liberty plucks justice by the nose;
The baby beats the nurse, and quite athwart
Goes of decorum.
_Measure for Measure_, Act i. Scene 3.
The wisdom of the law abhors that great offences should go unpunished,
which was grounded without question upon these ancient maxims of law and
state: Maleficia non debent remanere impunita, et impunitas continuum
affectum tribuit delinquendi, et minatur innocentes qui parcit nocentibus
(Co. Rep. iv. 45).
Crimes ought not to remain unpunished, and impunity offers a continual
temptation to the delinquent.
Spes impunitatis continuum affectum tribuit delinquendi (3 Institute,
236).
_Macb._ There’s blood upon thy face.
_Mur._ ’Tis Banquo’s, then.
_Macb._ ’Tis better thee without than he within.
Is he despatch’d?
_Mur._ My lord his throat is cut; that I did for him.
_Macb._ Thou art the best o’ the cut-throats:
Yet he’s good
That did the like for Fleance: if thou didst it,
Thou art the nonpareil.
_Mur._ Most royal sir,
Fleance is ’scaped.
_Macb._ Then comes my fit again: I had else been _perfect_,
Whole as the marble, founded as the rock,
As broad and general as the casing air.
_Macbeth_, Act iii. Scene 3.
Id perfectum est quod ex omnibus suis partibus constat; et nihil
perfectum est dum aliquid restat agendum (9 Co. 9).
Fleance had escaped, therefore Macbeth was not perfect, because something
remained to be done to make him—
Whole as the marble, founded as the rock.
_King._ Things done well,
And with a care, exempt themselves from fear;
Things done without example, in their issue
Are to be fear’d. Have you a precedent
Of this commission? I believe, not any.
We must not rend our subjects from our _laws_
And stick them in our _will_.
_Henry VIII._, Act i. Scene 2.
‘Neither have judges,’ says Coke, ‘power to judge according to that which
they think fit, but that which out of the laws they know to be right
and consonant to law.’ Judex bonus nihil ex arbitrio suo faciat, nec
proposito domesticæ voluntatis sed juxta leges et jura pronunciet (7 Co.
Rep.).
According to this maxim a good judge may do nothing from his free choice
or private _will_, but he must decide according to the _laws_, and King
Henry says—
We must not rend our subjects from our _laws_
And stick them in our _will_.