CLEAVE-REFELLED. Clif. Plantagenet! I come, Plantagenet! 33 Concerning the other two (the lawyer I meane and the souldier) whether of them deserveth better of the commonwealth, and whether is to bee preferred before the other, is a question so incident to this controversie, and cleaveth so close thereunto, that there bee few writers which handle the one, but they also touch the other. In the determination whereof, if the interpreters of the lawe may be judges in their owne cause, then the sentence must needes be, cedant arma togae. Swinburn, 28. 'Whether,' often used by old authors for ' which.' 'Cleave,' to cling to, adhere. Duke. Mended again. The matter; proceed. Isab. In brief, to set the needless process by, How I persuaded, how I pray'd, and kneel'd, Measure for Measure, Act v. Sc. 1. Albeit the childe be borne blind, or lame, yet is the husbande presumed to have begotten the same, and not the adulterer. In which case, neverthelesse some have beene of this opinion, that this childe was begotten in adulterie, being so borne (as they imagined) by God's providence and justice, because of the sinne of the parentes: whose rash opinion is by others refelled as erronious and blinde. I think I remember reading in this passage in some edition of Shakespeare's Works the word repelled for refelled. Swinburn uses repelled often, but I remember seeing refelled once only in his Treatise. Mer. O, thou art deceived; I would have made it short: for I was come to the whole depth of my tale; and meant, indeed, to occupy the argument no longer. Romeo and Juliet, Act ii. Sc. 4. First Gent. A notable passion of wonder appeared in them; but the wisest beholder, that knew no more but seeing, could not say if the importance were joy or sorrow; but in the extremity of the one, it must needs be. Winter's Tale, Act v. Sc. 1. The limitations of this former conclusion are these : First, when the testator doth in his testament give licence to the legatarie to take and occupie the same, without deliverie of the executor; which licence may be granted either expressly or secretly: expressly, when the testator saith, I bequeath my horse to A. B., giving him licence to take him, and to possesse, him of his owne authoritie, without any deliverie to be made by my executor: Secretly, when the testator saith, I bequeath unto him my horse, which I will that he quietly enjoy without trouble or molestation; or by words of like importance. Swinburn, 289. IMPORTANCE-WHOLESOME MANNERS. 35 Occupy, use. Importance, here used by Shakespeare and Swinburn for import. Cor. Think upon me! hang 'em! I would they would forget me, like the virtues Which our divines lose by 'em. Men. You'll mar all: I'll leave you: pray you, speak to 'em, I pray you, In wholesome manner. Coriolanus, Act ii. Sc. 3. A Testament is defined to be a just sentence, we are to consider that this word just, hath divers significations in law. Sometimes it is opposed to that which is wicked or repugnant to justice, equitie, and to good and wholesome manners. Being taken in this sense, it giveth us to understand, that the testator cannot commande any thing that is wicked, or against justice, pietie, equity, honestie, &c. For things unlawfull are also reputed impossible: and therefore if the testator should commande any such thing in his testament, the same were not to be observed. As if he should wil any man to be murthered; for this is against the law of God: or if he should commande his body to be cast into the river, for this is against humanitie; or if he should commande his goods to be burned, for this is against policie; or if he should commande any ridiculous acte, or prejudiciall onely to his owne credite and dignitie; as if he should will his buriall or funerals to be solemnised with Maygames or Morrice daunces, for this were to manifest his follie, or at least to make question whether he were of sound minde and memorie. In these and the like cases the Executor in not performing the commandements or requests of the testator is not onely holden excused, but is highly commended. -Swinburn, page 6. Marc. Suffer thy brother Marcus to inter Titus Andronicus, Act i. Sc. 2. Funerals. This word is used several times Macbeth. Methought I heard a voice cry 'Sleep no more! Macbeth does murder sleep,' the innocent sleep, Macbeth, Act ii. Sc. 2. Timon. Although, I know, you'll swear, terribly swear Into strong shudders and to heavenly agues The immortal gods that hear you, spare your oaths, I'll trust to your conditions: be whores still. Timon of Athens, Act iv. Sc. 3. 'SORE LABOUR'S BATH.' 37 In the opinion of some, the lawe of this land which leaveth all the residue to the disposition of the testator, funeralles and debts deducted, seemeth to have better grounde in reason, then the custome, whereby he is forced either to leave two partes of three, or at least the one halfe to his wife and children. For what if the sonne be an unthrifte or naughtie person, what if the wife be not onlie a sharpe shrowe, but perhaps of worse conditions? Is it not harde that the testator must leave either the one halfe of his goods to that wife or child or more, for the which also peradventure hee had labored full sore all his life? were it not more reason that it should be in the libertie of the father, or husband to dispose thereof at his owne pleasure? which when the wife and children understood, it might be a means whereby they might become more obedient, live more vertuoslie, and contend with good desert, to winne the good will and favour of the testator. These reasons make for the testator, and for the equitie of the common law, which leaveth the whole residue to his disposition. But the custome whereby the libertie of the testator is restrained is not without reason also. For where it is asked, what if the child be an unthrifte, the wife worse then a shrowe? So it maie be demanded with like faciltie, what if the wife be no unthrifte, but frugall and vertuous? what if the wife be an honest and modest woman? which thing is the rather to be presumed. But if it be not amisse to feare the worst, then on the contrarie, what if the testator be an unnaturall father or unkinde husband? perhaps also greatly enriched by his wife, whereas before he was but poore, standeth it not with as great reason that such a wife and children should be provided for, and that it shoulde not be in the power of such a testator, to give all from them, or to bestowe it |