The lawyer, when he reads attentively the works of William Shakespeare, may not be more surprised by the poet’s correct use of law terms, and intimate acquaintance with legal customs and tenures, and the lex scripta, than by his extensive and profound knowledge of the maxims of the English law.

Nemo debet esse judex in suâ propriâ causâ (12 Rep. 113). No one ought to be a judge in his own cause. It is a fundamental rule in the administration of justice that a man cannot be judge in a cause in which he is interested (per cur. 2 Stra. 1173). Nemo sibi esse judex vel suis jus dicere debet (C. 3, 5, 1).

If a man will prescribe, that if any cattle were upon the demeanes of the manor, there doing damage, that the lord of the manor for the time being hath used to distrain them, and the distress to retain till fine were made to him for the damages at his will, this prescription is void; because it is against reason, that if wrong be done any man, that he thereof should be his own judge; for by such way, if he had damages but to the value of a halfpenny, he might assess and have therefor one hundred pounds, which would be against reason. And so such prescription, or any other prescription used, if it be against reason, this ought not nor will not be allowed before judges; Quia malus usus abolendus est. An evil or invalid custom ought to be abolished (Co. Litt. s. 212). It is also a maxim of the law of England, that Aliquis non debet esse judex in propriâ suâ causâ quia non potest esse judex et pars (Co. Litt. 141a).

Portia and Queen Katherine both seem to refer to this maxim; and Olivia promises, when the persons are discovered who have made Malvolio—

that she will then allow him to be both plaintiff and judge of his own cause, notwithstanding that Nemo debet esse judex in propriâ suâ causâ.

Portia may expound the law of Venice, but in the English law it is an established rule to abide by former precedents, stare decisis, where the same points come again in litigation. An English judge is sworn to determine, not according to his own private judgment (see per Lord Camden, 19 Howell’s State Trials, 1071; per Williams, L. 4, Cl. and Fin. 729), but according to the known laws and customs of the land; not appointed to pronounce a new law, but to maintain and expound the old, Jus dicere et non jus dare: (I. Bla. Com. per Lord Kenyon, C. J., 5 T. R. 682, 6 Id. 605, and 8 Id. 239; per Grose, J., 13 East, 321; per Lord Hardwick, C. Ellis v. Smith. 1 ves Jun. 16 T. R. 696, I. B. & B. 563). Stare decisis et non quieta movere—to stand by things as decided, and not to disturb those things which are tranquil, for Omnis innovatio plus novitate perturbat quam utilitate prodest (2 Bulstr. 388);—every innovation occasions more harm and derangement of order by its novelty, than benefit by its abstract utility. The ancient judges of the law have ever (as appeareth in our books) suppressed innovations and novelties in the beginning, as soon as they have offered to creep up, lest the quiet of the common law might be disturbed, and so have Acts of Parliament done the like (Co. Litt. 379b). The judges say in one book, ‘We will not change the law which always hath been used’; and another saith, ‘It is better that it be turned into a default than the law should be changed, or any innovation made’ (Co. Litt. 282b).

The rule—stare decisis—does, however, admit of exceptions, where the former determination is most evidently contrary to reason or divine law.

Ad quæstionem facti non respondent judices ad quæstionem legis non respondent juratores (8 Rep. 308).

It is the office of the judge to instruct the jury in points of law—of the jury to decide on matters of fact. It is the office of the judges to instruct the grand assize or jury in points of law; for as the grand assize or other jurors are triers of the matters of fact, ad quæstionem facti non respondent judices, so, ad quæstionem juris non respondent juratores. It is of the greatest consequence to the law of England and to the subject that these powers of the judge and jury be kept distinct, that the judge determine the law, and the jury the fact; and if ever they come to be confounded, it will prove the confusion and destruction of the law of England (Rex v. Poole, Cas. temp. Hardw. 28).

In æquali jure melior est conditio possidentis (Plowd. 296). Where the right is equal, the claim of the party in possession shall prevail. The lowest and most imperfect degree of title consists in the mere naked possession, or actual occupation of the estate, without any apparent right, or any shadow or pretence of right, to hold and continue such possession. This may happen when one man invades the possession of another, and by force or surprise turns him out of the occupation of his lands; which is termed a desseisin, being a deprivation of that actual seisin, or corporal freehold of the lands, which the tenant before enjoyed (2 Bla. Com. 195; 1 Institute, 345). Or it may happen that after the death of the ancestor and before the entry of the heir, or after the death of the particular tenant and before the entry of him in remainder or reversion, a stranger may contrive to get possession of the vacant land, and hold out him that had a right to enter. In such cases the wrong-doer has only a mere naked possession, which the rightful owner may put an end to by a variety of legal remedies. But until some act be done by the rightful owner to divest this possession and assert his title, such actual possession is prima facie evidence of a legal title in the possessor; and it may by length of time, and negligence of him who hath the right, by degrees ripen into a perfect and indefeasible title (Bla. Com. 196).

King John seems to refer to this maxim when he says—

but Elinor says—

because John was not in æquali jure with Arthur, but he was a wrong-doer, having merely a naked possession; for after the death of Richard I., John occupied the throne in defiance of the right of his nephew Arthur, who was the son of John’s elder brother Geoffry.

Vir et uxor sunt quasi unica persona, quia caro una, et sanguis unus. (Bracton, lib. 5, Tract. 5, cap. 25).

Man and wife are as one person, because they are one flesh and blood. A man may not grant nor give his tenements to his wife, during the coverture, for that his wife and he be but one person in law (Litt. S. 168).

If a joint estate be made of land to a husband and wife and to a third person, in this case the husband and wife have in law in their right but the moiety, and the third person shall have as much as the husband and the wife, viz. the other moiety. And the cause is, for that the husband and wife are but one person in law, and are in like case as if an estate be made to two joint tenants, where the one hath by force of the jointure the one moiety in law, and the other the other moiety (Litt. S. 221): for the husband and wife are accounted to be one person in law, Duæ animæ in carne una (Lex divina, and see 4 Rep. 118).

Fal. Of what quality was your love, then?

Ford. Like a fair house, built upon another man’s ground; so that I have lost my edifice, by mistaking the place where I erected it.

Merry Wives of Windsor, Act ii. Scene 2.

Quick. Marry, sir, I come to your worship from Mistress Ford.

Fal. Mistress Ford! I have had ford enough; I was thrown into the ford; I have my belly full of ford.

Quick. Alas the day! good heart, that was not her fault: she does so take on with her men; they mistook their erection.

Fal. So did I mine, to build upon a foolish woman’s promise.

Merry Wives of Windsor, Act iii. Scene 5.

Quicquid plantatur solo solo cedit (Went. Off. Ex. 14 ed. 145). Whatever is affixed to the soil belongs to the soil. It is a general and a very ancient rule of law that whatever is affixed to the soil becomes, in contemplation of law, a part of the soil, and is consequently subject to the same rights of property as the soil itself. The ancient common law, regarding land as of far more consequence than any chattel which could be fixed to it, always considered everything attached to the land as part of the land (4 Rep. 64a; Lord Raymond, 738; Mackintosh v. Trotter, 3 Mee & Wel. 184, 186). Hence it follows that houses themselves, which consist of an aggregate of chattels personal (namely, timber, bricks, &c.) fixed to the land, were regarded as land and passed by a conveyance of the land without express mention; and this is the law at the present time. So if a man eject another from land and afterwards build upon it, the building belongs to the owner of the ground on which it is built, according to the principle Ædificatum solo solo cedit. But where a man, supposing that he has a good title to an estate, builds upon the land with the knowledge of the real owner, who allows the erections to be made, without giving any notice of his claim, the Court of Chancery will compel him, in a suit brought for the recovery of the land, to make due allowance and compensation for such improvements. Ford evidently refers to this maxim, and Falstaff probably intends this much to be understood, that he committed as great a mistake, by building upon a foolish woman’s promise, as they make who build upon another man’s ground. Shakespeare does not in either of these passages, as Lord Campbell supposed, refer to Cujus est solum ejus est usque ad cœlum, which expresses the extent of the rights of the owner of land, but he refers to the maxim Ædificatum solo solo cedit, which expresses the action of building on another man’s land and the legal consequence of doing so.

When Shakespeare quotes a legal maxim he generally gives the words of the maxim and the law which it describes. So Ford makes use of the verb ‘build’ and the noun ‘edifice’ which words are exact translations of ædifico and ædificium.

George Chapman, in ‘May Day,’ makes a humorous application of Ædificium cedit solo. Ædificatum solo solo cedit, and Quicquid plantatur solo solo cedit, have their origin in Justinian’s Institutes.

Dormiunt aliquando leges, moriuntur nunquam. The laws sometimes sleep, they never die. Although it was a maxim of the civil law that as laws might be established by custom, they could likewise become obsolete by disuse or be abrogated by contrary usage, Ea vero quæ ipsa sibi quæque civitas constituit sæpe mutari solent vel tacito consensu populi vel aliâ posteâ, lege latâ (I. L. 2, 11, Irving, Civil Law, 4th ed., 123): and by the law of Scotland a statute is said to lose its force by disuse (Stair, Macdonal, Wallace), if it has not been in execution for sixty years, and, according to some Scotch lawyers for a hundred years, and a distinction is made between statutes which are as it were half obsolete and those in viridi observantiâ, yet by the law of England every statute continues in force until it is repealed by a subsequent Act of Parliament. Lex Angliæ sine parliamento mutari non potest (2 Institute, 619), for nothing is so agreeable to natural equity as that everything should be dissolved by the same means which made it binding. Nihil tam conveniens est naturali æquitati quam unumquodque dissolvi eo ligamine quo ligatum est (2 Institute, 360).

The statutes can only be altered or repealed by the same authority by which they were made—jura eodem modo distituuntur quo constituuntur (Dwarr. Stats. 672), eodem ligamine quo ligatum est dissolvitur (Co. Litt. 212b).

The Lord Chancellor (a cancellando, from his power to cancel letters patent, being the highest point of his jurisdiction) or Lord Keeper, is the chief judge in the extraordinary Court of Equity, as well as in the ordinary Court of Common Law (4 Inst. 79, 82, 88, Wood’s Inst. 2nd ed. pp. 459, 460). He is not made by letters patent, but by the delivery of the Great or Broad Seal to him, and by taking an oath to serve the king and his people faithfully in the office of Lord Chancellor (4 Inst. 87). He is made Lord Chancellor of England or Lord Keeper of the Great Seal, per traditionem magni sigilli sibi per dominum regem, and by taking his oath forma cancellarium constituendi regnante Henrico Secundo fuit appendendo magnum Angliæ sigillum ad collum cancellarii electi (Camden, p. 131). Thus the delivery of the king’s seal or the taking it away, alluded to by Shakespeare in this passage, is the ceremony used in making or unmaking a Lord Chancellor. Some have gotten it by letters patent at will (35 Hen. VI. 3 b. of Winch., I Hen. VI. sec. 16) and one for term of his life (Cardinal Wolsey); but it was holden void, because an ancient office must be granted as it hath been accustomed (4 Inst. 87).

If a sheriff or a gaoler suffers a prisoner, who is taken upon mesne process (that is, during the pendency of a suit) to escape, he is liable to an action on the case (Cro. Eliz., 625). But if after judgment a gaoler or a sheriff permit a debtor to escape, who is charged in execution for a certain sum, the debt immediately becomes his own, and he is compellable by an action of debt, being for a liquated sum and ascertained, to satisfy the creditor his whole demand; which doctrine is grounded on the Equity of the Statute of Westminster second (13 Edw. I. c. 11, and I. Rich. II. c. 12. Bro. Alr. t. parliament, 192; Inst. 382; 3 Bla. Com. 165), ubi jus ibi remedium (I. T. R. 512). There is no wrong without a remedy. Jus, in the sense in which it is used in this maxim, signifies ‘the legal authority to do or to demand something’ (Mackfield, Civ. Law, 6). Remedium may be defined to be the right of action, or the means given by law for the recovery of a right, and, according to this maxim, whenever the law gives anything, it gives a remedy for the same; Lex semper dabit remedium (Jacob, Law Dic. title Remedy, Bac. Alr., actions in general). Every injury to a legal right necessarily imports damage in the nature of it, though there be no pecuniary loss (per Holt, C. J., Ashly v. White, 2 Lord Raymond). Thus where a prisoner is in execution or final process, the creditor has a right to the body of his debtor every hour till the debt is paid; and an escape of the debtor, for ever so short a time, is necessarily a damage to him, and an action for an escape lies (Williams v. Mostyn, 4 M. & W. 153; Wylie v. Birch, 4 Qu. B. 566, 567; Clifton v. Hooper, 6 Qu. B. 468).

An oath is an affirmation or denial of anything before one that hath authority to administer the same, calling God to witness that his testimony is true (3 Inst. 165, C. 74). Sacramentum, habet in se tres comites, veritatem, justiciam et judicium; veritas habenda est in juratore; justicia et judicium in judice (Bracton, I. 4, f. 186). Four sorts of oaths have been enumerated, viz., Juramentum promissionis, where an oath is taken to do or not to do such a thing (it appears that York had taken an oath of this description); Juramentum purgationis, which is where a person is charged with any matter by bill in Equity; Juramentum probationis, where one is produced as a witness to prove or disprove a thing; and Juramentum triationis, where one is sworn to try the issue, such as a juror. The oath must be lawful, allowed by the common law or some Act of Parliament; so Salisbury says—

and it must be taken before one that hath authority, not before a person acting in a private capacity, or pretending to have authority where he hath none; nor by one that goes beyond the authority which was granted. For such false oaths cannot amount to perjury in law, because they are of no validity, being coram non judice (3 Institute, 165; 4 Institute, 278, 279; 2 Roll. Alr. 257; Wood’s Institute, 2nd ed., pp. 411, 412).

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—

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—

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.

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).

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.

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).

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—

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—

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.

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).