Part 1

SHAKESPEARE’S LEGAL MAXIMS.

SHAKESPEARE’S LEGAL MAXIMS.

BY WILLIAM LOWES RUSHTON, OF GRAY’S INN, BARRISTER-AT-LAW.

Corresponding Member of the Berlin Society for the Study of Modern Languages; Corresponding Member of the State Historical Society of Wisconsin, U.S.A.; Corresponding Member of the Manchester Shakespeare Society; Author of ‘Shakespeare a Lawyer,’ ‘Shakespeare Illustrated by Old Authors,’ ‘Shakespeare Illustrated by the Lex Scripta,’ ‘Shakespeare’s Testamentary Language,’ ‘Shakespeare’s Euphuism,’ ‘Shakespeare an Archer,’ &c.

_Juvat integros accedere fontes atque haurire._

LUCRETIUS.

_It is pleasant to handle an untouched subject._

HENRY FIELDING.

LIVERPOOL: HENRY YOUNG & SONS, 1907.

NOTICE.

The first edition of this attempt to illustrate obscure passages in the works of William Shakespeare by legal maxims was published when I was a student-at-law. It was sent to the press for review, and some of the London papers referred to it as a second edition of ‘Shakespeare a Lawyer.’ The only notice I saw of it appeared in the _Liverpool Albion_ as follows:—

‘Not very long since, Mr. Rushton published a pamphlet, “Shakespeare a Lawyer,” which attracted considerable attention in the literary and theatrical world. It is well known that Lord Campbell, some time afterwards, published a similar work, availing himself, without acknowledgment, of Mr. Rushton’s labours, as the _Examiner_ conclusively pointed out. Like its predecessor, this brochure shows the author is deeply read in law.’

On page 100 of ‘William Shakespeare’ by Karl Elze, published in Germany in 1876, the following may be seen:—

‘Lord Campbell, “Shakespeare’s Legal Acquirements,” London, 1859—Vergl. ausserdem W. L. Rushton, “Shakespeare a Lawyer,” London, 1858. Rushton ist schon vor Lord Campbell zu dem gleichen Ergebnisse gekommen wie dieser, wenngleich sich seine Schrift im Uebrigen nicht mit der des letztern messen kann. Beachtung verdienen jedoch Rushton’s Erklärungen der einschlagenden Stellen bei Shakespeare.’

German students of Shakespeare, who are induced by this note to refer to Lord Campbell’s ‘Shakespeare’s Legal Acquirements Considered’ for accurate explanations of the law and law terms they meet with in Shakespeare’s works, will often be misinformed, because that book contains many mistakes in law.

Bacon, in his ‘Legal Maxims,’ says, ‘It might have been more flourish and ostentation of reading to have vouched the authorities and sometimes to have enforced or noted them; yet I have abstained from that also, and the reason is, because I judged it a matter undue and preposterous to prove rules and maxims.’ I should have saved myself some trouble if I had ‘abstained from the flourish and ostentation’ of vouching my authorities.

In the plays of Ben Jonson, George Chapman, and other dramatists of their time, legal maxims are to be seen in Latin. Shakespeare never quotes legal maxims in Latin, but he gives correct translations of them which are so embodied in his verse and prose that they have not the appearance of quotations. This may be one of the reasons why they have not been noticed by the commentators. Another reason may be that the commentators who were not members of the legal profession did not recognise them because they were ignorant of law, and the commentators who were lawyers did not recognise them because they were ignorant of Shakespeare. Shakespeare’s correct translations of legal maxims are, I think, the only satisfactory evidence we have of his knowledge of Latin.

I now give one example of Shakespeare’s correct translations of the Latin maxims, and of the good verse he makes of it.

Dormiunt aliquando leges moriuntur nunquam.

The law hath not been dead, though it hath slept.

where the verbs dormio and morior in Latin are represented correctly by the verbs sleep and die in English. Although Bacon’s legal maxims are twenty-five in number I have not found any of them in Shakespeare’s plays, but a portion of one of them[1]—Sententia definitiva, revocari non potest, as I venture to put it—expresses the law to which Shakespeare refers in the _Comedy of Errors_.

_Duke._ But, though thou art adjudged to the death, And _passed sentence cannot be recall’d_ But to our honour’s great disparagement, Yet will I favour thee in what I can.

_Comedy of Errors_, Act i. Scene 1.

Those who believe that Francis Bacon wrote the plays attributed to William Shakespeare may think that this statement is worthy of consideration.

Some commentators have concluded that Shakespeare was not a lawyer because, as they say, he has made mistakes in law. In answer to this conclusion, I ask three questions.

1. Is there a barrister or a solicitor in large practice, or a judge on the bench, who can say with truth, ‘I never made a mistake in law’?

Seldom sits the judge that may not err.

_Partheniades._

2. Why have we a Court of Appeal?

3. Was it established to confirm or reverse the judgments and decisions of men who were _not_ lawyers?

But it is not necessary to cite the Court of Appeal to prove that even learned lawyers make mistakes in law. It is sufficient to mention Lord Campbell, who in his ‘Shakespeare’s Legal Acquirements Considered,’ has made several mistakes in law, a few of which I have noticed in Archiv. f. n. Sprachen and in ‘Shakespeare’s Testamentary Language,’ published in the year 1869. The Appendix B. of that book concludes with these words: ‘We all know that Lord Campbell was a lawyer of great experience, yet in his “Shakespeare’s Legal Acquirements Considered” he has made several mistakes in law. How, then, could any errors in law which I might find in Shakespeare’s works afford conclusive evidence that Shakespeare was not a lawyer?’

4 ULLET ROAD, DINGLE, LIVERPOOL, _Long Vacation, 1907_.

SHAKESPEARE’S LEGAL MAXIMS.

Qui genus humanum ingenio superavit, et omnis Restinxit, stellas exortus uti aerius sol.

_Lucretius._

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.

_Portia._ To offend and judge are distinct offices, And of opposed natures.

_Merchant of Venice_, Act iii. Scene 1.

_Queen Katherine._ I do believe, Induc’d by potent circumstances, that You are mine enemy; and make my challenge You shall not be my judge: for it is you Have blown this coal betwixt my lord and me,—Which God’s dew quench!—Therefore I say again, I utterly abhor, yea, from my soul Refuse you for my judge; whom yet once more I hold my malicious foe, and think not At all a friend to truth.

_Henry VIII._, Act ii. Scene 4.

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).

_Olivia._ This practice hath most shrewdly pass’d upon thee; But, when we know the grounds and authors of it, Thou shalt be both the plaintiff and the judge Of thine own cause.

_Twelfth Night_, Act v. Scene 1.

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

The most notorious geek and gull That e’er invention play’d on,—

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.

_Shy._ My deeds upon my head! I crave the law, The penalty and forfeit of my bond.

_Por._ Is he not able to discharge the money?

_Bass._ Yes, here I tender it for him in the court; Yea, twice the sum: if that will not suffice, I will be bound to pay it ten times o’er, On forfeit of my hands, my head, my heart: If this will not suffice, it must appear That malice bears down truth. And, I beseech you, Wrest once the law to your authority: To do a great right, do a little wrong; And curb this cruel devil of his will.

_Por._ It must not be; there is no power in Venice Can alter a decree established: ’Twill be recorded for a precedent; And many an error, by the same example, Will rush into the state: it cannot be.

_Merchant of Venice_, Act iv. Scene 1.

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.

_Cranmer._ Ah, my good lord of Winchester, I thank you; You are always my good friend: if you will pass, I shall both find your lordship judge and juror.

_Henry VIII._, Act v. Scene 2.

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).

_Eli._ What now, my son! have I not ever said, How that ambitious Constance would not cease, Till she had kindled France, and all the world, Upon the right and party of her son? This might have been prevented, and made whole, With very easy arguments of love; Which now the manage of two kingdoms must With fearful bloody issue arbitrate.

_K. John._ Our strong possession, and our right for us.

_Eli._ Your strong possession, much more than your right, Or else it might go wrong with you and me: So much my conscience whispers in your ear, Which none but heaven, and you, and I, shall hear.

_King John_, Act i. Scene 1.

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—

Our strong possession and our right for us.

but Elinor says—

Your strong possession much more than your right,

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.

_Hamlet._ Farewell, dear mother.

_King._ Thy loving father, Hamlet.

_Hamlet._ My mother: father and mother is man and wife; Man and wife is one flesh; and so, my mother.

_Hamlet_, Act iv. Scene 3.

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.

_Angelo._ The law hath not been dead, though it hath slept.

_Measure for Measure_, Act ii. Scene 3.

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).

_Wolsey._ That seal You ask with such a violence, the king (Mine and your master) with _his own hand gave me_; Bad me enjoy it, with the place and honours, During my life; and to confirm his goodness, Tied it by letters-patents:—now, who’ll take it?

_Sur._ The king, that gave it.

_Wol._ It must be himself, then.

_Henry VIII._, Act iii. Scene 2.

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).

_Ant. E._ What, will you murder me? Thou gaoler, thou, I am thy prisoner: wilt thou suffer them To make a rescue?

_Off._ Masters, let him go: He is my prisoner, and you shall not have him.

_Pinch._ Go bind this man, for he is frantic too.

_Adr._ What wilt thou do, thou peevish officer? Hast thou delight to see a wretched man Do outrage and displeasure to himself?

_Off._ He is my prisoner: if I let him go, The debt he owes will be requir’d of me.

_Comedy of Errors_, Act iv. Scene 4.