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).