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.
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).
_York._ I took an oath that he should quietly reign.
_Edw._ But, for a kingdom, any oath may be broken:
I would break a thousand oaths to reign one year.
_Rich._ No; God forbid, your grace should be forsworn.
_York._ I shall be, if I claim by open war.
_Rich._ I’ll prove the contrary, if you’ll hear me speak.
_York._ Thou canst not, son; it is impossible.
_Rich._ An oath is of no moment, being not took
Before a true and lawful magistrate,
That hath authority over him that swears:
Henry had none, but did usurp the place;
Then, seeing ’twas he that made you to depose,
Your oath, my lord, is vain and frivolous.
Therefore, to arms.