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Published online by Cambridge University Press: 02 December 2020
Like the English language, English law may be regarded as the fusion of two great cultural forces—the Germanic “folk-laws,” expressed in the early dooms of Æthelberht (c. 600) and in the laws of Alfred and Canute; and Roman law, as interpreted by the Norman conquerors, and set forth in the twelfth and thirteenth centuries by Glanvill and Bracton. From this fusion has developed a body of law which, in scope and influence, is probably without parallel in modern history. It is interesting to see how many of its basic principles find expression in the common proverbial wisdom of the folk. These proverbs correspond, on a popular level, to the Latin legal maxims of the learned, which represent the concentrated experience of generations of lawyers.
1 See James Williams, “Latin maxims in English law,” Law Magazine and Law Review, 4th ser., xx (1895), 283–295. Williams points out that some of these maxims give Roman law but that others, e.g., Ubi jus ibi remedium and Mobilia sequuntur personam, are indigenous to England.—For suggestion of this paper and for friendly counsel I am indebted to Professor Archer Taylor.
2 H. Broom, Legal Maxims (London, 1845), ch. v.
3 Quoted in Lyly's Euphues, 1579 (Tilley, No. 514). See M. P. Tilley, Elizabethan proverb lore in Lyly's Euphues and Pettie's Petite Pallace (New York, 1926). All references from Euphues are to this collection.
4 N & Q, 1st ser., i (1850), 370; iii (1851), 288.
5 Ibid., iii (1851), 381.
6 Büchmann, Geflügelte Worte, s.v. Cf. also N & Q, 7th ser., ii (1886), 212–213 and E. F. Sutcliffe in Irish Ecclesiastical Record (May, 1930), pp. 474–481.
7 De Reg. Princ., 2886.
8 Cicero, De legibus, iii, iii, 8. For Selden's comment on this maxim see his Table Talk, s.v. People, ed. Sir F. Pollock (London, 1927), p. 93.
9 This maxim, which Lord Mansfield used to good effect on the slave trial of 1772, was the motto of the Emperor Ferdinand I (d. 1564). In John Manningham's Diary (11 April 1603) we read: “When I was mentioning how dangerous and difficult a thing it would be to restore appropriacions, he [Thomas Overbury] said Fiat justicia et coelum ruat”; cited by E. Bensly in N & Q, clviii [1930], 391.
10 Some of these I have discussed in “The law and lawyers in English proverbs,” American bar association journal, xxi (1935), 724–727.
11 See Ed. Marshall in N & Q, 7th ser., ix (1890), 195–196.
12 Acts x. 34.
13 Book xv, ch. vi.
14 No. 3419. Unless otherwise indicated, proverbs cited will be found in G. L. Apperson, English proverbs and proverbial phrases (London, 1929).
15 Acts xix. 38. See V. S. Lean, Collectanea (Bristol, 1902–04), iv, 129.
16 Archer Taylor, The Proverb (Cambridge, Mass., 1931), p. 192.
17 Cf. G. Herbert, Jacula prudentum (1640): All are presumed good till they are found in a fault.
18 Broom, Legal Maxims, ch. iii, sec. 2.
19 Ibid., ch. v: Ignorantia facti excusat—ignorantia juris non excusat. Cf. Seiden, Table Talk, ed. Sir F. Pollock, p. 68.
20 Broom, Legal Maxims, ch. x. “A man may plead, not guilty,” writes Seiden, “& yet tell no lye, ffor by the Law, no man is bound to accuse himselfe” (Table Talk, ed. Pollock, p. 68).
21 See N & Q, 11th ser., i (1910), 463.
22 It occurs thus in Gower's Confessio amantis (1390), vii, 927. See G. Walz, Das Sprichwort bei Gower (Nördlingen, 1907), for examples (pp. 43–44).
23 For references see Archer Taylor, An Index to “The Proverb” (Helsinki, 1934), p. 41 (FF Communications No. 113).
24 James Williams in Law Magazine and Law Review, 4th ser., xx (1895), 294.
25 A. Chaisemartin, Proverbes et maximes du droit germanique, étudiés en eux-mêmes et dans leurs rapports avec le droit français (Paris, 1891), pp. 527–528.
26 N & Q, 3rd ser., vii (1865), 164.
27 Y. B. 34 Henry VI, fol. 38.
28 See N & Q, 5th ser., vii (1877), 349, 476–477.
29 Heywood, Proverbs (1546), Pt. ii, ch. iv.
30 iii. v. 133; R. Jente, The proverbs of Shakespeare with early and contemporary parallels, Washington University Studies, Vol. xiii, Humanistic series, No. 2 (1926), No. 250. Cf. also Sir Dunbar Plunket Barton, Links between Shakespeare and the law (London, 1929), p. 127.
31 Tilley, No. 507; see Taylor, Index, p. 55.
32 Chaucer puts the phrase in the mouth of his lawyer, Introduction to Man of Law's Prologue, 39–42; Skeat, Early English Proverbs (Oxford, 1910), No. 241.
33 Dereg. princ., 1772.
34 Usk, Testament of Love (c. 1387); see Apperson, p. 571.
35 Burr W. Jones, Law of Evidence, sec. 289. Cf. Chaisemartin, op. cit., pp. 256–257, and the references in Taylor, Index, p. 59.
36 The two latter date from the seventeenth century, the first from the sixteenth.
37 The Proverb, pp. 87–88.
38 “Of a monk on all sides,” which completes the proverb, indicates its age. See Apperson, s.v. ox.
39 For examples of this proverbial phrase, as well as of the obsolete proverb, “When the pig is offered, hold open the poke,” see OED, s.v. “pig.” The parallels from the Roman jurists cited by David Murray in his Lawyers' Merriments (Glasgow, 1912), p. 55, do not seem very close. See further Taylor, Index, p. 53.
40 J. Ray, A compleat collection of English proverbs (4th ed., 1768), quotes this as an Italian proverb: “Chi compra ha bisogno dicent' occhii, chi vende n'ha assai de uno. And it is an usual saying, Caveat emptor, Let the buyer look to himself. The seller knows both the worth and price of his commodity” (p. 83). There is an adaptation of the proverb in Lyly's Euphues (Tilley, No. 66): “In marriage as market-folks tell me, the husband should have two eyes, and the wife but one.”
41 See Broom, Legal maxims, ch. vi, sec. 3; E. Graf and M. Dietherr, Deutsche Rechtssprichwörter (2.Aufl., Nördlingen, 1869), pp. 259–261.
42 Two proverbs are merged in the phrase, “to pay the piper”: the one cited above, and “Those who dance must pay the piper.” The only example of the first quoted in Apperson is from 1923!
43 Canterbury Tales, Prologue, 562–563. See B. J. Whiting, Chaucer's Use of Proverbs (Cambridge, Mass., 1934), p. 76.
44 Skeat, Early English proverbs (Oxford, 1910), No. 84.
45 See Taylor, Index, p. 35.
46 History of English law, ii, 211. Cf. the footnote, ibid.: “This is the Lombard launichild (Lohngeld) … Is the modern custom of nominally selling, not giving, a knife or other weapon or weapon-like thing to be regarded as a mere survival of this? Or has the launichild coalesced with some other and perhaps even older superstitious form?”
47 The etymology of “notchel” is marked doubtful by the OED; perhaps, like “nichils” it derives from med. Lat. nichil (class. Lat. nihil).
48 Cf. The legal code of Alfred the Great, ed. Milton H. Turk (Boston, 1893), pp. 68 ff.
49 See Chaisemartin, op. cit., pp. 493–495; Gaston Girard, Art und Form der Strafe bei den Angelsachsen (Zürich, 1920), pp. 3–10.
50 See Jente, No. 31. For examples in Lydgate see J. Duschl, Das Sprichwort bei Lydgate (Weiden, 1912), Nos. 155, 106.
51 Jente, No. 241; Skeat, No. 246; Tilley, No. 739.
52 Pt. i, ch. x.
53 Pollock and Maitland, History of English law, i, 31. The native proverb alluded to is: þe brecht ungewealdes bete gewealdes. Cf. the maxim, Qui peccat ebrius luat sobrius (Broom, ch. i).
54 See W. Harrison's Description of England (1577), book ii, ch. xi; reprinted in Transactions New Shakespere Society, series vi (1877), pp. 227–228.
55 The best account of this is by George Watson, “Jeddart Justice: an inquiry into its origin,” Transactions Hawick Archaeological Society (1904), pp. 1–8.
56 See “The Law of Lydford” in William Crossing's Folk Rhymes of Devon (Exeter, 1911), pp. 70–80 (=Devon and Cornwall Notes and Queries, Vol. vi, part iii).
57 See N & Q, 6th ser., vi (1882), 346, 524.
58 A punning allusion to the “law of the big stick.” See N & Q, 6th ser., ix (1884), 346.
59 Taylor, The Proverb, p. 92.
60 Skeat, No. 90: “Of alle mester men, mest me hongeth theues.”
61 Taylor, Index, p. 37.
62 Cf. M. H. Turk, introduction to The Legal Code of Alfred the Great, pp. 44–45.
63 Cf. Skeat, No. 259.
64 Tilley, No. 123; Taylor, Index, p. 24.
65 Examples from 1658 and 1577 respectively (Apperson, s.v. “mischief”).
66 Taylor, The Proverb, p. 93.
67 Ibid., p. 91, and Index, p. 50. Cf. the discussion of “Noth hat kein Gebot” in Eduard Osenbrüggen, Die deutschen Rechtssprichwörter (Basel, 1876), with its illustration from Reineke Vos: “Wichtig ist es, dass in jenen Wiederholungen des Hauptsatzes nicht Noth im Allgemeinen, sondern Leib- und Lebensnoth und Hungersnoth, bei der das Leben gefährdest ist, genannt sind.” (pp. 23–24).
68 Cf. Hobbes, Leviathan (1651), part ii, ch. xxvii: “If a man by the terrour of present death, be compelled to doe a fact against the Law, he is totally Excused; because no Law can oblige a man to abandon his own preservation.” See also N & Q, 8th ser., ii (1892), 246.
69 See Osenbrüggen, op. cit., pp. 4–6; Chaisemartin, op. cit., p. 486; Jente, No. 314; W. L. Rushton, Shakespeare's Legal Maxims (London, 1859), pp. 25–26; J. Duschl, Das Sprichwort bei Lydgate, No. 38. Interesting parallels are given in Martha Lenschau, Grimmelshausens Sprichwörter und Redensarten (Frankfurt-am-Main, 1924), No. 145.
70 From which we have the phrases “To play the Devil's Advocate,” “To be on the side of the angels,” and “To curse with bell, book, and candle” (See Taylor, The Proverb, p. 188).
71 Taylor, Index, p. 35.
72 Pt. ii, ch. v.
73 The Proverbs, Epigrams, and Miscellanies of John Heywood, ed. John S. Farmer (London, 1906), p. 388.
74 See examples in OED.
75 Cf. Lord Kames, Sketches of the history of man (Edinburgh, 1774), i, 98: “To encourage that art [i.e., reading] in England, the capital punishment for murder was remitted if the criminal could but read, which in law-language is termed benefit of clergy.”
76 The explanation is given thus: “It was the custom to present a cup of wine to criminals on their way to the gallows; one poor fellow who was going to execution refused to stop and drink it. He went on, and was hang'd; but just after he was turned off came a reprieve, which would have been in time to save his life, if he had not left his liquor” (County Folk-Lore: Suffolk, collected and edited by Lady Gurdon [London, 1893], p. 149). This sounds like a manufactured explanation, particularly since we have a similar proverb, “He was hanged as spilt good liquor” (County Folk-Lore: Leicestershire and Rutland, collected by C. J. Billson [London, 1895], p. 143).
77 See Traill, Social England, ii, 270, Cf. also M. Mayr, “Der Gebrauch des Lastersteines in der alten Strafrechtspflege Vorarlbergs,” Forschungen und Mitteilungen zur Geschichte Tirols und Vorarlbergs, i (1904), 75–78.
78 F. Grose, Provincial Glossary (2nd ed., 1790), s.v. “London.”
79 The earliest recorded example for “eleven points” is 1630; for “nine points,” 1809.
80 See N & Q, 1st ser., vi (1852), 425: “It has been said that nine things are requisite to the man that goes to law: 1. A good deal of money. 2. A good deal of patience. 3. A good cause. 4. A good attorney. 5. Good counsel. 6. Good evidence. 7. A good jury. 8. A good judge. 9. Good luck.” See also 5th ser., xi (1879), 447; xii (1879), 33.
81 J. A. H. Murray in N & Q, 10th ser., vii (1907), 167.
82 H. Broom, Legal maxims, ch. ix.
83 Pollock and Maitland, History of English law, i, 34.
84 S. Palmer, Moral essays on some of the most curious and significant English, Scotch and foreign proverbs (London, 1710), p. 68.
85 Cf. Titus Andronicus, i. i. 280: “'Suum cuique is our Roman justice” (Jente, No. 251).
86 Skeat, Early English proverbs, No. 85. There is also an allusion in Hector's speech in Troilus and Cressida (ii. ii. 173–174): “Nature craves All dues be rend'red to their owners.” Wahl is surely right in calling this “ein zweifellos juristisches Sprichwort.” See “Das parömiologische Sprachgut bei Shakespeare,” Shakespeare-Jahrbuch, xxiii (1888), 45n.
87 Cf. C. T. Ramage, in N & Q, 4th ser., iv (1869), 266.
88 L. De-Mauri [Ernesto Sarasino], Flores sententiarum (Milan, 1926), p. 612.
89 Pollock and Maitland, History of English law, i, 288.
90 Ibid., Cf. Graf and Dietherr, p. 204.
91 The word is not, as Grose thought, “a corruption of the German gieb alle kind, give to all the children” (Provincial glossary, 1790, s.v. “Kent”); it signifies a form of tenure characterized by the payment of gafol, or rent, as distinguished from the performance of military service on the one hand and of agricultural labor on the other (Pollock and Maitland, i, 165).
92 From the copy in the library of Canterbury Cathedral, Register B, fol. 419; quoted in Victoria History of Kent, iii (1932), 325.
93 Bracton's note book, ed. Maitland (London, 1887), iii, 501: “Et tales milites etc. ueniunt et dicunt quod … debet uxor suspensi secundum legem Kantiae habere debet dotem, et filius hereditatem, unde dicitur Anglice fader to þe bowe, þe sune to þe lowe.” The case under discussion is dated Michaelmas, a.d. 1223.
94 The proverbs connected with gavelkind are discussed by Pollock and Maitland, ii, 269–270: “Some parts of the custom enshrined ancient English proverbs, which the scribes of the fourteenth century could not understand and which make reference to institutions that must have been obsolescent in the twelfth, obsolete in the thirteenth century. We find a proverb about the wife who loses her free-bench by unchastity, another about the descent of the felon's land [this is the one discussed above], a third about the process called gavel-let. The lord after a long forbearance has had the tenement adjudged to him, because of the tenant's failure to pay his rent. The tenant has, however, a locus poenitentiae allowed him. The proverb seems to say that, if he will get back his land, he must pay the arrears of rent nine times (or perhaps eighteen times) over, and, in addition to this, must pay a wergild of five pounds. … Seemingly the proverb means in truth that the tenant will lose the land for good and all. It is one of those humorous rules of folk-law which, instead of telling a man that he cannot have what he wants, tell him that he may have it if he will perform an impossible condition.”
95 The latter alludes to the old manorial right under which the lord of the manor claimed suit and service and fealty before admitting the heir to his inheritance. “On which occasion, the party admitted to the estate … ‘fecit fidelitatem suam et solvit relevium,‘ the relief being generally a year's rent or service” (N & Q, 1st ser., ix [1854], 20). Its later meaning of course is simply that a condition of servitude is not hereditary. Cf. All's Well that Ends Well, i. iii. 25 (Jente, No. 275).
96 See N & Q, 3rd ser., xi (1867), 103.
97 Ibid., p. 163.
98 For the “historic utterance” of Commodore Tatnall, see the account in N & Q, 12th ser., iii (1917), 356–357.
99 Ibid., 10th ser., ix (1908), 349, 414, 436.
100 For German proverbs on this matter cf. Osenbrüggen, op. cit., p. 19.
101 The latter has been traced to Plautus, Truculentus, ii, ii; N & Q, 5th ser., x (1878), 318.
102 Clark (1639) and Ray (1670).
103 No. 267.
104 See Taylor, Index, p. 99.
105 Broom, Legal maxims, ch. iv.
106 The only citation in Apperson, however, is from Bohn's collection of 1855.
107 Fuller (1732), No. 4384 (Apperson, p. 515).
108 Cf. the German proverb, “Das Recht hat eine wächserne Nase”; W. Korte, Die Sprichwörter … der Deutschen, 2. Aufl. (Leipzig, 1861), No. 6208.
109 North, Lives of the Norths (1740), i, 366; Apperson, p. 451.
110 N & Q, 1st ser., vii (1853), 158.
111 Ibid., p. 439.
112 Skeat, No. 298. See also Skeat's note and illustrations, pp. 139–140.
113 See OED, s.v. “exception.”
114 N & Q, 4th ser., xi (1873), 153.
115 Attempts have been made (ibid., pp. 197, 258) to explain the saying as a misinterpretation of probare (= to test), but in the light of the examples given by the OED, the present sense of the proverb seems to have arisen from the misinterpretation of “exceptio.”
116 Grose, Provincial glossary, s.v. “Shrewsbury.”
117 DNB, xlv, 429.
118 3 Henry VI, iv. iii. 31 (Jente, No. 51). See W. E. Selin's edition of Jonson's play (New Haven, Conn., 1917), p. 95, for numerous examples of the phrase in other Elizabethan and Jacobean dramatists; Taylor, Index, p. 19.
119 The earliest example of this last is from Jonson's Every Man in his Humour (1598), iv. iii. See N & Q, 11th ser., iii (1911), 206.
120 Taylor, The Proverb, p. 192.
121 The most famous was the popular cry at the time of the Reform Bill: “The Bill, the whole Bill, and nothing but the Bill,” which seems to have been first used in the Spectator of March 12, 1831. See N & Q, 8th ser., xii (1897), 309, 432; 9th ser., i (1898), 111–112. “The Treaty, the whole Treaty, and nothing but the Treaty” is attributed to Napoleon, apropos of the Treaty of Amiens (ibid., i, 112). “The cheese, the whole cheese,” etc., is another parody of the phrase. See N & Q, 13th ser., i (1923), 232, 277.
122 L. Foulet, “ ‘Si m'aït Deus’ et l'ordre des mots,” Romania, liii (1927), 301–324.
123 “Conscience serveth for a thousand witnesses” (1539), and “A guilty conscience is a self-accuser” (1598). Cf. Richard III, v. iii. 193 (Jente, No. 76).
124 It occurs three times in Shakespeare, 2 Henry VI, iii. i. 182, 185; Titus Andronicus, iii. i. 233 (Jente, No. 207).
125 Cf. Jente, No. 213.
126 G. C. Moore Smith traces the saying to Don Quixote (N & Q, 12th ser., i [1916], 58). The passage reads: “We have no right to exact vengeance for the injuries which love does us; and mark, that love and war are the same thing; and as in war it is lawful and customary to use artifices and stratagems to conquer the enemy, so in amours, contests, and rivalries, trickeries and plots hold good which are practised to attain the desired end, so long as they are not to the injury and dishonour of the object loved”; Pt. ii, ch. xxi; trans. H. E. Watts (London, 1895), iii, 229.
