Shakespeare a Lawyer - Part Two
by William Lowes Rushton

CADE. Here's the lord of the soil come to seize me for a stray, entering his fee-simple without leave.
Henry VI, Act 4, Scene 10.

"Stray, Estrays (Extrahurae) are cattle that stray into another man's ground and not own'd by any man. In this case, if they are proclaimed on two market days in two several towns next adjoining, and the owner doth not claim them within a year and a day, they belong to the Lord of the Liberty."—Finch,177; Kitch, 80, 81; Bacon Elem, 76, 77; Wood's Institute, 2d edition, p. 213.

My woeful self, that did in freedom stand,
And was my own fee-simple, (not in part,)
What with his art in youth, and youth in art,
Threw my affections in his charmed power,
Reserved the stalk, and gave him all my flower.
A Lover's Complaint.

DROMIO OF SYRACUSE. There's no time for a man to recover his hair that grows bald by nature.
ANTIPHOLUS OF SYRACUSE. May he not do it by fine and recovery!
DRO. S. Yes, to pay a fine for a peruke, and recover the last hair of another man.
Comedy of Errors, Act 2 Scene 2.

THERSITES. Incurable boneache, and the rivaled fee-simple of the tetter.
Troilus and Cressida, Act 5 Scene 1.

BENVOLIO. An I were so apt to quarrel as thou art, any man should buy the fee-simple of my life for an hour and a quarter.
MERCUTIO. The fee-simple? O simple.
Romeo and Juliet, Act 3, Scene 3.

[13] PAROLLEES. For a quart d'écu he will sell the fee-simple of his salvation, the inheritance of it; and cut the entail from all reminders, and a perpetual succession for it perpetually.
All's Well That Ends Well, Act 4, Scene 3.

An estate in fee-tail (from tailler, to cut or limit) is that inheritance whereof one is seized to him and the heirs of his body, begotten or to be begotten.—Litt, s. 18; Wood's Institute, 2nd edition, p. 120.

An estate in remainder is the residue of an estate, in land, depending upon a particular estate, and created together with the same. A particular estate is that which is derived from a general and greater estate.-Wood's Institute, 2nd edition, p. 149.
The difference between a remainder and a reversion is, that a remainder is something limited over to a third person on the creation of an estate less than that which the grantor has; whilst a reversion is that part which remains in the grantor himself, on such a grant of a less estate.—Co. Litt, 22b.; Watk's Prin. Conv., ch. 18; Burton's Comp., pp. 28, 29, 30; Noy's Dial, p. 13.

QUEEN. 'Tis in reversion that I do possess.
Richard II, Act 2, Scene 2.

KING RICHARD. As were our England in reversion his,
And he our subject's next degree I hope.
Richard II, Act 1, Scene 4.

DOUGLAS. Where now remains a sweet reversion:
We may boldly spend upon the hope of what
Is to come in:
A comfort of retirement lives in this.
First Part Henry IV, Act 2 Scene 2.

TROILUS. No perfect in reversion shall have a praise in present; we will not name desert, before his birth, and, being born, his addition shall be humble.
Troilus and Cressida, Act 3, Scene 3.

[14] An estate in reversion (from reverto, to return) is where any estate is derived, by grant or otherwise, out of a larger one, leaving in the original owner an ulterior estate immediately expectant on that which is so derived; the latter interest is called the particular estate, (that is only a small part or particula of the original one), and the ulterior interest the reversion.

STEWARD. One who I will best into clamorous whining, if thou deny'st the least syllable of thy addition.
King Lear, Act 2, Scene 2.

ALEXANDER. This man, lady, hath robbed many beasts of their particular additions.
Troilus and Cressida, Act 1, Scene 2.

ULYSSES. Bull-bearing Milo his addition yield,
To sinewy Ajax.
Troilus and Cressida, Act 2, Scene 3.

AJAX. A great addition earned in thy death.
Troilus and Cressida, Act 4, Scene 5.

LEAR. Only we still retain
The name and all the additions to a king.

The description of an individual in a legal document, as esquire, gentleman, yeoman, &c., is called his addition.

CADE. Thou hast appointed justices of the peace, to call poor men before them about matters they were not able to answer. Moreover, thou hast put them in prison; and because they could not read, thou hast hanged them; when, indeed, only for that cause they have been most worthy to live.
Second Part Henry VI, Act 4 Scene 7.

In the days of Jack Cade few could read, except those who were actually in orders, or educated for that purpose:

[SMITH. The Clerk of Chatham; he can write and read, and cast accompt. [15]
CADE. O monstrous!
SMITH. We took him setting of boys' copies.
CADE. Here's a villain!
SMITH. H'as a book in his pocket, with red letters in't.
CADE. Nay, then, he is a conjurer.
DICK. Nay, he can make obligations, and write court-hand.
CADE. Dost thou use to write thy name? Or hast thou a mark to thyself, like an honest, plain dealing man?
CLERK. Sir, I thank God, I have been so well brought up that I can write my name.
Second Part Henry VI, Act 4 Scene 2.]

so that if a person was arraigned before a temporal judge for any crime (the punishment whereof was death) he might pray his clergy; that was, to have a Latin Bible in a black Gothic character delivered to him; and if he could read a passage where the judge appointed, which was generally in the Psalms, the ordinary, or his deputy, who stood near, said, legit ut clericus, that is, he could read like a clerk or scholar, and the criminal was acquitted as being a man of learning, who might therefore be useful to the public; if, however, he could not read, he suffered death. This privilege was granted in all offences, except high treason and sacrilege, until after the year 1530; and it was carried to such an extent, that if a criminal was condemned at one assize, and was reprieved to the subsequent assize, because he could not read, he might again claim this benefit, either at that time, or even under the gallow's tree, and if he could then read, he was pardoned, of which there was an instance in the reign of Queen Elizabeth.

Although this privilege was originally enjoyed only by those who had the habitum et tonsuram clericalem, who wore the clerical habit and were trimmed with the clerical [16] tonsure; yet the ability to read being formerly a mark of great erudition, every one thus qualified, in course of time, was considered a clerk, or clericus, and allowed the benefit of clergy, although not in holy order. So that, ultimately, as many laymen as clergy men enjoyed this privilege, which excited the jealousy of the clergy, in whose favour, therefore, a further distinction was made, by stat. 4th Henry VII, chap. 13, in the year 1487, "Whereas upon trust of the privilege of the church, divers persons lettered have been the more bold to commit murder, rape, robbery, theft, and all other mischievious deeds, because they have been continually admitted to the benefit of the clergy as oft as they did offend in any of the premises; it is enacted, ordained, and established, by the authority of this present parliament, that every person, not being within orders, which once hath been admitted to the benefit of his clergy, eftsoons arraigned of any such offence, be not admitted to have the benefit or privilege of his clergy; and that every person so convicted for murder, to be marked with an M upon the braun of the left thumb; and if he be for any other felony, the same person to be marked with a T in the same place of the thumb, and those marks to be made by the gaoler openly in the court before the judge, before that such person be delivered to the ordinary."

DICK. But, methinks, he should stand in fear of fire, being burnt i' the hand for stealing of sheep.
Second Part Henry VI, Act 4 Scene 2.

Hence, probably, the origin of the request made even at the present time, when a prisoner is arraigned, "Prisoner at the bar, hold up your hand," in order, if he was a [17] layman, that it might thereby be ascertained whether he had been admitted to this privilege before. The benefit of clergy first legally recognized by stat. 3rd Edward I, A.D. 1274, modified in 1530, in the time of Henry VIII, was wholly repealed by the 7th and 8th Geo. IV, June, 1827.

MORTIMER. And our indentures tripartite are drawn,
Which being sealed interchangeably…
First Part Henry IV, Act 3, Scene 1.

A deed indented consists of two or more parts: for there are deeds Bipartate, of two parts; Tripartate, of three; Quadrupartate, of four; Quinquepartate, of five; and Sextipartate, of six, &c. In which respective deeds it is expressed, that the parties thereunto have interchangeably set their hands and seals.

PANDARUS. Words pay no debts, giver her deeds; but she'll bereave you of the deeds, too, if she call your activity in question. What, billing again? Here's IN WITNESS WHEREOF THE PARTIES INTERCHANGEABLY.
Troilus and Cressidus, Avt 3, Scene 1.

An indenture is so called because each part used formerly to be cut or indented in acute angles (instar dentium, or like the teeth of a saw) on the top, or side, to tally or correspond with the other,?(Vide Co. Litt., 47 b; Litt., s. 371.) The history of the practice of indenting is given in Co. Litt., by Butler, 269, A.N. (1.) Formerly, when deeds were more concise than at present, it was usual to write both parts on the same piece of parchment, with same word or letters of the alphabet written between them, through which the parchment was cut, either in a straight or indented line, so as to leave half the word on one part and half on the other. But for a long time past the practice [18] of cutting through any letters has, in all other instances, been disused; and even of indenting saw-wise, the modern method being to cut the top of the parchment in a waving line. Neither this, however, nor any other method of indenting is in general necessary to the legal validity of the instrument.

AUSTRIA. Upon thy cheek I lay this zealous kiss,
As seal to this indenture of my love.
King John, Act 2, Scene 1.

Let him but copy what in you is writ,
Not making worse what nature made so clear,
And such a counterpart shall fame his wit,
Making his style admired everywhere.
Sonnet LXXXIV

When the several parts of an indenture are interchangeably executed by the several parties, that part or copy which is executed by the grantor is usually called the original, and the rest are counterparts; though, of late, it is most frequent for all the parties to execute every part, which renders them all originals.

ROSALIND. With bills on their necks, Be it known unto all men by these presents.
As You Like It, Act 1, Scene 2.

The bills Rosalind mentions are deeds poll, which commonly being Know all men by these presents, or To all whom these presents shall come, and are made by one partly only, and not indented, but polled or shaved quite even, and therefore called a deed poll, or single deed.—Mirror, c. 2, s. 27; Litt., s. 371, 372; Gardiner v. Lachlan.

SLENDER. A gentleman born master parson, who writes himself armigero; in a bill, warrant, quittance, or obligation, armigero.

An obligation, according to our common law, is a bond containing a penalty, with a condition for payment [19] of money; or to do or suffer some act or thing, c. If it is without condition, it is called a bill, which is sometimes with a penalty, and then it is called a penal bill, or simple bond. (1 Inst., 172a; 3 Cro., 515; 2 Roll, abr., 146; wood's Institute, 2nd ed., p. 288.)

An obligation, or bond, is a deed whereby the obligor obliges himself, his heirs, executors, or administrators, to pay a certain sum of money to another at a day appointed. If this be all, the bond is a single one, simplex obligatio.

SHYLOCK. Go with me to a notary, seal me there
Your single bond.

But a condition is generally added, that if the obligor does some particular act, the obligation shall be void, as performance of covenants, or repayment of a principal sum borrowed of the obligee, with interest, which sum is usually one-half of the penal sum named in the bond.

Say for non-payment that the debt should double.
Venus and Adonis.

PORTIA. What sum owed the Jew?
BASSANIO. For me, three thousand ducats.
PORTIA. What, no more?
Pay him six thousand and deface the bond.
Merchant of Venice, Act 3, Scene 4.

Bonds, with conditions of this kind annexed, have been long in use, and in former times on a conditional bond becoming forfeited for non-payment of the money borrowed, the whole penalty, usually double the principal sum lent by the obligee, was recoverable. (Litt., S. 40.) So Macbeth says:

But yet I'll make assurance double sure,
And take a bond of fate.
Act 4, Scene 1.

[20] Referring not to a single, but to a conditional bond, under or by virtue of which, when forfeited, double the principal sum was recoverable.

Your assent is somewhat finer than you could purchase in so removed a dwelling.
As You Like It, Act 3, Scene.

OCTAVIUS CAESAR. A man, who is the abstract of all faults,
That all men follow.
LEPIDUS. I must not think there are
Evils enough to darken all his goodness;
His faults, in him , seem as the spots of heaven,
More fiery by night's blackness?hereditary
Rather than purchased.
Antony and Cleopatra, Act 1, Scene 4.

Purchase (perquisitio) has in law a meaning more extended than its ordinary significance. It is possession to which a man cometh not by title of descent. (Litt., s. 12.) It is contradistinguished from acquisition by right of blood, and includes every other method of coming to an estate whatever, than that by inheritance, wherein the title is vested in a person by single operation of the law. (1 Inst. 18.) Accordingly, a devisee under a will is now a purchaser in law. In these passages the word purchase is used by Shakespeare in its strict legal sense, in contradistinction to an acquisition by descent, although purchase was, in Shakespeare's day, sometimes used to signify robbery, and also the thing stolen:

They will steal anything and call it purchase.
Twelfth Night, Act 4, Scene 1.

PETRUCHIO. What dower shall I have with her to wife?
BAPTISTA. After my death, the one-half of my lands;
And, in possession, twenty thousand crowns. [21]
PETRUCHIO. And, for the dowry, I'll assure her of
Her widowhood—be it that she survive me—
In all my lands and leases whatsoever;
Let specialties be, therefore, drawn between us,
That covenants may be kept on either hand.
Taming the Shrew, Act 2, Scene 1.

"Tenant in dower is where a man is seized of lands or tenements in fee-simple, fee-tail general, or as heir in special tail, and taketh a wife, and dieth; the wife, after the decease of her husband, shall be endowed of the third part of such lands and tenements as were her husband's at any time during the coverture, to have and to hold to the same wife in severalty, by metes and bounds, for term of her life, whether she hath issue by her husband or no, and of what age soever the wife be, so as she be past the age of nine years at the time of the death of her husband, otherwise she shall not be endowed." (Litt., s. 36.) "And note, that by the common law the wife shall have for her dower but the third part of the tenements which were her husband's during the espousals; but, by the custom of some country, she shall have the half, and, by the custom in some town or borough, she shall have the whole; and in all these cases she shall be called tenant in dower." (Litt., s. 37.) Widowhood, a term only used now as descriptive of the state of being a widow, signified the estate settled on a widow. Petruchio says he will assure Katherina of a widow's portion in all his "lands and leases," and not "bar dower" by fine and recovery. "Also, there be two other kinds of dower, viz., dower called dowment at the church door, and dower called dowment by the father's assent."—Litt., s. 38.

BION. His daughter is to be brought by you to supper.
LUCEBTIO. And then? [22]
BION. The old priest at Saint Luke's Church is at your command at all hours.
LUCENTIO. And what of all this?
BION. I cannot tell, except they are busied about conterfeit assurance. Take your assurance of her, cum privilegio ad imprimendum solum, to the church; take the priest, clerk, and some sufficient honest witnesses.
Taming of the Shrew, Act 4, Scene 4.

Dowment at the church door (dower ad ostium ecclesiae) is where a man of full age seized in fee-simply who shall be married to a woman, and when he cometh to the church door to be married, there, after affiance and troth plighted between them, he endoweth the woman of his whole land, or of the half, or other lesser part thereof, there openly doth declare the quantity and the certainty of the land which she shall have for her dower. In this case the wife, after the death of which her husband, may enter into the said quantity of land of which her husband endowed her without other assignment of any.—Litt. s. 39.

BAPTISTIA. I must confess your offer is the best;
And let your father make her the assurance,
She is your own; else you must pardon me:
If you should die before him, where's her dower?
Taming of the Shrew, Act 2, Scene 1.

Baptista seems to refer to dowment by the father's assent (dower ex assensu patis) which is where the father is seized of tenements in fee, and his son and heir apparent, when he is married, endoweth his wife at the monastery or church door, of parcel of his father's lands or tenements with the assent of his father, and assigns the quantity and parcels. In this case, after the death of the son, the wife shall enter into the same parcel without the assignment of any—Litt. s. 40.