Shakespeare a Lawyer - Three
by William Lowes Rushton

[23] O, brother Montague, give me thy hand; this my daughter's jointure, for no more can I demand.
Romeo and Juliet.

A jointure is thus defined by Sir Edward Coke: "A competent livelihood of freehold for the wife, of lands and tenements, to take effect presently, in possession or profit, after the decease of the husband, for the life of the wife at least." This description corresponds with the purview of the Statute of Uses, 27th Henry VIII, c. 10.

POSTUMUS. Let there be covenants drawn between us.
SACHIMO. Your hand; a covenant. We will have these things set down by lawful counsel, and straight away for Britain, lest the bargain catch cold, and starve; I will fetch my gold, and have our two wagers recorded.
Cymbeline, Act 1, Scene 5.

The covenants Shakespeare refers to in these passages are, according to the quaint description of Thomas Wood, (Institute of the Laws of England, 2nd ed., p. 228) "agreements made by the deed in writing, by the consent of two or more, to do, or not to do," and not the covenants (conventiones) which are clauses of agreement contained in a deed.

BOLINGBROKE. My heart this covenant makes, my hand thus seals it.
Richard II, Act 2, Scene 3.

Covenants by deed poll are as effectual as those made by deed indented, if the party hath the deed to show. (1 Roll. Abr., 517; Wood's Inst., 2nd ed., p. 230.) Bolingbroke seems to refer to a covenant by deed poll.

POSTHUMUS. I embrace this condition; let us have articles betwixt us.
Cymbeline, Act 1, Scene 5.

There may be articles of agreement, or covenants, framed according to the case, by mutual and reciprocal covenants, only to be performed by the parties, and this is good, if in writing and sealed and delivered by the [24] parties, without the other formal parts of the deed. ?Wood's Inst., 2nd ed., p. 230.

BUCKINGHAM. The law I bear no malice for my death,
It hath done, upon the premises, but justice.
Henry VIII, Act 2, Scene 1.

Premises in law signify that part of beginning of a deed the office of which is to express the grantor, and grantee, and the land or thing granted or conveyed: and also the houses, lands, or places, c., mentioned before.

PROSPERO. Now the condition.
This King of Naples, being an enemy
To me inveterate, hearkens to my brother's suit;
Which was that he, in lieu o' the premises,
Of homage, and I know not how much tribute,
Should presently extirpate me and mine
Out of the kingdom.
Tempest, Act 1, Scene 2.

The premises of homage, the circumstances of homage mentioned before.

"Homage is the most honourable service, and most humble service of reverence, that a frank tenant may do to his lord, he shall be ungirt, and his head uncovered, and his lord shall sit, and the tenant shall kneel before him on both his knees, and hold his hands jointly together between the hands of his lord, and shall say thus: I become your man from this day forward, and unto you shall be true and faithful, and bear to you faith for the tenements that I claim to hold of you, saving the faith that I owe unto our Sovereign Lord the King; and then the lord, so sitting, shall kiss him."—Litt. S. 85.

VALENTINE. This is the gentleman I told your ladyship
Had come along with me, but that his mistress
Did hold his eyes lock'd in her crystal looks. [25]
SILVIA. Belike, that now she hath enfranchis'd them
Upon some other pawn the fealty.
Two Gentleman of Verona, Act 2, Scene 5.

"Fealty is the same that fidelitas is in Latin. And when a freeholder doth fealty to his lord, he shall hold his right hand upon a book, and shall say thus: Know ye this, my lord, that I shall be faithful and true unto you, and faith to you shall bear for the lands which I claim to hold of you, and that I shall lawfully do to you the customs and services which I ought to do, at the terms assigned, so help me God and his saints; and he shall kiss the book. But he shall not kneel when he maketh fealty, nor shall he make such humble reverence as is aforesaid in homage."—Litt. s. 91.

CADE. Men shall hold of me in capite.
Henry VI, Act IV, Scene 7.

When the tenure was of the Sovereign, immediately it was said to be in capite, or in chief.

COUNTESS. In delivering my son from me, I bury a second husband.
BERTRAM. And I, in going, madam, weep o'er my father's death anew; but I must attend his Majesty's command, to whom I am now in ward, evermore in subjection.
All's Well That End's Well, Act 1, Scene 1.

Tenure by homage, fealty, and escuage, is to hold by knight service, and it draweth to it ward, marriage, and relief. "For when such tenant dieth, and his heir male be within the age of twenty-one years, the lord shall have the land holden of him until the age of the heir of twenty-one years; the which is called full age, because such heir, by intendement for the law, is not able to do such knight's service before his age of twenty-one years. And, also, if such heir be not married at the time of the death of his [26] ancestor, then the lord shall have the wardship and marriage of him."—Litt. s. 103. Wardship was abolished by the 12th Char. II, cap. 24.

PISANIO. O! damn'd paper!
Art thou a feodary for this act, and look'st
So virgin like without?
Cymbeline, Act 2, Scene 2.

Feodary was ancient officer in the Court of Wards, (which was not instituted until 32nd Henry VIII, cap. 36, 33rd Henry VIII, cap.22) who was appointed by the master of that court, to be present with the escheator in every county at the finding of offices of lands; and to give evidence for the crown as well as for the value of the tenure; and his office was also to survey the lands of the ward after the office found, and to rate the value thereof into court; and likewise to assign dower to the king's widow, and to receive the rents of wards lands within his circuit, for which he was answerable to the receiver of the court. It seems to be used by Shakespeare in this passage in the sense of confederate, or associate.

YORK. Seek you to seize and gripe into your hands
The royalties and rights of banish'd Hereford?
Is not Gaunt dead? And doth not Hereford live?
Was not Gaunt just? And is not Harry true?
Did not the one deserve to have an heir?
Is not his heir a well-deserving son?
Take Hereford's rights away, and take from time
His charters and his customary rights;
Let not to-morrow, then, ensue to-day;
Be not thyself, for how art thou a king.
But by fair sequence and succession?
Now, afore God, (God forbid, I say true),
If you do wrongfully seize Hereford's rights,
[27] Call in the letters patent that he hath
By his attornies-general to sue
His livery, and deny his offer'd homage,
You lose a thousand well-disposed hearts,
And prick my tender patience to those thoughts
Which honour and allegiance cannot think.
KING RICHARD. Think what you will, we seize into our hands
His plate, his goods, his money, and his lands.
King Richard II, Act 2, Scene 1.

When the male heir arrived to the age of twenty-one, or the heir female to that of sixteen, they might sue out their livery, or ousterlemain, (Co. Litt. 77A.) that is the delivery of their hands out of their guardian's hands. For this they were obliged to pay a fine, namely, half-a-year's profits of the land. An attorney is either general or special. A general attorney is he that is appointed by a general authority to manage all affairs or suits, as the Attorney-General of the king, who is usually one of the most learned of barristers. He and the Solicitor-General are made by letters patent, Quam diu se bene gesserint.—(Terms of the Law, v. Attorney, 4 Inst. 117. Vent. 1. Wood's Inst., 2nd edition, p. 449.) Bolingbroke had appointed attornies to execute this office for him, if his father died during his banishment.

KING RICHARD. Be the attorney of my love to her;
Plead what I will be, not what I have been.
Richard III, Act 4, Scene 4.

STANLEY. I, by attorney, bless thee from thy mother.
Richard III, Act 5, Scene 3.

DUKE. Not changing heart with habit, I am still
Attorney'd at your service.
Measure for Measure, Act 5, Scene 1.

CLOWN. As fit as ten groats for the hand of an attorney.
All's Well That Ends Well, Act 2, Scene 3.

[28] Why should calamity be full of words?
Windy attorneys to their clients' woes.
Richard III

But when the heart's attorney once is mute,
The client breaks, as desperate in his suit.
Venus and Adonis.

The heart's attorney, the heart's tongue.

DESDEMONA. For thy solicitor shall rather die
Than give thy cause away.
Othello, Act 3, Scene 3.

HOTSPUR. To sue his livery and beg his peace.
First Part, Henry IV, Act 4, Scene 3.

BOLINGBROKE. I am denied to sue my livery here,
And yet my letters patent give me leave:
My father's goods are all distrain'd and sold,
And these, and all, are all amiss employ'd.
What would you have me do? I am a subject,
And challenge law. Attorneys are denied me,
And, therefore, personally I lay my claim
To my inheritance of free descent.
King Richard II, Act 2, Scene 3.

Royal grants, whether of lands, honours, liberties, franchises, or aught besides, are contained in charters, or letters patent, that is, open letters, literae patentes; so called because they are no sealed up, but exposed to open view, with the great seal pendant at the bottom, and are usually directed or addressed by the sovereign to all subjects of the realm. And therein they differ from certain other letters of the sovereign, sealed also with his great seal, but directed to particular persons, and for particular purposes; which, therefore, not being proper for public inspection, are closed up and sealed on the outside, and are thereupon called writs close, literae clauses, and are recorded in the close rolls, in [29] the same manner as the others in the patent rolls.—Black Com. As to exemplification of letters patent see 3d and 4th Edw. VI, c. 4; 13th Elizabeth, c. 6.

Set thy seal manual on my wax red lips.
Venus and Adonis.

Grants or letters patent must pass by bill, which is prepared by the Attorney and Solicitor General, in consequence of a warrant from the Crown, and is then signed, that is, superscribed at the top with the sovereign's own sign manual, and sealed with the privy signet, which is always in the custody of the principal Secretary of State; and then sometimes it immediately passes under the great seal, in which case the patent is subscribed in these words, "per ipsam reginam," by the Queen herself.—2 Rep. 17 b. Black Com.

CADE. Is not this a lamentable thing, that of the skin of the innocent lamb should be made parchment? That parchment, being scribbled o'er, should undo a man? Some say, the bee stings; but I say, the bee's wax, for I did but seal once to a thing, and I was never mine own man since.
Second Part, Henry VI, Act 4, Scene 2.

HAMLET. How in my words soever she be shent,
To give them seals never, my soul, consent.
Act 2, Scene 2.

What wax so frozen but dissolves with tempering,
And yields at last to every light impression.
Venus and Adonis.

The soft wax attached to a legal instrument upon which the seal was impressed, required to be tempered before the impression was made upon it, so Falstaff says: "I have him already tempering between my finger and my thumb, and shortly will I seal with him."

KING. Now must your conscience my acquittance seal.
Hamlet, Act 4, Scene 7.

[30] IMOGEN. Good wax, thy leave;
Blest the bees that make these locks of counsel;
Lovers and men in dangerous bonds, pray not alike;
Though forfeiters you cast in prison, yet
You clasp young Cupid's tables.
Cymbeline, Act 3, Scene 2.

The forfeitors had sealed to dangerous bonds; and in those times the seal was as binding as the signature, if not more so.

ANTONY. Seal then and all is done.
Antony and Cleopatra, Act 4, Scene 12.

The neglect of signing, and resting only upon the authenticity of seals, remained very long among us, for it was held in all our books that sealing alone was sufficient to authenticate a deed; and so the common form of attestating deeds, "sealed and delivered," continues to this day.

But my kisses being again
SEALS of love but sealed in vain.            Song.
HAMLET. A combination and a form, indeed,
Where every god did seem to set his seal,
To give the world assurance of a man.
Act 3, Scene 4.

They seemed to give the world assurance of a man, in the most solemn form, that was, by setting their seals.

Poor soul, the center of my sinful earth,
Fool'd by those rebel powers that thee array,
Why dost thou pine within, and suffer dearth,
Painting thy outward walls so costly gay?
Why so large cost, having so short a lease,
Dost thou upon thy fading mansion spend?
Shall worms, inheritors of this excess,
Eat up thy charge? Is this the body's end?
Then, soul, live thou upon thy servant's loss,
[31] And let that pine to aggravate thy store
But terms divine, in selling hours of dross;
Within be fed, without be rich no more;
So shalt thou feed on death, that feeds on men,
And, death, once dead, there's no more dying then.
Sonnet CXLVI

A lease (from laisser, dimittere, to part with) is a demise or letting of lands, tenements, or herediments unto another for term of life, or years, or at will, upon a reserved rent, but always for a less time than the lessor hath in the premises; for, if it be for the whole interest, it is more properly an assignment than a lease.

MACBETH. Rebellious head, rise never, till the wood
Of Birnam rise, and our high-placed Macbeth
Shall live the lease of nature, pay his breath
To time and mortal custom.
Act 4, Scene 1.

"The lease of nature," lease for term of life. Every one which hath an estate in any lands or tenements for term of his own or another man's life (pur untre vie) is called tenant of freehold, and none other of a lesser estate can have a freehold; but they of a greater estate have a freehold, for he in fee-simple hath a freehold, and tenant in tail hath a freehold, &c.—Litt. s. 57.

CADE. These five days have I hid me in these woods, and durst not peep out, for all the country is lay'd for me; but now am I so hungry that, if I might have a lease of my life for a thousand years, I could stay no longer.

Tenant for term of years is where a man letteth lands or tenements to another for term of certain years after the number of years that is accorded between the lessor and the lessee. (Litt., s. 58.) Therefore, an estate of freehold, liberum tenementum, is an interest in lands, or other [32] property, held by a free tenure for the life of the tenant, or that of some other person, for some uncertain term; (Vide Britt., c. 32; St. Germyn, D. & S. b. 3, d. 22) but an estate for a thousand years, being a certain term, is not a freehold, but only a chattel, and considered part of the personal estate.—Vide Co. Litt., 45, 46.

GHOST. I am thy father's spirit;
Doom'd for a certain term to walk the night;
And, for the day, confined to fast in fires,
Till the foul crimes, done in my days of nature,
Are burn'd and purg'd away.

Not mine own fears, nor the prophetic soul
Of the wide world dreaming on things to come,
Can yet the lease of my true love control,
Suppos'd as forfeit to a confin'd doom.
Sonnet CVII

From the explanations the reader may perceive that Shakespeare does not confound a freehold estate with an estate less than freehold: for Cade does not mean to say "if I might have a lease for life (which is an uncertain term, or freehold estate), for a term of a thousand years, (which is a certain term or estate less than freehold), but "if I might have a lease of my life, as I might have a lease of a tenement for a thousand years, I could stay no longer." But a lease for twenty or more years, if J. S. shall so long live, or if he should so long continue parson, is good: for there is a certain period fixed, beyond which it cannot last; though it may determine sooner, on the death of J. S. or his ceasing to be parson.—Co. Litt., 45.

THURIO. What says she to my birth?
PROTEUS. That you are well deriv'd.
JULIA. True, from a gentleman to a fool.
THURIO. Considers she my possessions?
[33] PROTEUS. O, ay, and pitites them.
THURIO. Wherefore?
JULIA. That such an ass should own them.
PROTEUS. That they are out by lease.
Two Gentlemen of Verona, Act 5, Scene 2.

By his possessions Thurio means his hereditaments. Proteus alludes to his faculties, which he says are out by lease.

It fears not policy, that heretic,
Which works on leases of short-number'd hours.
Sonnet CXXV.

Have I not seen dwellers on form and favour
Lose all and all by paying too much rent.

PRINCE HENRY. Five years! By 'r lady, a long lease for the clinking of pewter. But, Francis, darest thou be so valiant as to play the coward with thy indenture, and to show it a fair pair of heels, and run from it.
First Part, Henry IV, Act 2, Scene 4.

To what state, what dignity, what honour,
Canst thou demise to any child of mine?
Richard III.

The usual words of operation in a lease are ("demisi concessi et ad firmam tradidi"), "demise, grant, and to farm let."—Co. Litt., 45 b.; Wood's Inst., 2nd ed., p. 264.

1. GENTLEMAN. I'll tell you in a little. The great duke
Came to the bar; where, to his accusations,
He pleaded still, not guilty, and alleged
Many sharp reasons to defeat the law.
The king's attorney, on the contrary,
Urg'd on the examinations, proofs, confessions
Of divers witnesses; which the duke desir'd
To him brought, viva voce, to his face.
Henry VIII, Act 2, Scene 1.