LAND LAW AND OTHER BRANCHES OF PRIVATE LAW

The main principles of the law relating to land were much the same in Shakespeare's time as they are now, with the following exceptions: (1) Military tenures still existed; but actual military service had been, practically in all cases, commuted for a money payment called 'escuage '. Nevertheless the other burdensome incidents of the tenure, such as wardship, relief, &c., remained, and this had made them hateful. They were, however, not abolished until 1646. (2) The various ingenious purposes to which the Statute of Uses and the Statute of Wills of Henry VIII could be perverted had not yet been discovered; and (as a corollary) the modern system of strict settlement had not been invented. (3) The methods of conveying land, and of barring entails, dower, &c., were entirely different from what they are now, and were extremely quaint.

The first of these subjects was too technical for notice either by Shakespeare or other lay writers of that age. But the third is frequently referred to in popular Elizabethan literature. The common method of conveying land to a purchaser in fee simple was by 'feoffment with livery of seisin'. This is the most ancient form of assurance known to the law, and similar methods are still practiced in communities whose civilization has not progressed so far as ours. The 'livery', i. e. delivery of possession, was either 'livery in deed', i.e. actual delivery, or 'livery in law'. In the case of livery in deed the owner (feoffor) and the donee or purchaser (the feoffee) met on the land itself, and the feoffor there and then delivered possession of it to the feoffee, at the same time stating by apt words that he enfeoffed him for whatever estate (i. e. interest) he was intended to take, e.g. if the fee simple were to be taken, the words would be, 'I deliver these lands to you and your heirs for ever'. No writing was at that date required for a valid feoffment to persons other than corporations, but in practice it was not unusual to have a 'charter of feoffment' recording the transaction and the nature of the estate conferred. Very generally, too, some symbolical act was added, such as the delivery of a key, a twig, or a clod of earth.

'Livery in law' took place in sight of but not on the land, and was not complete unless and until the feoffee, in the joint lives of himself and the feoffor, actually took possession or attempted to do so but was stopped by force.

Feoffments gradually died out owing to the invention after Shakespeare's day of the lease and release operating under the Statute of Uses; but instances of feoffments were not infrequent in the early part of last century.

References to this ancient method of conveying land are to be found in Elizabethan literature:

Keep your possession, you have the door by th' ring;
That's livery and seisin in England.
(Webster, Devil's Law Case, I. ii)

Shakespeare himself, however, never mentions the subject, although he was not only a considerable purchaser of real estate, but seems to have been involved in litigation in relation to it. In 1597 he purchased 'New Place', Stratford-on-Avon, from a collateral ancestor of the present writer (one William Underhill), the property consisting of 'one messuage two barns and two gardens with their appurtenances'; but apparently owing to the sudden death of the vendor by poison in July 1597, the conveyance was not completed until 1602, when Shakespeare was enfeoffed by Hercules Underhill, the heir of William, on attaining his majority.

Shakespeare subsequently purchased other lands in the neighbourhood, including 107 acres of arable land in 1602,. and 20 acres more in 1610. He also became a copyhold tenant of the Manor of Rowington in 1602. Last of all, in 1613 he bought a house and shops in Blackfriars.

With regard to the barring of estates tail and the prospective dower of married women, the method was very curious. For about two hundred years after the passing of the celebrated statute de donis conditionalibus (13 Edw. I, c. 1), estates tail (i.e. estates descendible only to the heirs or heirs male of the body of the original feoffee) were incapable of alienation either by gift or sale. But in the reign of Edward IV, an old device known as a Common Recovery (which had at one time been used to enable ecclesiastical corporations to acquire lands, notwithstanding the laws against mortmain) was applied to defeat the heirs in tail and persons claiming in remainder (i.e. in default of heirs of the body). This common recovery was a collusive action commenced by a friendly plaintiff (called the demandant) against the person in possession (tenant in tail, or sometimes tenant for life in possession and tenant in tail in remainder), asserting that the defendant claimed through some third person who had wrongfully deprived the demandant of the possession. The defendant pleaded that he derived his title from the crier of the Court who had warranted it, and demanded that the crier should be 'vouched to warranty', i.e. called upon to defend the action. The crier (the 'common vouchee') at once admitted the warranty, and craved leave to 'imparl' (i.e. to negotiate outside the Court). He then failed to return until judgement was given that the demandant should recover the lands and that the common vouchee should provide other lands for the defendant of equal value, which of course he was quite incapable of doing. Thus, by this fictitious judgement, the plaintiff acquired an estate in fee simple, and forthwith conveyed it to the defendant or his nominee, so defeating not only the entail, but all remainders to take effect in the event of failure of heirs of the body. Sometimes single vouching was sufficient; in other cases (for technical reasons) a double vouching was necessary for a complete bar. In all cases the whole proceeding was a solemn and costly farce. It seems scarcely credible that this grotesque fooling should have been enacted many times every year from the time of Edward IV until that of William IV, when it was abolished in favour of a simple enrolled deed.

A 'fine' was somewhat similar to a recovery, but the action was stopped before judgement by a collusive compromise. It was used mainly to enable married women to join with their husbands in selling the fee-simple property of either. Except by means of a fine, a husband could not sell his own property free from his wife's contingent right to dower; and she, on the other hand, could not sell her own property at all, being under coverture.

The impossibility of selling freehold land free from the widow's right to dower without going to the expense of a fine, led to various devices intended to prevent the right ever attaching. In later times this barring of dower was effected by an elaborate and highly technical system of uses and powers operating under the Statute of Uses, and this method lasted down to the reign of William IV. But in Shakespeare's time the usual method was for a purchaser of land to take the conveyance not to himself alone, but to himself and several friends (as trustees for him) in joint tenancy, dower only attaching to lands held by one person solely. When one of these joint tenants died, his place was filled up by another person, and so the property never became vested in a sole owner. This plan was adopted when Shakespeare purchased his Blackfriars property. Sir Sidney Lee conjectures that this was done for the purpose of depriving Shakespeare's wife of dower, but to a conveyancer it is clear that it was necessary in order to enable him to mortgage the property (as he did the next day) without the expense and delay of a fine.

Fines and recoveries seem to have specially appealed to Shakespeare, who doubtless witnessed the process at Westminster Hall. Thus in the grave scene, Hamlet says:

[*What 'statutes and recognizances' had to do with the buying of land is not evident to a lawyer, and may suggest that Shakespeare's knowledge of the law of property was neither accurate nor extensive.] [E. REFUTED]

And again in The Merry Wives of Windsor (IV. ii. 227-30):

So in The Comedy of Errors (II. ii. 74-9):

The cutting off of entails was considered a desirable thing by Edward IV and his judges, otherwise the audacious common recovery could scarcely have been invented; but the question of fettering the free alienation of land has always been a burning one. A member of Lincoln's Inn in 1641 gravely treated the question as depending on the laws of God, and declared that to abstain from disentailing an estate in tail male was contrary to those laws, as the result might be to cut out daughters for the benefit of remote cousins, issue of the first tenant in tail; 'oneley', he added sententiously, 'I must note by the way, that such as avoyd and cut off these estates to none other purpose but to enlarge their wanton expences, and to give them more scope to live licentiously, as they unjustly spoile their heires of their due inheritances, so shall not this my defence extend unto them; since my purpose onely is to reduce estates taile to the most proper conveyance of the Common Law'; and he concluded, 'I could never (after long observation) find any family continue in the heires male three descents after an entaile made and continued to the heires male, by which I ghesse they are not watered with heavenly blessings'.

Mortgages were on a very different footing from what they are now. Shakespeare never mentions them, although, as above mentioned, he mortgaged the house which he bought in Blackfriars the day after the purchase.

Deeds (which were then usually called Specialties)

were for the most part written in Latin; in the case of bonds, the actual bond was sometimes in Latin, and the condition on which it was to become void in English. Deeds between two or more parties were indented, i.e. after being written in duplicate or triplicate on one skin of parchment, the parts were severed by being cut in a wavy or indented line so as to guard against forgery when the parts were fitted together, whence the technical word 'indenture'. As Hamlet says:

Marriage required no religious ceremony for its validity, although the omission of it was an offence. The only essential was verba de praesenti (as distinguished from a promise to marry at a future date), the man and woman saying to each other, 'I receive you as mine'. No ceremony, no priest, no physical consummation was required; so that after such a pre-contract (as it was called) neither party could marry any other person. If either of them purported to do so, the second marriage was bigamous and voidable, and the issue of it bastards. Shakespeare clearly refers to this in Measure for Measure (I. ii. 157-59), where Claudio insists, after his condemnation to death for cohabitation with Juliet without the previous sanction of the Church,

And again, where the Duke, urging Mariana to simulate Isabella and accept the embraces of Angelo, says:

In short, Angelo's condemnation of Claudio for alleged fornication was, and was intended by Shakespeare to be, absolutely tyrannical and illegal.

It was quite common form in Shakespeare's day for a bridegroom to give a bond that no pre-contract existed. Shakespeare himself gave one on the occasion of his marriage. [Halliwell-Phillipps, 7th ed. (1887), vol. ii, p. 55.] Curiously enough, too, Lord Coke married his second wife, Lady Hatton, in a private room, as she refused to go to church with so old a man. For this offence he was prosecuted, but got off by pleading 'ignorance of the law', a plea which must have given great joy in legal circles. But no one suggested that the marriage was invalid.

The capacity of making a will of lands was, in the time of Shakespeare, as ample as it is now; except that where lands were held by military tenure the power was confined to two-thirds of them. It would seem, however, that with regard to personal property the ancient law restricted the owner to the disposal of one-third only if he left wife and child, or one-half if he left a wife only, the wife and children having (as in Scotland at the present day) a right to the rest. This was clearly enunciated as still existing law by Sir Harry Finch in the reign of Charles I, although Coke doubted it. But apparently it was considered a moot point and practically obsolete in Shakespeare's day, and was certainly ignored in his own will. It also seems that in cases of intestacy the wife and children took in the same shares as above, but that, subject to their claims, the residue went to the person to whom the Ordinary granted administration. Nominally he took it for pios usus, but practically he could keep it for himself, until the Statute of Distributions (22 & 23 Car. II, c. 10) deprived him of the right.

REFUTATION

E. REFUTED: In Recent Developments in the case for Oxford as Shakespeare, Peter Moore once again nails Underhill: "Any annotated, university-level edition of Hamlet, such as Arden, Oxford, or Cambridge, will explain exactly what statutes and recognizances had to do with buying land. Notice how Underhill words his statement in a evasive manner, instead of simply saying that statutes and recognizances had nothing to do with real estate." back