DEVISE AND BEQUEATH.

23

Thus it is evident that, in Shakespeare's time, the use of the word devise in a Will, in disposing of real property, or the omitting to use that word in disposing of the personal property, or even the use of the word bequeath in disposing of the personal property, or the omitting to use the word bequeath in disposing of the real property, would afford no evidence of technical skill, nor would the application of the word devise to personal property, or of the word bequeath to real property, afford evidence of a want of technical skill; because the few quotations I have made, from the old law writers, prove that before, during, and after Shakespeare's day, the words devise and bequeath were applied indifferently to both real and personal property.

Definitions are saide to be dangerous in lawe; the cause may be attributed to the multitude of different cases, the penurie of apt wordes, the weakness of our understanding and the contrarietie of opinions. For happely amongest such aboundant varietie of thinges, either we cannot discerne the true essence thereof, or we doo not aptly deliver what we conceave, or els these perils being past, at least in our owne opinions, yet are we still subject to the rigorous examination of all sorts of men, and must abide the doubtfull verdict of the sharpest wittes, and endure the dreadfull sentence of the deepest judgements. And it is rare if at the last, after long and superstitious revolution, one man at least among so many subtile heads and captious conceits doe not espie some defect or excesse in the definition, whereby the same may be subverted. Which thing if it come to pas, then like as when the captain is slaine, the souldiers are in danger to be discomfited; or as the foundation being ruinous, the building is in peril of falling.

Valentine. O thou that dost inhabit in my breast,
Leave not the mansion so long tenantless :
Lest, growing ruinous, the building fall,
And leave no memory of what it was!

Two Gentlemen of Verona, Act v. Sc. 4.

So the definition being overthrowen, all the arguments drawen from thence and whatsoever els dependeth thereupon, is in perill to be overturned. No marvel then if definitions be reported to be dangerous. -Swinburn, 5.

Jaques de Bois. And to the skirts of this wild wood he came;

Where meeting with an old religious man,
After some question with him, was converted
Both from his enterprise and from the world,
His crown bequeathing to his banish'd brother,
And all their lands restored to them again
That were with him exiled.

As You Like It, Act v. Sc. 4.

By the opinion of divers justices of this realme, and doctors of the cannon and civill lawe, the goodes of this realme, that is to say, of the auncient crowne, and jewelles, cannot be disposed by will. -Swinburn, 93.

But the word crown used by Jaques in this

'PAPER BULLETS.'

25

passage may signify dominion or sovereignty, or, as Schlegel says, 'Herrschaft':

Notwithstanding as well by the civill law as by the cannon lawe (with the which lawes the lawes of this our realme of England doe in this point seeme to joyne hands): It is unlawfull for a king to give awaie his kingdom from his lawfull heires, for the confirmation whereof divers writers use divers reasons. -Swinburn, 68.

Benedict. Shall quips and sentences and these paper bullets of the brain awe a man from the career of his humour?

Much Ado About Nothing, Act ii. Sc. 3.

But amongst all their reasons, I see no reason to induce me to adventure anie further into the examination of this deepe and dangerous question, much lesse to proceede to the conclusion; not onelie because the same being so high an object, dooth farre exceede the slender capacitie of a meane subjecte, but also for that this princlie controversie, as it hath seldome received ordinarie triall heretofore; so hereafter, if the case were to be urged in verie deede, verie likelie it is to be urged with more violent arguments and sharpe syllogismes, then by the unbloodie blowes of bare words, or the weake weapons of instruments made of paper and parchment. And on the other side to bee answered with flatte denials of greater force, and distinctions of greater efficacie, then can proceede from anie legall or logicall engine, and in the end to be decided and ruled by the dead stroke of uncivill and martial cannons, rather than by anie rule of the civill or cannon lawe.Swinburn, 68.

Bene. I have almost matter enough in me for such an embassage; and so I commit you

C

Claud. To the tuition of God: From my house, if I had it.

Much Ado About Nothing, Act i. Sc. 1.

Shakespeare, in this passage, uses testamentary language, and this meaning of the word tuition will appear from the following

extracts:

In the third part of this testamentarie treatise, there is to be shewed, firste what thinges, and then how much the testator maie dispose or devise by his testament. Concerning the former of these, it shall not be a misse to speake first of the bequeathing or devising of landes, tenements or hereditaments. Secondlie, of bequeathing or devising of goods and cattelles; and thirdlie, of the committing of the tuition of children, and custodie of their portions and rights, during their minorities. Swinburn, page 69.

By generall custome observed within the province of Yorke, the father by his last will or testament maie for a time commit the tuition of his childe, and the custodie of his portion, for within that province children have their filial portions of their father's goods according to the civill lawe, except he be heire or advanced in the life time of his father, which testament and assignation is to be confirmed by the ordinarie, who is also to provide for the execution of the same testament. And if there be no tutor testamentarie at all, then maie the ordinarie commit the tuition of the childe to his next kinse-man. -Swinburn, 97.

In the old forms of wills, in assigning or appointing a tutor, the testator used words

'COMMIT TO THE TUITION.'

27

such as these: 'I commit my son to the tuition of A. B.;' and so much were the words 'commit' and 'tuition' used in connection with each other in making this appointment, that if the testator said 'I commit my son to A. B.,' omitting the word 'tuition,' it was presumed that he intended to use it, and that A. B. should be tutor to his child.

It skilleth not by what wordes the tutor be appointed, so that the testator's meaning doo appeare, for they are neverthelesse to bee confirmed tutors. Wherefore, if the testator saie I commit my children to the power of A. B. or leave them in his hands, it is in effect, as if the testator had said, I make A. B. tutor to my children; so it is if hee saie, I leave them to his governement, regiment, administration, &c. If the testator saie, I commit my sonne to A. B. both quicke and dead, with all his legacies by me given, by these wordes it is presumed that the testator meant that A. B. should be tutor to his child if he lived, and if he died, then to have those legacies. If the testator saie, I desire my wife to take care of my children during their minorities, albeit those wordes doo not necessarilie infer or conclude a tuition of their owne nature, but rather that she should chastice them, when they deserved to be corrected, (for to have tuition of children is a greater thinge and extendeth further then to have a care of them onelie:) Neverthelesse, for as much as the ruder sorte of people doe not know the difference of termes, nor the naturall force of wordes: Therefore, if any be assigned tutor by