WAS SHAKSPEARE DESCENDED FROM A LANDED PROPRIETOR?
(Vol. ix., p. 75.)
I am inclined to think that Mr. Halliwell has been misled by his old law-books, for upon looking at the principal authorities upon this point, I cannot find any such interpretation of the term inheritance as that quoted by him from Cowell. The words "the inheritance," in the passage "heretofore the inheritance of William Shakspeare, Gent., deceased," would most certainly appear to imply that Shakspeare inherited the lands as heir-at-law to some one. But, however, it must not be concluded upon this alone that the poet's father was a landed proprietor, as the inheritance could proceed from any other ancestor to whom Shakspeare was by law heir.
Blackstone, in his Commentaries, has the following:
"Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir-at-law. An heir, therefore, is he upon whom the law casts the estate immediately on the death of the ancestor: and an estate, so descending to the heirs, is in Law called the inheritance."—Vol. ii. p. 201.
Again:
"Purchase, perquisitio, taken in its largest and most extensive sense, is thus defined by Littleton; the possession of lands and tenements which a man hath by his own act or agreement, and not by descent from any of his ancestors or kindred. In this sense it is contra-distinguished from acquisition by right of blood, and includes every other method of coming to an estate, but merely that by inheritance: wherein the title is vested in a person, not by his own act or agreement, but by the single operation of law."—Vol. ii. p. 241.
Thus it is clear the possession of an estate by inheritance is created only by a person being heir to it; and the mere purchase of it, though it vests the fee simple in him, can but make him the assign and not the heir. The nomination (as it would be in the case of a purchase) of an heir to succeed to the inheritance, has no place in the English law; the maxim being "Solus Deus hæredem facere potest, non homo;" and all other persons, whom a tenant in fee simple may please to appoint as his successors, are not his heirs but his assigns. (See Williams on the Law of Real Property.)
Russell Gole.
Mr. Halliwell is perfectly right in his opinion as to the expression "heretofore the inheritance of William Shakspeare." All that that expression in a deed means is, that Shakspeare was the absolute owner of the estate, so that he could sell, grant, or devise it; and in case he did not do so, it would descend to his heir-at-law. The term has no reference to the mode by which the estate came to Shakspeare, but only to the nature of the estate he had in the property. And as a man may become possessed of such an estate in land by gift, purchase, devise, adverse possession, &c., as well as by descent from some one else, the mere fact that a man has such an estate affords no inference whatever as to the mode in which he became possessed of it. The authorities on the subject are Littleton, section ix., and Co. Litt., p. 16. (a), &c. A case is there mentioned so long ago as the 6 Edw. III., where, in an action of waste, the plaintiff alleged that the defendant held "de hæreditate suâ," and it was ruled that, albeit the plaintiff had purchased the reversion, the allegation was sufficient.
In very ancient deeds the word is very commonly used where it cannot mean an estate that has descended to an heir, but must mean an estate that may descend to an heir. Thus, in a grant I have (without date, and therefore probably before A.D. 1300), Robert de Boltone grants land to John, the son of Geoffrey, to be held by the said John and his heirs "in feodo et hæreditate in perpetuum." This plainly shows that hæreditas is here used as equivalent to "fee simple." I have also sundry other equally ancient deeds, by which lands were granted to be held "jure hæreditaris," or "liberè, quietè, hæreditariè, et in pace." Now these expressions plainly indicate, not that the land has descended to the party as heir, but that it is granted to him so absolutely that it may descend to his heir; in other words, that an estate of inheritance, and not merely for life or for years, is granted by the deed.
S. G. C.
Mr. Halliwell's exposition of the term "inheritance," quoted from the Shakspeare deed, is substantially correct, and there can be no question but that the sentence "heretofore the inheritance of William Shakspeare, Gent., deceased," was introduced in such deed, simply to show that Shakspeare was formerly the absolute owner in fee simple of the premises comprised therein, and not to indicate that he had acquired them by descent, either as heir of his father or mother, although he might have done so. As Mr. Halliwell appears to attach some importance to the word "purchase," as used by Cowell in his definition of the term "inheritance," the following explanation of the word "purchase" may not prove unacceptable to him.
Purchase—"Acquisitum, perquisitum, purchasium"—signifies the buying or acquisition of lands and tenements, with money, or by taking them by deed or agreement, and not by descent or hereditary right. (Lit. xii.; Reg. Orig., 143.) In Law a man is said to come in by purchase when he acquires lands by legal conveyance, and he hath a lawful estate; and a purchase is always intended by title, either from some consideration or by gift (for a gift is in Law a purchase), whereas descent from an ancestor cometh of course by act of law; also all contracts are comprehended under this word purchase. (Coke on Littleton, xviii., "Doctor and Student," c. 24.) Purchase, in opposition to descent, is taken largely: if an estate comes to a man from his ancestors without writing, that is a descent; but where a person takes an estate from an ancestor or others, by deed, will, or gift, and not as heir-at-law, that is a purchase. This explanation might be extended, but it is not necessary to carry it farther for the purpose of Mr. Halliwell's inquiry.
Charlecote.
The word "inheritance" was used for hereditament, the former being merely the French form, the latter the Latin. Littleton (§ 9.) says:
"Et est ascavoir que cest parol (enheritance) nest pas tant solement entendus lou home ad terres ou tenementes per discent de heritage, mes auxi chescun fee simple ou taile que home ad per son purchase puit estre dit enheritance, pur ceo que ses heires luy purront enheriter. Car en briefe de droit que home portera de terre, que fuit de son purchase demesne, le briefe dira: Quam clamat esse jus et hereditamentum suum. Et issint serra dit en divers auters briefes, que home ou feme portera de son purchase demesne, come il appiert per le Register."
The word is still in use, and signifies what is capable of being inherited.
H. P.
Lincoln's Inn.