The Roman word testament, is here used, in preference to the English word "will," a synonym for the instrument whereby a person alienated his estate after his death. A testament is the final declaration of a person, with reference to the disposition of his property. The older son, having been selected as the testamentary guardian, of the speaker, would naturally be charged with his education by the will and the charge of failure to discharge this trust of the testator, was a reason why the personal estate of the ward should be delivered over, even before the ward arrived at his maturity, as he could then demand his legal rights, under the father's will.

1 Swinburne, Wills, Sec. 2.

In King John, in the quarrel between Elinor and Constance, the following occurs: "Eli. Thou unadvised scold, I can produce a will that bars the title of thy son.

Const.

Ay, who doubts that? a will: a wicked will;
A woman's will; a canker'd grandam's will."

(Act II, Scene I.)

Reference to a testament is also made, in As You Like It (Act II, Scene I), as follows:

"1 Lord. O, yes, into a thousand similies.

First, for his weeping in the needless stream;
Poor deer, quoth he, thou mak'st a testament,

As worldlings do, giving thy sum of more,

To that which had too much."

Speaking of the death of the duke of York, at the battle of Agincourt, the duke of Exeter, said: "Exe. He threw his wounded arm and kiss'd his lips; and so, espoused to death, with blood he seal'd a testament of noble-ending love." (Henry V, Act IV, Scene VI.)

Joan of Arc, in 1' Henry VI, said to Talbot: "Puc. Help Salisbury to make his testament: This day is ours, as many more shall be." (Act I, Scene V.)

The Painter tells the Poet, in Timon of Athens: "Pain. performance is a kind of will and testament, which argues a great sickness in his judgment that makes it." (Act V, Scene I.)

On visiting Antioch, Pericles, Prince of Tyre, thus refers to his intention of making his will:

Sec. 108. Be it known by these presents.

"Le Beau. Three proper young men, of excellent growth and presence;—

"Ros.

With bills on their necks,-Be it known unto all men by these presents.”1

This play upon the use of the word "presence," by the substitution of the legal terms employed, shows the perfect familiarity of the Poet, with all forms of legal expression. The words, "Be It Known Unto All Men By These Presents," is form of legal terms used at the commencement of legal documents and papers, such as deeds and writs, by way of warning or to make the instrument impressive.

Sec. 109. Bankrupt.

"1 Lord. Anon, a careless herd, full of the pasture, Jumps along by him and never stays to greet him; Ay, quoth Jaques, sweep on, you fat and greasy citi

zens;

'Tis just the fashion: Wherefore do you look
Upon that poor and broken bankrupt there."

3

A "bankrupt" is a broken up, or ruined trader. When one becomes a bankrupt, as his credit is so far impaired as to render it impossible for him to do business in his

"Per. I'll make my will then, and, as sick men do,

Who know the world, see heaven, but feeling wo,
Gripe not at earthly joys, as erst they did."

1 As You Like It, Act I, Scene II.

(Act I, Scene I.)

John Cade assumes the legal form in addressing Lord Say, in 2' Henry VI, when he says: "Cade. . Be it known unto

thee by these presence, even the presence of lord Mortimer, that I am the besom that must sweep the court clean of such filth as thou art." (Act IV, Scene VII.)

Lucius assumes the legal formula, in Titus Andronicus, when he says: "Then, noble auditory, Be It Known to you," etc. (Act 2 As You Like It, Act II, Scene I.

33 Stor. C. C. 453; 2 Bl. Comm. 471.

own name, where credit is essential, the commercial world. generally "sweeps on" past such bankrupt, without the former business courtesies. The Poet's reference to such commercialism, as the fashion of such "fat and greasy citizens," to so "look" upon the "poor and broken bankrupt" illustrates the deep sympathy, akin to the "divine gift of pity," which he felt for the afflicted of his kind.

In Comedy of Errors (Act IV, Scene II) Dromio is made to say: "Dro. Time is a very bankrupt, and owes more than he's worth to season."

Speaking of the policies of King Richard II, Lord Ross said to Lord Willoughby:

"Ross. The earl of Wiltshire hath the realm in farm, Willo. The king's gone bankrupt, like a broken man." (Act II, Scene I.)

York observed, on the death of Gaunt, in Richard II: "York. Be York the next that must be bankrupt so: Though death be poor, it ends a mortal wo."

(Act II, Scene I.)

In abdicating the throne, King Richard II, said:

"K. Rich... An if my word be sterling yet in England, Let it command a mirror hither straight, That it may show me what a face I have,

Since it is bankrupt of his majesty." (Act IV, Scene I.) In Romeo and Juliet (Act III, Scene II), Juliet is made to say: "O, break, my heart: poor bankrupt, break at once." In Venus and Adonis, it is said: "A smile recures the wounding of a frown; But blessed bankrupt, that by love so thriveth." (465, 466.)

In The Rape of Lucrece, covetousness is thus referred to:

gaining more, the profit of excess

Is but to surfeit, and such griefs sustain,

That they prove bankrupt in this poor-rich gain." (138, 140.) After the perpetration of his crime Tarquin is described:

"With heavy eye, knit brow, and strengthless pace,

Feeble Desire, all recreant, poor and meek,

Like to a bankrupt beggar wails his case." (709, 711.)

The following occurs in the LXVII' Sonnet:

"Why should he live, now Nature bankrupt is,

Beggar'd of blood to blush through lively veins?" (9, 10.)

Find out thy brother, wheresoe'er he is.

Seek him with candle; bring him dead or living
Within this twelvemonth, or turn thou no more
To seek a living in thy territory.

Thy lands and all things that thou dost call thine
Worth seizure, do we seize into our hands."1

This is tantamount to a declaration on the part of the Duke, to forfeit the title of Oliver, to his lands and tenements, unless he can deliver his brother, Orlando, to the Duke within a year, and to confiscate, by seizure and attainture all the lands of which he is seized.

It was the principle of the common law-still recognized in the law of real property2-that the paramount title or right to the property of the citizen rested in the sovereign, or Government, and that for just cause this title could be forfeited, or confiscated.

Sec. 111. Writ extendi facias.

"Duke Fr.

Well, push him out of doors,
And let my officers of such a nature

Make an extent upon his house and lands."3

After declaring that he will confiscate and forfeit all the lands of Oliver, if he does not deliver Orlando to him within a year, the Duke, in this verse, advises Oliver to turn the real estate, "his house and lands," over to the proper officer of the Duke, under a writ extendi facias. This is the writ, that, at common law, issued, after forfeiture or judgment, against the lands and tenements of the person named in the writ. Writs fieri facias, issued against the personal estate of the debtor, while extendi facias, issued against his real estate and, in this connec

1 As You Like It, Act III, Scene I.

2 Tiedeman, R. P. (3d Ed.), Sec. 1. As You Like It, Act III, Scene I. Bouvier's Law Dictionary.

tion, it is noteworthy that the Poet uses the terms properly, for the writ is spoken of as one properly reaching the real estate of the absent Orlando.1

Sec. 112. Vacation of court.

"Ros.

Orl.

I'll tell you who time ambles withal, who time trots withal, who time gallops withal, and who he stands still withal.

.. Who stays it still withal?

Ros. With lawyers in the vacation: for they sleep between term and term and then they perceive not how times moves.' 112

In practice, the space of time for which a court holds its session, is called a "term"s and the period of time between the end of one term of court and the beginning of another term, is called the "vacation." In vacation, as only the most urgent orders and rules are made by the Judge, in Chambers, this is the dull season for lawyers, when they could properly "sleep" so that they would "perceive not how time moves."

"Ros. Nay, an you be so tardy, come no more in my sight; I had as lief be woo'd of a snail?

Orl. Of a snail?

Ros. Ay, of a snail; for though he comes slowly, he carries his house on his head; a better jointure, I think, than you can make a woman.'

175

1 Furness shows that the terms are not properly used in this connection, as the writ extendi facias, only issued after judg ment or a forfeiture, but as the declaration of the Duke is tantamount to a forfeiture of the goods, lands and property of Orlando, and a declaration of an intent to also work a forfeiture of Oliver's lands, the use of the terms is not so inappropriate, after all.

As You Like It, Act III, Scene II.

3 Bouvier's Law Dictionary.

Ante idem.

As You Like It, Act IV, Scene I.