Imágenes de páginas

utterly injurious in matter, and absurd in con- may a conveyance in use or declaration of use struction.

The fourth reason is out of the nature of the conveyance, which is by way of use, and therefore ought to be construed more favourably, according to the intent, and not literally or strictly; for although it be said in Frene and Dillon's case, and in Fitzwilliams's case, that it is safe so to construe the statute of 27 H. VIII. as that uses may be made subject to the rules of the common law, which the professors of the law do know, and not to leave them to be extravagant and irregular; yet, if the late authorities be well marked, and the reason of them, you shall find this difference, that uses in point of operation are reduced to a kind of conformity with the rules of the common law, but that in point of exposition of words they retain somewhat of their ancient nature, and are expounded more liberally, according to the intent; for with that part the statute of 27 doth not meddle. And, therefore, if the question be, whether a bargain and sale upon condition be good to reduce the state back without an entry? or whether, if a man make a feoffment in fee to the use of John a Style for years, the remainder to the right heirs of John a Downe, this remainder be good or no? these cases will follow the grounds of the common law for possessions, in point of operation; but so will it not be in point of exposition.

The case of the mor of Olam.

For if I have the manor of Dale and the manor of Sale lying both in Vale, and I make a lease for life of them both, the remainder of the manor of Dale, and all other my lands in Vale to John a Style, the remainder of the manor of Sale to John a Downe, this latter remainder is void, because it comes too late, the general words having carried it before to John a Style. But put it by way of use a man makes a feoffment in fee of both manors, and limits the use of the manor of Dale, and all the other lands in Vale to the use of himself, and his wife for her jointure, and of the manor of Sale to the use of himself alone. Now his wife shall have no jointure in the manor of Sale, and so was it judged in the case of the manor of Odiam. And therefore our case is more strong, being by way of use, and you may well construe the latter part to control and qualify the first, and to make it attend and expect; nay, it is not amiss to see the case of Peryman, 41 Eliz. Coke, p. 5, f. 84, where by a custom a livery may expect; for the case was, that in the manor of Porchester the custom was, that a feoffment of land should not be good, except it were presented within a year in the court of the manor, and there ruled that it was but actus inchoatus, till it was presented; now, if it be not merely against reason of law, that so solemn a conveyance as livery, which keeps state, I tell you, and will not wait, should expect a farther perfection, a fortiori,

41 Eliz. Co p. 5, f. 64.

receive a consummation by degrees, and several acts. And thus much for the main point.

Now, for the objection of the word immediate, it is but light and a kind of sophistry. They say that the words are, that the uses shall rise immediately after the declaration, and we would have an interposition of an act between, namely, that there should be a declaration first, then a new assurance within the six months; and, lastly, the uses to rise: whereunto the answer is easy; for we have showed before that the declaration and the new assurance are in the intent of him that made the conveyance, and likewise, in eye of law, but as one compounded act. So as immediately after the declaration must be understood of a perfect and effectual declaration, with the adjuncts and accouplements expressed.

49 E. 3, f. 11.

So we see in 49 E. III. f. 11, if a man be attainted of felony, that holds lands of a common person, the king shall have his year, day, and waste; but when? Not before an office found; and yet the words of the statute of prærogativa regis are, rex habebit catalla felonum, et si ipsi habent liberum tenementum, statim capiatur in manus domini, et rex habebit annum, diem et vastum: and here the word stalim is understood of the effectual and lawful time, that is, after office found.

2 H. 4, f. 17.

So in 2 H. IV. f. 17, it appears that by the statute of Acton Burnell, if the debt be acknowledged, and the day past that the goods of the debtors shall be sold statim. in French maintenant; yet, nevertheless, this statim shall not be understood before the process of law requisite passed, that is, the day comprised in the extent.

27 H. 8, f. 19.

So it is said 27 H. VIII. f. 19, by Audley the chancellor, that the present tense shall be taken for the future; a fortiori, say I, the immediate future tense may be taken for a distant future tense; as if I be bound that my son, being of the age of twenty-one years, shall marry your daughter, and that he be now of twelve years; yet this shall be understood, when he shall be of the age of twenty-one years. And so in our case immediately after the declaration is intended when all things shall be performed, that are coupled with the said declaration.

But in this I doubt I labour too much; for no man will be of opinion, that it was intended that the Lady Stanhope should be six whole months without either the old jointure or the new; but that the old should expect until the new were settled without any interim. And so I conclude this course of atonements, as Fitzwilliams's case calls it, whereby I have proved, that all the words, by a true marshaling of the acts, may stand according to the intent of the parties.

I may add tanquam ex abundarti, that if both clauses do not live together, they must both die

Jermin and As

together; for the law loves neither fractions of estates nor fractions of constructions; and therefore in Jermin and Askew's case, kew's case. 37 Eliz., a man did devise lands in tail with proviso, that if the devisee did attempt to alien, his estate should cease, as if he were naturally dead. Is it said there that the words, as if he were naturally dead, shall be void, and the words, that his estate shall cease, good? No, but the whole clause shall be void. And it is all one reason of a so that, as of an as if, for they both suspend the sentence.

So if I make a lease for life, upon condition he shall not alien, nor take the profits, shall this be good for the first part, and void for the second? No, but it shall be void for both.

So if the power of declaration of uses had been thus penned, that Sir John Stanhope might by his deed indented declare new uses, so that the deed were enrolled before the mayor of St. Albans, who hath no power to take enrolments; or so that the deed were made in such sort, as might not be made void by Parliament: in all these and the like cases the impossibility of the last part doth strike upwards, and infect, and destroy the whole clause. And, therefore, that all the words may stand, is the first and true course; that all the words be void, is the second and probable; but that the revoking part should be good, and the assuring part void, hath neither truth nor probability.

Now come I to the second point, how this value should be measured, wherein, methinks, you are as ill a measurer of values as you are an expounder of words; which point I will divide, first considering what the law doth generally intend by the word value; and, secondly, to see what special words may be in these clauses, either to draw it to a value of a present arrentation, or to understand it of a just and true value.

the question is, whether, upon an eviction, there shall not be recovered from me land to the value of twenty pounds.

So if a man give land in frank-marriage then rented at forty pounds and no more worth, there descendeth other lands, let perhaps for a year or two for twenty pounds, but worth eighty pounds, shall not the donee be at liberty to put this land in hotchpotch?

So if two parceners be in tail, and they make partition of lands equal in rent, but far unequal in value, shall this bind their issues? By no means; for there is no calendar so false to judge of values as the rent, being sometimes improved, sometimes ancient, sometimes where great fines have been taken, sometimes where no fines; so as in point of recompense you were as good put false weights into the hands of the law, as to bring in this interpretation of value by a present arrentation. But this is not worth the speaking to in general; that which giveth colour is the special words in the clause of revocation, that the twenty pounds' value should be according to the rents then answered; and, therefore, that there should be a correspondence in the computation likewise of the recompense. But this is so far from countenancing that exposition, as, well noted, it crosseth it; for opposita juxta se posita magis elucescunt: first, it may be the intent of Sir Thomas, in the first clause, was double, partly to exclude any land in demesne, partly knowing the land was double, and as some say quadruple, better than the rent, he would have the more scope of revocation under his twenty pounds' value.

But what is this to the clause of recompense? first, are there any words secundum computationem prædictam? There are none. Secondly, doth the clause rest upon the words similis valoris? No, but joineth tantum et similis valoris : confound not predicaments; for they are the mere-stones of reason. Here is both quantity and quality; nay,

marry, it is somewhat to have men's possessions lie about them, and not dispersed. So it must be as much, as good, as near; so plainly doth the intent appear, that my lady should not be a loser.

The word value is a word well known to the law, and therefore cannot be, except it be will-he saith farther, within the same towns. Why, ingly, misunderstood. By the common law there is upon a warranty a recovery in value. I put the case, therefore, that I make a feoffment in fee with warranty of the manor of Dale, being worth twenty pounds per annum, and then in lease for twenty shillings. The lease expires, for that is our case, though I hold it not needful,

[For the point of the notice, it was discharged by the court.]



The effect of the first argument of the king's solicitor- | tute all the lordships' marchers are made shire general, in maintaining the jurisdiction of the council of the marches over the four shires. THE question for the present is only upon the statute of 32 H. VIII., and though it be a great ques on, yet it is contracted into small room; for it is but a true construction of a monosyllable, the word march.

The exposition of all words resteth upon three proofs, the propriety of the word, and the matter precedent, and subsequent.

ground, being either annexed to the ancient counties of Wales, or to the ancient counties of England, or erected into new counties, and made parcel of the dominion of Wales, and so no more marches after the statute of 27: so as there were no marches in that sense at the time of the making of the statute of 34.

The second argument is from the comparing of the place of the statute, whereupon our doubt riseth; namely, that there shall be and remain a lord president and council in the dominion of

Matter precedent concerning the intent of those that speak the words, and matter subsequent | Wales and the marches of the same, &c. with touching the conceit and understanding of those that construe and receive them.

First, therefore, as to vis termini, the force and propriety of the word; this word marches signifieth no more but limits, or confines, or borders, in Latin limites, or confinia, or contermina; and thereof was derived at the first marchio, a marquis, which was comes limitaneus.

another place of the same statute, where the word marches is left out; for the rule is, opposita juxta se posita magis elucescunt. There is a clause in the statute which gives power and authority to the king to make and alter laws for the weal of his subjects of his dominion of Wales; there the word marches is omitted, because it was not thought reasonable to invest the king with a power to alter the laws, which is the subjects' birthright, in any part of the realm of England; and, therefore, by the omission of the word marches in that place, you may manifestly collect the sig nification of the word in the other, that is to be

Now these limits cannot be linea imaginaria, but it must have some contents and dimension, and that can be no other but the counties adjacent; and for this construction we need not wander out of our own state, for we see the counties of Northumberland, Cumberland, and Westmoreland, late-meant of the four counties of England. ly the borders upon Scotland. Now the middle shires were commonly called the east, west, and middle marches.

To proceed, therefore, to the intention of those that made the statute, in the use of this word; I shall prove that the Parliament took it in this sense by three several arguments.

The first is, that otherwise the word should be idle; and it is a rule, verba sunt accipienda, ut sortientur effectum: for this word marches, as is confessed on the other side, must be either for the counties' marches, which is our sense, or the lordships' marchers, which is theirs; that is, such lordships, as by reason of the incursions and infestation of the Welsh, in ancient time, were not under the constant possession of either dominion, but like the bateable ground where the war played. Now if this latter sense be destroyed, then all equivocation ceaseth.

That it is destroyed appears manifestly, by the statute of 27 H. VIII., made seven years before the statute of which we dispute; for by that sta

The third argument which we will use is this: the council of the marches was not erected by the act of Parliament, but confirmed; for there was a president and council long before in E. IV. his time, by matter yet appearing; and it is evident upon the statute itself, that in the very clause which we now handle it referreth twice to the usage, as heretofore hath been used.

This, then, I infer, that whatsoever was the king's intention in the first erection of this court, was, likewise, the intention of the Parliament in the establishing thereof, because the Parliament builded upon an old foundation.

The king's intention appeareth to have had three branches, whereof every of them doth manifestly comprehend the four shires.

The first was the better to bridle the subject of Wales, which at that ume was not reclaimed and therefore it was necessary for the president and council there to have jurisdiction and conmand over the English shires; because that ly the aid of them, which were undoubted good sub


jects, they might the better govern and suppress number of years since; so that it is Janus bifrons,
it hath a face backward from the statute, as well
those that were doubtful subjects.
as forwards.

And if it be said, that it is true, that the four shires were comprehended in the commission of oyer and terminer, for the suppression of riots and misdemeanors, but not for the jurisdiction of a Court of Equity; to that I answer, that their commission of oyer and terminer was but gladius in vagina, for it was not put in practice amongst them; for even in punishment of riots and misdemeanors, they proceed not by their commission of oyer and terminer, by way of jury, but as a council, by way of examination. And again it was necessary to strengthen that court for their better countenance with both jurisdictions, as well civil as criminal, for gladius gladium juvat.

For the second, it hath received these allowances by the practice of that court, by suits originally commenced there, by remanding from the courts of Westminster, when causes within those shires have been commenced here above; sometimes in chancery, sometimes in the Star Chamber, by the admittance of divers great learned men and great judges, that have been of that council, and exercised that jurisdiction; as at one time Bromley, Morgan, and Brooks, being the two chief justices, and chief baron, and divers others; by the king's learned council, which always were called to the penning of the king's instructions; and, lastly, by the king's instructions themselves, which, though they be not al

The second branch of the king's intention was to make a better equality of commerce and intercourse in contracts and dealings between the sub-ways extant, yet it is manifest that since 17 H. jects of Wales and the subjects of England; and this of necessity must comprehend the four shires; for, otherwise, if the subject of England had been wronged by the Welsh on the side of Wales, he night take his remedy nearer hand. But if the subject of Wales, for whose weal and benefit the statute was chiefly made, had been wronged by the English in any of the shires, he might have sought his remedy at Westminster.

The third branch of the king's intent was to make a convenient dignity and state of the mansion and resiance of his eldest son, when he should be created Prince of Wales, which likewise must plainly include the four shires; for otherwise to have sent primogenitum regis to a government, which, without the mixture of the four shires, as things then were, had more pearl than honour or command; or to have granted him only a power of lieutenancy in those shires, where he was to keep his state, not adorned with some authority civil, had not been convenient.

So that here I conclude the second part of that I am to say touching the intention of the Parliament precedent.

Now, touching the construction subsequent, the rule is good, optimus legum interpres consuetudo; for our labour is not to maintain a usage against a statute, but by a usage to expound a statute; for no man will say but the word marches will bear the sense that we give it.

This usage or custom is fortified by four notable circumstances; first, that it is ancient, and not late or recent; secondly, it is authorized, and not popular or vulgar; thirdly, that it hath been admitted and quiet, and not litigious or interrupted; and, fourthly, when it was brought in question, which was but once, it hath been affirmed, judi

cio controverso.

For the first, there is record of a president and council, that hath exercised and practised jurisdiction in these shires, as well sixty years before the statute, namely, since 18 E. IV. as the like

VIII., when Princess Mary went down, that the four shires were ever comprehended in the instructions, either by name, or by that that amounts to so much. So as it appears that this usage or practice hath not been an obscure custom, practised by the multitude, which is many times erroneous, but authorized by the judgment and consent of the state: for as it is vera vox to say, maximus erroris populus magister; so it is dura vvx to say, maximus erroris princeps magister.

For the third, it was never brought in question till 16 Eliz. in the case of one Wynde.

And, for the fourth, the controversy being moved in that case, it was referred to Gerrard, attorney, and Bromley, solicitor, who was afterwards chancellor of England, and had his whole state of living in Shropshire and Worcester, and by them reported to the lords of the council in the Star Chamber, and upon their report decreed, and the jurisdiction affirmed.

Lastly, I will conclude with two manifest badges and tokens, though but external yet viclent in demonstration, that these four shires were understood by the word marches; the one the denomination of that council, which was ever in common appellation termed and styled the council of the marches, or in the marches, rather than the council of Wales, or in Wales, and d nominatio est a digniore. If it had been intended of lordships' marches, it had been as if one should have called my lord mayor my lord mayor of the suburbs. But it was plainly intended of the four English shires, which indeed were the more worthy.

And the other is of the perpetual resiance and mansion of the council, which was evermore in the shires; and to imagine that a court should not have jurisdiction where it sitteth, is a thing utterly improbable, for they should be tanquam piscis in arido.

So as, upon the whole matter, I conclude that the word marches in that place, by the natural

sense, and true intent of the statute, is meant the four counties; the other that the word marches feur shires. was used for the lordships' marchers long after both statutes.

The effect of that that was spoken by Serjeant Hutton and Serjeant Harris, in answer of the former argument, and for the excluding of the jurisdiction of the marches in the four shires.

That which they both did deliver was reduced to three heads:

The first to prove the use of the word marches for lordships' marchers.

The second to prove the continuance of that use of the word, after the statute of 27, that made the lordships' marchers shire-grounds; whereupon it was inferred, that though the marches were destroyed in nature, yet they remained in name.

The third was some collections they made upon the statute of 34; whereby they inferred, that that statute intended that word in that signification.

For the first, they did allege divers statutes before 27 H. VIII., and divers book-cases of law in print, and divers offices and records, wherein the word marches of Wales was understood of the lordships' marchers.

They said farther, and concluded, that whereas we show our sense of the word but rare, they show theirs common and frequent; and whereas we show it but in a vulgar use and acceptation, they show theirs in a legal use in statutes, authorities of books, and ancient records.

They said farther, that the example we brought of marches upon Scotland was not like, but rather contrary; for they were never called marches of Scotland, but the marches of England: whereas, the statute of 34 doth not speak of the marches of England, but of the marches of Wales.

They said farther, that the county of Worcester did in no place or point touch upon Wales, and, therefore, that county could not be termed marches.

To the second they produced three proofs; first, some words in the statute of 32 H. VIII., where the statute, providing for a form of trial for treason committed in Wales, and the marches thereof, doth use that word, which was in time after the statute o 27; whereby they prove the use of the word continued.

The second proof was out of two places of the statute, whereupon we dispute, where the word marches is used for the lordships' marchers.

[ocr errors]

They said farther, that otherwise the proceeding, which had been in the four new erected counties of Wales by the commission of oyer and terminer, by force whereof many had been proceeded with both for life and other ways, should be called in question, as coram non judice, insomuch as they neither were part of the principality of Wales, nor part of the four shires; and, therefore, must be contained by the word marches, or not at all.

For the third head, they did insist upon the statute of 34, and upon the preamble of the same statute.

The title being an act for certain ordinances in the king's majesty's dominion and principality of Wales; and the preamble being for the tender zeal and affection that the king bears to his subjects of Wales; and, again, at the humble suit and petition of his subjects of Wales; whereby they infer that the statute had no purpose to extend or intermeddle with any part of the king's dominions or subjects, but only within Wales.

And for usage and practice, they said, it was nothing against an act of Parliament.

And for the instructions, they pressed to see the instructions immediately after the statute made. And for the certificate and opinions of Gerrard and Bromley, they said, they doubted not, but that if it were now referred to the attorney and solicitor, they would certify as they did.

And, lastly, they relied, as upon their principal strength, upon the precedent of that, which was done of the exempting of Cheshire from the late jurisdiction of the said council; for they said, that from 34 of H. VIII. until 11 of Queen Eliz. the court of the marches did usurp jurisdiction upon that county, being likewise adjacent to Wales, as the other four are; but that in the eleventh year of Queen Elizabeth aforesaid, the same, being questioned at the suit of one Radforde, was referred to the Lord Dyer, and three other judges, who, by their certificate at large remaining of record in the Chancery, did pronounce the said shire to be exempted, and that in the conclusion of their certificate they gave this reason, because it was no part of the principality or marches of Wales. By which reason, they say, it should appear their opinion was, that the word marches could not extend to counties adjacent. This was the substance of their defence.

The reply of the king's solicitor to the arguments of the two serjeants.

The third proof was the style and form of the commission of oyer and terminer even to this day, which run to give power and authority to the president and council there, infra principalitat. Walliæ, and infra the four counties by name, with this clause farther, el marchias Walliæ eisdem Having divided the substance of their argu comitatibus adjacent': whereby they infer two ments, ut supra, he did pursue the same division things strongly, the one that the marches of in his reply, observing, nevertheless, both a great Wales must needs be a distinct thing from the redundancy and a great defect in that which was

« AnteriorContinuar »