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the council of the marches for punishing of perjury; who can doubt but that here marches is meant of the shires, considering the perjuries committed in them have been punished in that court as well as in Wales?
it by the etymology or derivation, because march is the Saxon word for limit, and marchio is comes limitaneus; this is the opinion of Camden and others.
Next, we prove the use of the word in the like
For 2 E. VI. and the clause therein for restrain-case to be for counties, by the example of the ing tithes of marriage portions in Wales and the marches, why should it not be meant of counties? For if any such customs had crept and encroached into the body of the shires out of the lordships' marchers, no doubt the statute meant to restrain them as well there as in the other places.
And so for the statute of 32 H. VIII. which ordains that the benefit of that statute for distress to be had by executors, should not extend to any lordship in Wales, or the marches of the same where mises are paid, because that imports a general release; what absurdity is there, if there the marches be meant for the whole shires? for if any such custom had spread so far, the reason of the statute is alike.
As for the statutes of 37 H. VIII. and 4 E. IV. for the making and appointing of the custos rotulorum, there the word marches must needs be taken for limits, according to the etymology and derivation; for the words refer not to Wales, but are thus, within England and Wales, and other the king's dominions, marches, and territories, that is, limits and territories; so as I see no reason but I may truly maintain my former assertion, that after the lordships' marchers were extinct by the statute of 27, the name also of marches was discontinued, and rarely if ever used in that sense.
But if it should be granted that it was now and then used in that sense, it helps them little; for first it is clear that the legal use of it is gone, when the thing was extinct, for nomen est rei nomen; so it remains but abusivè, as if one should call Guletta Carthage, because it was once Carthage; and, next, if the word should have both senses, and that we admit an equivocation, yet we so overweigh them upon the intent, as the balance is soon cast.
Yet one thing I will note more, and that is, that there is a certain confusion of tongues on the other side, and that they cannot well tell themselves what they would have to be meant by the word marches; for one while they say it is meant for the lordships' marchers generally, another while they say that it is meant for the inward marches on Wales's side only; and now at last they are driven to a poor shift, that there should be left some little lordship marcher in the dark, as casus omissus, not annexed at all to any county; but if they would have the statute satisfied upon that only, I say no more to them, but aquila non capit muscas.
marches of Scotland: for as it is prettily said in Walker's case by Gawdy, if a case have no cousin, it is a sign it is a bastard, and not legitimate; therefore, we have showed you a cousin, or rather a brother, here within our own island, of the like use of the word. And whereas a great matter was made that the now middle shires were never called the marches of Scotland, but the marches of England against Scotland, or upon Scotland, it was first answered that that made no difference; because sometimes the marches take their name of the inward country, and sometimes of the out country; so that it is but inclusivè and exclusivè: as for example, that which we call in vulgar speech this day fortnight, excluding the day, that the law calls quindena, including the day; and so, likewise, who will make a difference between the banks of the sea, and the banks against the sea, or upon the sea? But now, to remove all scruple, we show them Littleton in his chapter Of Grand Serjeantry, where he saith, there is a tenure by cornage in the marches of Scotland; and we show them likewise the statute of 25 E. III., Of Labourers, where they are also called the marches of Scotland.
Then we show some number of bills exhibited to the council there before the statute, where the plaintiffs have the addition of place confessed within the bodies of the shires, and no lordships' marchers, and yet are laid to be in the marches.
Then we show divers accounts of auditors in the duchy from H. IV. downwards, where the endorsement is in marchiis Wallix, and the contents are possessions only of Hereford and Gloucestershire, (for in Shropshire and Worcestershire the duchy hath no lands;) and whereas, they would put it off with a cuique in sua arte credendum, they would believe them, if it were in matter of accounts; we do not allege them as auditors, but as those that speak English to prove the common use of the word, loquendum ut vulgus.
We show, likewise, an ancient record of a patent to Herbert, in 15 E. IV., where Kilpeck is laid to be in com. Hereford in marchiis Walliæ; and, lastly, we show again the statute of 27 E. III., where provision is made that men shall labour in the summer where they dwell in the winter; and there is an exception of the people of the counties of Stafford and Lancashire, &c., and of the marches of Wales and Scotland; where it is most plain that the marches of Wales are meant for counties, because they are coupled both with Stafford and Lancashire, which are counties, and with the marches of Scotland. First, according to the laws of speech we prove which are likewise counties; and, as it is inforr
Now I will briefly remember unto you the state of our proofs of the word.
ed, the labourers of those four shires do come forth of their shires, and are known by the name of Cokers to this day.
To this we add two things, which are worthy consideration; the one, that there is no reason to put us to the proof of the use of this word marches sixty years ago, considering that usage speaks for us; the other, that there ought not to be required of us to show so frequent a use of the word marches of ancient time in our sense, as they showed in theirs, because there was not the like occasion: for, when a lordship marcher was mentioned, it was of necessity to lay it in the marches, because they were out of all counties; but when land is mentioned in any of these counties, it is superfluous to add, in the marches; so as there was no occasion to use the word marches, but either for a more brief and compendious speech to avoid the naming of the four shires, as it is in the statute of 25 E. III., and in the endorsement of accounts; or to give a court cognisance and jurisdiction, as in the bills of complaint; or, ex abundanti, as in the record of Kilpeck.
There resteth the third main part, whereby they endeavour to weaken and extenuate the proofs which we offer touching practice and possession, wherein they allege five things.
For Cheshire, we have answered it before, that the reason was, because it was not probable that the statute meant to make that shire subject to the jurisdiction of that council, considering it was not subject to the high courts at Westminster, in regard it was a county palatine. And, whereas they said, that so was Flintshire too, it matcheth not, because Flintshire is named in the statute for one of the twelve shires of Wales.
We showed you likewise effectual differences between Cheshire and these other shires; for that Cheshire hath a chancery in itself, and over Cheshire the princes claim jurisdiction, as Earl of Chester; to all which you reply nothing.
Therefore, I will add this only, that Cheshire went out secundo flumine, with the good will of the state; and this sought to be evicted adverso flumine, cross the state; and as they have opinion of four judges for the excluding of Cheshire, so we have the opinion of two great learned men, Gerrard and Bromley, for the including of Worcester; whose opinions, considering it was but matter of opinion, and came not judicially in question, are not inferior to any two of the other; but we say that there is no opposition or repugnancy between them, but both may stand.
For Cholmley's instructions, the words may well stand, that those shires are annexed by com
tions, for those words are commonly confounded,
First, that Bristol was in until 7 Eliz., and then | mission; for the king's commission or instrucexempted. Secondly, that Cheshire was in until 11 Eliz., must co-operate with the statute, or else they canand then went out.
Thirdly, they allege certain words in the instructions to Cholmley, vice-president, in 11 Eliz., at which time the shires were first comprehended in the instructions by name, and in these words, annexed by our commission: whereupon they would infer that they were not brought in the statute, but only came in by instructions, and do imagine that when Cheshire went out they came in.
Fourthly, they say that the intermeddling with those four shires before the statute, was but a usurpation and toleration, rather than any lawful and settled jurisdiction; and it was compared to that, which is done by the judges in their circuits, who end many causes upon petitions.
Fifthly, they allege Sir John Mullen's case, where it is said consuetudo non præjudicat veritati. There was moved, also, though it were not by the council, but from the judges themselves, as an extenuation, or at least an obscuring of the proofs of the usage and practice, in that we show forth no instructions from 17 H. VIII. to 1 Mariæ. To these six points I will give answer, and, as
I conceive, with satisfaction.
For Bristol, I say it teacheth them the right way, if they can follow it; for Bristol was not exempt by any opinion of law, but was left out of the instructions upon supplication made to the queen.
not be annexed. But for that conceit that they should come in but in 11, when Cheshire went out, no man that is in his wits can be of that opinion, if he mark it: for we see that the town of Glocester, &c., is named in the instructions of 1 Mar., and no man, I am sure, will think that Glocester town should be in, and Glocestershire out.
For the conceit, that they had it but jurisdictionem precariam, the precedents show plainly the contrary; for they had coercion, and they did fine and imprison, which the judges do not upon petitions; and, besides, they must remember that many of our precedents, which we did show forth, were not of suits originally commenced there, but of suits remanded from hence out of the king's courts as to their proper jurisdiction.
For Sir John Mullen's case, the rule is plain and sound, that where the law appears contrary, usage cannot control law; which doth not at all infringe the rule of optima legum interpres consuetudo; for usage may expound law, though it cannot overrule law.
But of the other side I could show you many cases, where statutes have been expounded directly against their express letter to uphold precedents and usage, as 2 and 3 Phil. et Mar. upon the statute of Westminster, that ordained that the judges coram quibus formatum erit appellum shall inquire of the damages, and yet the law ruled that
it shall be inquired before the judges of Nisi Prius. And the great reverence given to precedents appeareth in 39 H. VI. 3 E. IV. and a number of other books; and the difference is exceedingly well taken in Slade's case, Coke's Reports, 4, that is, where the usage runs but amongst clerks, and where it is in the eye and notice of the judge; for there it shall be presumed, saith the book, that if the law were otherwise than the usage hath gone, that either the council or the parties would have excepted to it, or the judges ex officio would have discerned of it, and found it; and we have ready for you a calendar of judges more than sit at this table, that have exercised jurisdiction over the shires in that county.
As for exception, touching the want of certain instructions, I could wish we had them; but the want of them, in my understanding, obscureth the case little. For, let me observe unto you, that we have three forms of instructions concerning these shires extant; the first names them not expressly, but by reference it doth, namely, that they shall hear and determine, &c. within any of the places or counties within any of their commissions; and we have one of the commissions, wherein they
were named; so as upon the matter they are named. And of this form are the ancient instructions before the statute of 17 H. VIII., when the Princess Mary went down.
The second form of instructions go farther, for they have the towns, and exempted places within the counties named, with tanquam as well within the city of Glocester, the liberties of the duchy of Lancaster, &c., as within any of the counties of any of their commissions; which clearly admits the counties to be in before. And of this form are the instructions 1 Mariæ, and so long until 11 Eliz.
And the third form, which hath been continued ever since, hath the shires comprehended by name. Now, it is not to be thought, but the instructions which are wanting, are according to one of these three forms which are extant. Take even your choice, for any of them will serve to prove that the practice there was ever authorized by the instructions here. And so upon the whole matter, I pray report to be made to his majesty, that the president and the council hath jurisdiction, according to his instructions, over the four shires, by the true construction of the statute of 34 H. VIII.
LEARNED READING OF MR. FRANCIS BACON,
ONE OF HER MAJESTY'S COUNSEL AT LAW,
THE STATUTE OF USES.
BEING HIS DOUBLE READING TO THE HONOURABLE SOCIETY OF GRAY'S INN.
case, 1 Rep.
I HAVE chosen to read upon the Sta- | ments o all the judges assembled in the Exchetute of Uses, made 27 H. VIII. ch. 10, quer Chamber, in the famous case between Dillon a law whereupon the inheritances of this realm are and Freine, concerning an assurance made by tossed at this day, like a ship upon the sea, in Chudleigh, this law began to be re- Chudleigh's such sort, that it is hard to say which bark will duced to a true and sound exposition, 121. Pop 7) sink, and which will get to the haven; that is to and the false and perverted exposi- 1 And. 314. Reason of writ. Say, what assurances will stand good, tion, which had continued for so many years, ing this treatise. and what will not. Neither is this but never countenanced by any rule or authorany lack or default in the pilots, the grave and ity of weight, but only entertained in a populearned judges; but the tides and currents of re-lar conceit, and put in practice at adventure, ceived error, and unwarranted and abusive experience have been so strong, as they were not able to keep a right course according to the law, so as this statute is in great part as a law made in the Parliament, held 35 Reginæ; for, in 37 Reginæ, by the notable judgment given upon solemn argu
grew to be controlled; since which time (as it cometh to pass always upon the first reforming of inveterate errors) many doubts and perplexed questions have risen, which are not yet resolved, nor the law thereupon settled: the consideration whereof moved me to take the occasion of per
forming this particular duty to the House, to see if I could, by my travel, bring the exposition thereof to a more general good of the commonwealth.
Having therefore framed six divisions, according to the number of readings upon the statute itself, I have likewise divided the matter without the statute into six introductions or discourses, so that for every day's reading I have made a triple provision.
1. A preface or introduction.
2. A division upon the law itself. 3. A few brief cases for exercise and argu ment.
The last of which I would have forborne; and, according to the ancient manner, you should have taken some of my points upon my divisions, one, two, or more, as you should have thought good; save that I had this regard, that the younger sort of the bar were not so conversant in matters upon the statutes; and for that cause I have interlaced some matters at the common law, that are more familiar within the books.
1. The first matter I will discourse unto you is the nature and definition of a use, and its inception and progression before the statute.
Herein, though I could not be ignorant either of the difficulty of the matter, which he that taketh in hand shall soon find, or much less of my own unableness, which I had continual sense and feeling of; yet, because I had more means of absolution than the younger sort, and more leisure than the greater sort, I did think it not impossible to work some profitable effect; the rather because where an inferior wit is bent and constant upon one subject, he shall many times, with patience and meditation, dissolve and undo many of the knots, which a greater wit, distracted with many matters, would rather cut in two than unknit: and, at the least, if my invention or judgment be too barren or too weak, yet, by the benefit of other arts, I did hope to dispose or digest the authorities and opinions which are in cases of uses in such order and method, as they should take light one from another, though they took no light from me. And like to the matter of my reading shall my manner be, for my meaning is to revive and recontinue the ancient form of read-assurances of this realm at this day upon uses, ing, which you may see in Mr. Frowicke's upon the prerogative, and all other readings of ancient time, being of less ostentation, and more fruit than the manner lately accustomed: for the use then was, substantially to expound the statutes by grounds and diversities; as you shall find the readings still to run upon cases of like law and contrary law; whereof the one includes the learning of a ground, the other the learning of a difference; and not to stir conceits and subtle doubts, or to contrive a multitude of tedious and intricate cases, whereof all, saving one, are buried, and the greater part of that one case which is taken, is commonly nothing to the matter in hand; but my labour shall be in the ancient course, to open the law upon doubts, and not to open doubts upon
There be three things concerning this statute, and all other statutes, which are helps and inducements to the right understanding of any statute, and yet are no part of the statute itself.
1. The consideration of the case at the common law.
2. The consideration of the mischief which the statute intendeth to redress, as also any other mischief, which an exposition of the statute this way or that way may breed.
2. The second discourse shall be of the second spring of this tree of uses since the statute. 3. The third discourse shall be of the estate of the
and what kind of them is convenient and reasonable, and not fit to be touched, as far as the sense of law and a natural construction of the statute will give leave; and what kind of them is inconvenient and meet to be suppressed.
4. The fourth discourse shall be of certain rules and expositions of laws applied to this present purpose.
5. The fifth discourse shall be of the best course to remedy the same inconveniences now afoot, by construction of the statute, without offering either violence to the letter or sense.
6. The sixth and last discourse shall be of the course to remedy the same inconveniences, and to declare the law by act of Parliament; which last I think good to reserve, and not to publish. The nature of a use is best discerned by considering, first, what it is not, and uses tre the then what it is; for it is the nature of all human science and knowledge to proceed most safely, by negative and exclusion, to what is affirmative and inclusive.
First, a use is no right, title, or interest in law; and, therefore, Master Attorney Coke, who read upon this statute, said well, that there are but two rights.
Jus in re: Jus ad rem.
Of the nature of
what it is unt. Chaleigh's
1 Kep 121.
The one is an estate, which is Jus in re: the other a demand, which is Jus ad rem: but a use is neither: so that in 24 H. VIII. it is said that the saving of the statute of to uses, pl. 40.
3. Certain maxims of the common law, touch-1 R. III. which saveth any right or interest of ng exposition of statutes.
entails, must be understood of entails of the pos
5 H. 7. 5. 15 H. 7. 2.
11. 5. 3.
Br. Forfeiture, 5 11.3.
Co. Lit. 2:2
mon law, so as the law knoweth it, but protects it
session, and not of the part of the use, because a use is no right nor interest. So, again, you see that Littleton's conceit, that a use should amount to a tenancy at will, whereupon a release might well inure, because of privity, is controlled by 4 and 15 H. VII., and divers other books, which say that cestuy que use is punishable in an action of trespass towards the feoffees; only 5 H. V. seemeth to be at some discord with other books, where it is admitted for law, that if there be cestuy que use of an advowson, and he be outlawed in a personal action, the king should have the presentment; which case Master Ewens, in the argument of Chudleigh's case, did seek to reconcile thus: where cestuy que use, being outlawed, had presented in his own name, there the king should remove his incumbent but no such thing can be collected upon the book: and, therefore, I conceive the error grew upon this, that because it was generally thought, that a use was but a pernancy of profits; and then, again, because the law is, that, upon outlaw in a personal action, the king shall have the pernancy of the profits, they took that to be one and the selfsame thing cestuy que use had, and which the king was entitled unto; which was not so; for the king had remedy in law for his pernancy of the profits, but cestuy que use had none. The books go further, and say, that a use is nothing, as in 2 7 H. 7. 11, 12. H. VII. det was brought and counted sur leas for years rendering rent, &c. The defendant pleaded in bar, that the plaintiff nihil habuit tempore dimissionis: the plaintiff made a special replication, and showed that he had a use, and issue joined upon that; wherefore it appeareth, that if he had taken issue upon the defend- The special trust is either lawful or unlawful. ant's plea, it should have been found against The special trust unlawful is, according to the him. So again in 4 Reginæ, in the cases provided for by ancient statutes of fermours case of the Lord Sandys, the truth of of the profits; as where it is to defraud creditors, the cause was, a fine was levied by cestuy que or to get men to maintain suits, or to defeat the use before the statute, and this coming in question tenancy to the præcipe, or the statute of mortmain, since the statute upon an averment by the plaintiff or the lords of their wardships, or the like; and quod partes fiinis nihil habuerunt, it is said that the those are termed frauds, covins, or collusions. defendant may show the special matter of the use, The special trust lawful is, as when I infeoff and it shall be no departure from the first plead-some of my friends, because I am to go beyond ing of the fine; and it is said farther, that the the seas, or because I would exempt the land form of averment given in 4 H. VII. quod partes from some general statute, or bond, which I am finis nihil habuerunt, nec in possessione, nec in usu, to enter into, or upon intent to be reinfeoffed, or was ousted by this statute of 22 H. VIII. and was intent to be vouched, and so to suffer a common no more now to be accepted; but yet it appears, recovery, or upon intent that the feoffees shall that if issue had been taken upon the general infeoff over a stranger, and infinite the like intents averment, without the special matter showed, it and purposes, which fall out in men's dealings should have been found for him that took the and occasions; and this we call confidence, and averment, because a use is nothing. But these the books do call them intents; but where the books are not to be taken generally or grossly; trust is not special, nor transitory, but general for we see in the same books, that when a use is and permanent, there it is a use; and therefore specially alleged, the law taketh knowledge of these three are to be distinguished, and not it; but the sense of it is, that a use is nothing for confounded; the covin, the confidence, and which remedy is given by the course of the com- the use.
2 H. 7. 4.
Dyer 215. 6.
A second negative fit to be understood is, that a use is no covin, nor it is no collusion, as the word is now used; for it is to be noted, that where a man doth remove the estate and possession of lands or goods, out of himself unto another upon trust, it is either a special trust, or a general trust.