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the council of the marches for punishing of per- it by the etymology or derivation, because march jury; who can doubt but that here marches is is the Saxon word for limit, and marchio is meant of the shires, considering the perjuries comes limitaneus ; this is the opinion of Camden committed in them have been punished in that and others. court as well as in Wales?
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 of Scotland : for as it is prettily said in marches, why should it not be meant of counties? Walker's case by Gawdy, if a case have no couFor if any such customs had crept and encroached sin, it is a sign it is a bastard, and not legitimate ; into the body of the shires out of the lordships' therefore, we have showed you a cousin, or rather marchers, no doubt the statute meant to restrain a brother, here within our own island, of the like them as well there as in the other places. use of the word. And whereas a great matter
And so for the statute of 32 H. VIII, which was made that the now middle shires were never ordains that the benefit of that statute for distress called the marches of Scotland, but the marches 10 be had by executors, should not extend to any of England against Scotland, or upon Scotland, it lordship in Wales, or the marches of the same was first answered that that made no difference; where mises are paid, because that imports a because sometimes the marches take their name general release ; what absurdity is there, if there of the inward country, and sometimes of the out the marches be meant for the whole shires ? for country; so that it is but inclusive and exclusive: if any such custom had spread so far, the reason as for example, that which we call in vulgar of the statute is alike.
speech this day fortnight, excluding the day, that As for the statutes of 37 H. VIII. and 4 E. IV. the law calls quindena, including the day; and for the making and appointing of the custos so, likewise, who will make a difference between rotulorum, there the word marches must needs the banks of the sea, and the banks against the be taken for limits, according to the etymology sea, or upon the sea ? But now, to remove all and derivation ; for the words refer not to Wales, scruple, we show them Littleton in his chapter but are thus, within England and Wales, and of Grand Serjeantry, where he saith, there is a other the king's dominions, marches, and terri- tenure by cornago in the marches of Scotland ; tories, that is, limits and territories; so as I see and we show them likewise the statute of 25 E. no reason but I may truly maintain my former III., Of Labourers, where they are also called the assertion, that after the lordships' marchers were marches of Scotland. extinct by the statute of 27, the name also of Then we show some number of bills exhibited marches was discontinued, and rarely if ever used to the council there before the statute, where the in that sense.
plaintiffs have the addition of place confessed Bat if it should be granted that it was now and within the bodies of the shires, and no lordships' then used in that sense, it helps them little; for marchers, and yet are laid to be in the marches. first it is clear that the legal use of it is gone, when Then we show divers accounts of auditors in the thing was extinct, for nomen est rei nomen; the duchy from H. IV. downwards, where the so it reinains but abusivè, as if one should call endorsement is in marchiis Wallix, and the conGuletta Carthage, because it was once Carthage; tents are possessions only of Hereford and Glouand, next, if the word should have both senses, cestershire, (for in Shropshire and Worcestershire and that we admit an equivocation, yet we so the duchy hath no lands;) and whereas, they overweigh them upon the intent, as the balance would put it off with a cuique in sua arte credenis soon cast.
dum, they would believe them, if it were in matter Yet one thing I will note more, and that is, of accounts; we do not allege them as auditors, that there is a certain confusion of tongues on the but as those that speak English to prove the comother side, and that they annot well tell them- mon use of the word, loquendum ut vulgus. selves what they would have to be meant by the We show, likewise, an ancient record of a word marches; for one while they say it is meant patent to Herbert, in 15 E. IV., where Kilpeck for the lordships' marchers generally, another is laid to be in com. Hereford in marchiis Walliæ ; while they say that it is meant for the inward and, lastly, we show again the statute of 27 E. marches on Wales's side only; and now at Jast III., where provision is made that men shall they are driven to a poor shift, that there should labour in the summer where they dwell in the be left some little lordship marcher in the dark, winter; and there is an exception of the people as casus omissus, not annexed at all to any coun- of the counties of Stafford and Lancashire, &c., ty; but if they would have the statute satisfied and of the marches of Wales and Scotland ; upon that only, I say no more to them, but aquila where it is most plain that the marches of Wales non capit muscas.
are meant for counties, because they are coupled Now I will briefly remember unto you the state both with Stafford and Lancashire, which are of our proofs of the word.
counties, and with the marches of Scotland. First, according to the laws of speech we prove which are likewise counties; and, as it is inforğı
ed, the labourers of those four shires do come For Cheshire, we have answered it before, that forth of their shires, and are known by the name the reason was, because was not probable that of Cokers to this day.
the statute meant to make that shire subject to the To this we add two things, which are worthy jurisdiction of that council, considering it was consideration; the one, that there is no reason to not subject to the high courts at Westminster, in put us to the proof of the use of this word regard it was a county palatine. And, whereas marches sixty years ago, considering that usage they said, that so was Flintshire too, it matcheth speaks for us; the other, that there ought not to not, because Flintshire is named in the statute be required of us to show so frequent a use of for one of the twelve shires of Wales. the word marches of ancient time in our sense, We showed you likewise effectual differences as they showed in theirs, because there was not between Cheshire and these other shires; for that the like occasion: for, when a lordship marcher Cheshire hath a chancery in itself, and over Chewas mentioned, it was of necessity to lay it in shire the princes claim jurisdiction, as Earl of the marches, because they were out of all coun- Chester; to all which you reply nothing. ties; but when land is mentioned in any of these Therefore, I will add this only, that Cheshire counties, it is superfluous to add, in the marches; went out secundo flumine, with the good will of so as there was no occasion to use the word the state; and this sought to be evicted adverso marches, but either for a more brief and compen- flumine, cross the state ; and as they have opinion dious speech to avoid the naming of the four of four judges for the excluding of Cheshire, so shires, as it is in the statute of 25 E. III., and in we have the opinion of two great learned men, the endorsement of accounts; or to give a court | Gerrard and Bromley, for the including of Worcognisance and jurisdiction, as in the bills of cester; whose opinions, considering it was but complaint; or, ex abundanti, as in the record of matter of opinion, and came not judicially in Kilpeck.
question, are not inferior to any two of the other; There resteth the third main part, whereby they but we say that there is no opposition or repugendeavour weaken and extenuate the proofs nancy between them, but both may stand. which we offer touching practice and possession, For Cholmley's instructions, the words may wherein they allege five things.
well stand, that those shires are annexed by comFirst, that Bristol was in until 7 Eliz., and then mission; for the king's commission or instrucexempted.
tions, for those words are commonly confounded, Secondly, that Cheshire was in until 11 Eliz., must co-operate with the statute, or else they canand then went out.
not be annexed. But for that conceit that they Thirdly, they allege certain words in the in- should come in but in 11, when Cheshire went structions to Cholmley, vice-president, in 11 out, no man that is in his wits can be of that Eliz., at which time the shires were first com- opinion, if he mark it: for we see that the town prehended in the instructions by name, and in of Glocester, &c., is named in the instructions these words, annexed by our commission : where- of 1 Mar., and no man, I am sure, will think upon they would infer that they were not brought that Glocester town should be in, and Glocester. in the statute, but only came in by instructions, shire out. and do imagine that when Cheshire went oui For the conceit, that they had it but jurisdicthey came in.
tionem precariam, the precedents show plainly Fourthly, they say that the intermeddling with the contrary; for they had coercion, and they did those four shires before the statute, was but a fine and imprison, which the judges do not upon usurpation and toleration, rather than any lawful petitions; and, besides, they must remember that and settled jurisdiction; and it was compared to many of our precedents, which we did show forth, that, which is done by the judges in their circuits, were not of suits originally commenced there, but who end many causes upon petitions.
of suits remanded from hence out of the king's Fifthly, they allege Sir John Mullen's case, courts as to their proper jurisdiction. where it is said consuetudo non præjudicat veritati. For Sir John Mullen's case, the rule is plain
There was moved, also, though it were not by and sound, that where the law appears contrary, the council, but from the judges themselves, as usage cannot control law; which doth not at all an extenuation, or at least an obscuring of the infringe the rule of optima legum interpres con suiproofs of the usage and practice, in that we show tudo ; for usage may expound law, though it Birth no instructions from 17 H. VIII. to 1 Mariæ. cannot overrule law. To these six points I will give answer, and, as
But of the other side I could show you many I conceive, with satisfaction.
cases, where statutes have been expounded di. For Bristol, I say it teacheth them the right rectly against their express letter to uphold preceway, if they can follow it; for Bristol was not dents and usage, as 2 and 3 Phil. et Mar. upon exempt by any opinion of law, but was left out the statute of Westminster, that ordained that the of the instructions upon supplication made to the judges coram quibus formatum erit appellum shall queen.
inquire of the damages, and yet the law ruled that
it shall be inquired before the judges of Nisi | were named; so as upon the matter they are Prius. And the great reverence given to prece. named. And of this form are the ancient instrucdents appeareth in 39 H. VI. 3 E. IV.and a num- tions before the statute of 17 H. VIII., when the ber of other books; and the difference is exceed- Princess Mary went down. ingly well taken in Slade's case, Coke's Reports, The second form of instructions go farther, for 4, that is, where the usage runs but amongst they have the towns, and exempted places within clerks, and where it is in the eye and notice of the the counties named, with tanquam as well within judge; for there it shall be presumed, saith the the city of Glocester, the liberties of the duchy of book, that if the law were otherwise than the usage Lancaster, &c., as within any of the counties of hath gone, that either the council or the parties any of their commissions; which clearly admits would have excepted to it, or the judges ex officio the counties to be in before. And of this forın are would have discerned of it, and found it; and we the instructions 1 Mariæ, and so long until 11 Eliz. have ready for you a calendar of judges more than And the third form, which hath been continued sit at this table, that have exercised jurisdiction ever since, hath the shires comprehended by over the shires in that county.
name. Now, it is not to be thought, but the inAs for exception, touching the want of certain structions which are wanting, are according to instructions, I could wish we had them; but the one of these three forms which are extant. Take want of them, in my understanding, obscureth the even your choice, for any of them will serve to case little. For, let me observe unto you, that we prove that the practice there was ever authorized have three forms of instructions concerning these by the instructions here. And so upon the whole shires extant; the first names them not expressly, matter, I pray report to be made to his majesty, but by reference it doth, namely, that they shall that the president and the council hath jurisdic. hear and determine, &c. within any of the places tion, according to his instructions, over the four or counties within any of their commissions; and shires, by the true construction of the statute of we have one of the commissions, wherein they 34 H. VIII.
LEARNED READING OF MR. FRANCIS BACON,
ONE OF HER MAJESTY'S COUNSEL AT LAW,
THE STATUTE OF USE S.
BEING HIS DOUBLE READING TO THE HONOURABLE SOCIETY OF GRAY'S INN.
The introduc tion.
Chudleigh's case, I Rep.
I have chosen to read upon the Sta- ments o all the judges assembled in the Exche
tute 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 resuch sort, that it is hard to say which bark will duced to a true and sound exposition, 2. Porno sink, and which will get to the haven; that is to and the false and perverted exposi- 1 And. 314. Reasot 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 experi- grew to be controlled; since which time (as it ence have been so strong, as they were not able to cometh to pass always upon the first reforming of keep a right course according to the law, so as this inveterate errors) many doubts and perplexed statute is in great part as a law made in the Par- questions have risen, which are not yet resolved, liament, held 35 Reginæ; for, in 37 Reginæ, by nor the law thereupon settled: the consideration the notable judgment given upon solenn argu- whereof moved me to take the occasion of per
forming this particular duty to the House, to see Having therefore framed six divisions, accordif I could, by my travel, bring the exposition ing to the number of readings upon the statute thereof to a more general good of the common- itself, I have likewise divided the matter without wealth.
the statute into six introductions or discourses, so Herein, though I could not be ignorant either that for every day's reading I have made a triple of the difficulty of the matter, which he that provision. taketh in hand shall soon find, or much less of my 1. A preface or introduction. own unableness, which I had continual sense and 2. A division upon the law itself. feeling of; yet, because I had more means of 3. A few brief cases for exercise and argu. absolution than the younger sort, and more leisurement. than the greater sort, I did think it not impossible The last of which I would have forborne; and, to work some profitable effect; the rather because according to the ancient manner, you should where an inferior wit is bent and constant upon have taken some of my points upon my divisions, one subject, he shall many times, with patience one, two, or more, as you should have thought and meditation, dissolve and undo many of the good; save that I had this regard, that the knots, which a greater wit, distracted with many younger sort of the bar were not so conversant in matters, would rather cut in two than unknit: matters upon the statutes; and for that cause I and, at the least, if my invention or judgment be have interlaced some matters at the common law, too barren or too weak, yet, by the benefit of that are more familiar within the books. other arts, I did hope to dispose or digest the 1. The first matter I will discourse unto you authorities and opinions which are in cases of is the nature and definition of a use, and its incepuses in such order and method, as they should tion and progression before the statute. take light one from another, though they took no 2. The second discourse shall be of the second light from me. And like to the matter of my spring of this tree of uses since the statute. reading shall my manner be, for my meaning is 3. The third discourse shall be of the estate of the to revive and recontinue the ancient form of read-assurances of this realm this day upon uses, ing, which you may see in Mr. Frowicke's upon and what kind of them is convenient and reasonthe prerogative, and all other readings of ancientable, and not fit to be touched, as far as the sense time, being of less ostentation, and more fruit of law and a natural construction of the statute than the manner lately accustomed : for the use will give leave; and what kind of them is inconthen was, substantially to expound the statutes venient and meet to be suppressed. by grounds and diversities; as you shall find the 4. The fourth discourse shall be of certain readings still to run upon cases of like law and rules and expositions of laws applied to this precontrary law; whereof the one includes the learn- sent purpose. ing of a ground, the other the learning of a differ- 5. The fifth discourse shall be of the best ence; and not to stir conceits and subtle doubts, course to remedy the same inconveniences now or to contrive a multitude of tedious and intricate afoot, by construction of the statute, without cases, whereof all, saving one, are buried, and the offering either violence to the letter or sense. greater part of that one case which is taken, is 6. The sixth and last discourse shall be of the commonly nothing to the matter in hand; but my course to remedy the same inconveniences, and labour shall be in the ancient course, to open the to declare the law by act of Parliament; which law upon doubts, and not to open doubts upon last I think good to reserve, and not to publish. the law.
'The nature of a use is best discerned EXPOSITIO STATUTI.
by considering, first, what it is not, and uses tekre the
then what it is; for it is the nature of The exposition of this statute con- all human science and knowledge to proceed
sists upon matter without the statute, most safely, by negative and exclusion, to what and matter within the statute.
is affirmative and inclusive.
this statute, and all other statutes, terest in law; and, therefore, Master Haltestat which are helps and inducements to the right Attorney Coke, who read upon this challeigh's understanding of any statute, and yet are no part statute, said well, that there are but of the statute itself.
two rights. 1. The consideration of the case at the com
Jus in re: Jus ad rem. mon law.
2. The consideration of the mischief which the The one is an estate, which is Jus in re: the statute intendeth to redress, as also any other other a demand, which is Jus ad rem: but a use mischief, which an exposition of the statute this is neither: so that in 24 H. VIII. it is way or that way may breed.
said that the saving of the statute of to uses, pl. :0. 3. Certain maxims of the common law, touch- 1 R. III. which saveth any right or interest of ing exnosition of statutes.
entails, must be understood of entails of the pos.
Uribe nature !
The order of it.
3 Rep. 7. Hey. dru's case.
I kep. 121
511 7. 5.
21 H. 7. 6.
session, and not of the part of the use, because mon law, so as the law knoweth it, but protects it a use is no right nor interest. So, again, you not; and, therefore, when the question cometh, see that Littleton's conceit, that a use should whether it hath any being in nature or in conamount to a tenancy at will, whereupon a release science, the law accepteth of it; and therefore might well inure, because of privity, is controlled Litileton's case is good law, that he
by 4 and 15 H. VII., and divers other that had but forty shillings freehold in 5 u.7. 13
books, which say that cestuy que use is use, shall be sworn of an inquest, for punishable in an action of trespass towards the that is ruled secundum dominium naturale, and not
feoffees; only 5 H. V. seemeth to be secundum dominiam legitimum, nam natura domi
at some discord with other books, nus est, qui fructum ex re percipit. And so, no where it is admitted for law, that if there be cestuy doubt, upon subsidies and taxes cestuy gle use of an advowson, and he be outlawed in a que use should have been valued as an
personal action, the king should have owner; so, likewise, if cestuy que use had released the presentment; which case Master his use unto the feoffee for six pounds, or con
Ewens, in the argument of Chudleigh's tracted with a stranger for the like sum, there was case, did seek to reconcile thus: where cestuy no doubt but it was a good condition or contract que use, being outlawed, had presented in his whereon to ground an action upon the case for the own name, there the king should remove his in- money: for a release of a suit in the chancery is a cumbent: but no such thing can be collected good quid pro quo; therefore, to conclude, though
upon the book: and, therefore, I con- a use be nothing in law to yield remedy by course Dy er 12.
ceive the error grew upon this, that be- of law, yet it is somewhat in reputation of law cause it was generally thought, that a use was and in conscience; for that may be something in but a pernancy of profits; and then, again, because conscience which is nothing in law, like as that the law is, that, upon outlaw in a personal action, may be something in law which is nothing in the king shall have the pernancy of the profits, conscience; as, if the feoffees had made a feoffthey took that to be one and the selssame thing ment over in fee, bona fide, upon good consideracestuy que use had, and which the king was en- tion, and, upon a subpæna brought against them, titled unto; which was not so; for the king had had pleaded this matter in chancery, this had remedy in law for his pernancy of the profits, but been nothing in conscience, not as to discharge cestuy que use had none. The books go further, them of damages.
and say, that a use is nothing, as in 2 A second negative fit to be understood is, that
H. VII. det was brought and counted a use is no covin, nor it is no collusion, as the sur leas for years rendering rent, &c. The de- word is now used; for it is to be noted, that fendant pleaded in bar, that the plaintiff nihil where a man doth remove the estate and posses. habuit tempore dimissionis: the plaintiff made a sion of lands or goods, out of himself unto another special replication, and showed that he had a use, upon trust, it is either a special trust, or a general and issue joined upon that; wherefore it appear- trust. eth, 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 pracipe, 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 finis 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 reinseoffed, 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 averinent, 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 ii; 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.
H. 7. 4. 7 6. 7. 11, 12