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revoke; or, he may revoke, so that he assure; | Thomas shall declare with the consent of my lord for you must either make the " so that" to be pre-chief justice? And if it had been thus, so that cedent or void, as I shall tell you anon. And, therefore, the law will rather invert the words than pervert the sense.

But it will be said, that in the cases I put it is left indefinite, when the act last limited shall be performed; and so the law may marshal it as it may stand with possibility; and so if it had been in this case no more but, so that Sir Thomas or John should assure new lands, and no time spoken of, the law might have intended it precedent. But in this case it is precisely put to be at any time within six months after the declaration, and, therefore, you cannot vary in the times.

To this I answer, that the new assurance must be in deed in time after the instrument or deed of the declaration; but, on the other side, it must be time precedent to the operation of the law, by determining the uses thereupon; so it is not to be applied so much to the declaration itself, but to the warrant of the declaration. It shall be lawful, so that, &c. And this will appear more plainly by my second reason, to which now I come; for as for the cavillation upon the word immediately, I will speak to it after.

My second reason, therefore, is out of the use and signification of this conjunction or bond of speech, "so that:" for no man will make any great doubt of it, if the words had been si, if Sir Thomas shall within six months of such declaration convey; but that it must have been intended precedent; yet, if you mark it well, these words ita quod and si, howsoever in propriety the ita quod may seem subsequent, and the si precedent, yet they both bow to the sense.

4 E. 6. Pl. Com. Colthurst's case.

So we see in 4 Edw. VI. Colthurst's case a man leaseth to J. S. a house, si ipse vellet habitare et residens esse; there the word si amounts to a condition subsequent; for he could not be resident before he took the state; and so, via versa may ita quod be precedent, for else it must be idle and void. But I go farther, for I say ita quod, though it be good words of condition, yet more properly it is neither condition, precedent, nor subsequent, but rather a qualification, or form, or adherent to the acts, whereto it is joined, and made part of their essence, which will appear evidently by other cases. For, allow it had been thus, so that the deed of declaration be enrolled within six months, this is all one, as by deed enrolled within six months, as it is said in Digg's case, 42 Eliz. f. 173, that by deed indented to be enrolled is all one with deed indented and enrolled. It is but a modus faciendi, a description, and of the same nature is the ita quod; so, if it had been thus, it shall be lawful for Sir Thomas to declare, so that the declaration be with the consent of my lord chief justice, is it not all one with the more compendious form of penning, that Sir

Digg's case, 42 Eliz. Co. P. 1. f. 173.

Sir John, within six months after such declaration, shall obtain the consent of my lord chief justice, should not the uses have expected? But these, you will say, are forms and circumstances annexed to the conveyance required: why, surely, any collateral matter coupled by the ita quod is as strong? If the ita quod had been, that Sir John Stanhope within six months should have paid my lady one thousand pounds, or entered into bond never more to disturb her, or the like, all these make but one entire idea or notion, how that his power should not be categorical, or simple, at pleasure, but hypothetical, and qualified, and restrained, that is to say, not the one without the other, and they are parts incorporated into the nature and essence of the authority itself.

The third reason is, the justice of the law in taking words so as no material part of the parties' intent perish; for, as one saith, præstat torquere verba quam homines, better wrest words out of place than my Lady Stanhope out of her jointure, that was meant to her. And, therefore, it is elegantly said in Fitzwilliams's case, which I vouched before, though words be contradictory, and, to use the phrase of the book, pugnant tanquam ex diametro; yet the law delighteth to make atonement, as well between words as between parties, and will reconcile them so as they may stand, and abhorreth a vacuum, as well as nature abhorreth it; and, as nature, to avoid a vacuum, will draw substances contrary to their propriety, so will the law draw words. Therefore, saith Littleton, if I make a feoffment reddendo rent to a stranger, this is a condition to the feoffor, rather than it shall be void, which is quite cross; it sounds a rent, it works a condition, it is limited to a third person, it inureth to the feoffor; and yet the law favoureth not conditions, but to avoid a vacuum.

45 E. 3

So in the case of 45 E. III., a man gives land in frank-marriage, the remainder in fee. The frank-marriage is first put, and that can be but by tenure of the donor; yet, rather than the remainder should be void, though it be last placed, the frank-marriage, being but a privilege of estate, shall be destroyed.

So 33 H. VI., Tressham's case; the king granteth a wardship before it fall; good, because it cannot inure by covenant, and if it should not be good by plea, as the book terms it, it were void; so that, no, not in the king's case, the law will not admit words to be void.

So then the intent appears most plainly, that this act of Sir John should be actus geminus, a kind of twine to take back and to give back, and to make an exchange, and not a resumption; and, therefore, upon a conceit of repugnancy, to take the one part, which is the privation of my lady's jointure, and not the other, which is the restitution or compensation, were a thing

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

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

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
So as immedi-
law, but as one compounded act.
ately after the declaration must be understood of
a perfect and effectual declaration, with the
adjuncts and accouplements expressed.

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, | immediately after the declaration, and we would 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 So we see in 49 E. III. f. 11, if a nature, and are expounded more liberally, according to the intent; for with that part the statute man be attainted of felony, that holds of 27 doth not meddle. And, therefore, if the lands of a common person, the king shall have Not question be, whether a bargain and sale upon his year, day, and waste; but when? condition be good to reduce the state back with- before an office found; and yet the words of the out an entry? or whether, if a man make a statute of prærogativa regis are, rex habebit feoffment in fee to the use of John a Style for catalla felonum, et si ipsi habent liberum tenemenyears, the remainder to the right heirs of John a | tum, statim capiatur in manus domini, et rex habebit Downe, this remainder be good or no? these | annum, diem et vastum: and here the word statim cases will follow the grounds of the common is understood of the effectual and lawful time, law for possessions, in point of operation; but so that is, after office found. will it not be in point of exposition.

The case of the
manor of
Odiam.

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. 84.

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49 E. 3, f. 11.

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 setAnd so I conclude tled without any interim. 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 abundanti, 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 The word value is a word well known to the reason. Here is both quantity and quality; nay, law, and therefore cannot be, except it be will-he saith farther, within the same towns. Why, ingly, misunderstood. By the common law marry, it is somewhat to have men's possessions there is upon a warranty a recovery in value. I lie about them, and not dispersed. So it must be put the case, therefore, that I make a feoffment in as much, as good, as near; so plainly doth the fee with warranty of the manor of Dale, being intent appear, that my lady should not be a worth twenty pounds per annum, and then in loser. lease for twenty shillings. The lease expires, [For the point of the notice, it was discharged for that is our case, though I hold it not needful, | by the court.]

THE

JURISDICTION OF THE MARCHES.

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 ground, being either annexed to the ancient councouncil 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 question, 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.

Matter precedent concerning the intent of those that speak the words, and matter subsequent 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.

ties 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 Wales and the marches of the same, &c. with 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 signification 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 time was not reclaimed : and therefore it was necessary for the president and council there to have jurisdiction and command over the English shires; because that by the aid of them, which were undoubted good sub

285

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

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 Cham

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 misde-ber, by the admittance of divers great learned meanors, 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.

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 might 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.

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 violent 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 denominatio 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.

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 So as, upon the whole matter, I conclude that the statute, namely, since 18 E. IV. as the like the word marches in that place, by the natural

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