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case. leaseth to J. S. a house, si ipse vellet habitare, et re~
sidens esse ; there the. word si amounts to a condi-
tion 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 or 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 inrolled within six
months, this is all one, as by deed inrolled within six



*2 g |ii S 7 C co' mont H as it is sa id in Digg's case > 42 Eliz. f. 173. that
p. i. f. J73. by deed indented to be inrolled is all one with deed in-
dented and inrolled. 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 Thomas shall
declare with the consent of my lord chief justice? And
if it had been thus, so that 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 1000/. or entered
into bond never more to disturb her, or the like, all
these make but one intire idea or notion, how that his
power should not be categorical, or simple at pleasure,
but hypothetical, and qualified, and restrained, that is to



The Case of Revocation of Uses. 251

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 pe-
rish: for, as one saith, pncstat 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 Fitz-Wil-
liams's case, which I vouched before, though words be
contradictory, and, to use the phrase of the book,
pugnajit 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 sub-
stances contrary to their propriety, so will the law draw
words. Therefore saith Littleton, if I make a feoff-
ment 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.

So in the case of 45 E. III. a man gives land in45E.s.
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 be-
ing 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 ex-
change, 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,



252 The Case of Revocation of Uses.

which is the restitution or compensation were a
thing utterly injurious in matter, and absur in con-
struction.

The fourth reason is out of the nature of th convey-
ance, which is by way of use, and therefor :>u;ht to
be construed more favourably according to :e intent,
and not literally or strictly : for although it c said in
Frene and Dillon's case, and in Fitz-AVilliais's case,
that it is safe so to construe the statute of 2: I. VIII.
as that uses may be made subject to the rics of the
common law, which the professors of the lavv.o know,
and not leave them to be extravagant and Tegular;
yet if the late authorities be well marked, an ;hc rea-
son of them, you shall find this difference, tht uses in
point of operation are reduced to a kind of cnformity
with the rules of the common law, but the in point
of exposition of words, they retain somewhr of their
ancient nature, and are expounded more librally ac-
cording to the intent - y for with that part the catute of
27 doth not meddle. And therefore if the [uestion
be, whether a bargain and sale upon conditio be good
to reduce the state back without an entry or whe-
ther if a man make a feoffment in fee to th use of
John a Style for years, the remainder to therht heirs
of John a Downe, this remainder be goo or no ?
these cases will follow the grounds of the ommon
law for possessions, in point of operation ; bi so will
it not be in point of exposition.

For if I have the manor of Dale and the lanor of
Sale lying both in Vale, and I make a lease :r life of
them both, the remainder of the manor of L)le, and
all other my lands in Vale to John a Style the re-
mainder of the manor of Sale to John a Dowe, this
latter remainder is void, because it comes too ate, the
general words having carried it before to Johia Style.
But put it by way ot use a man makes a feoinent in
fee of both manors, and limits the use of the lanor of
Dale, and all other the lands in Vale,, to the us, of him-
self, and his wife for her jointure, and of the lanor of
The ca<eofSale to the use of himself alone. Now his ufe shall
S! have no jointure in the manor of Sale, and 3 was it
judged in the case of the manor of Odiam,



lie Case of Revocation of Uses. 253

And thc^fore our case is more strong, being by
way of u nd you may well construe the latter part
to control nd qualify the first, and to make it attend
and expec: nay, it is not amiss to see the case of
Peryman \ Eliz. Coke p. 5. f. 84. where by a custom 41 Eliz. Co.
a livery mv expect; for the case was, that in the p<J *' tS4 "
manor of rrtchestcr, the custom was, that a feoff-
ment of Ian should not be good, except it were pre-
sented wittn a year in the court of the manor, and
there ru I it was but aclus inchoatits, till it was

presented ; ow if it be not merely against reason of
law, that 3 solemn a conveyance as livery, which
keeps state I tell you, and will not wait, should ex-
pect a farthr perfection, a fortiori may a conveyance
in use or dciaration of use receive a consummation by
degrees, an several acts. And thus much for the
main point.

Now for ic objection of the word immediate^ it is
but light an a kind of sophistry. They say that the
words are, lat the uses shall rise immediately after
the declaratm, and we would have an interposition
of an act btween, namely, that there should be a
declaration r;t, then a new assurance within the six
months ; an lastly, the uses to rise : where unto the
answer is eav ; for we have shewed before, that the
declaration r.d the new assurance arc in the intent of
him that mac the conveyance, and likewise in eye of
law, but as ne compounded act. So as immediately
after the <Y (ration must be understood of a perfect
and effectual declaration, with the adjuncts and accou*
plements exressed.

So we sec i 49 E. III. f. 1 1. if a man be attainted of 49 E.S.C
felony, that holds lands of a common person, the 11 '
King shall live his year, day and waste : but when ?
Not before a office found : and yet the words of the
statute of prrogath'a rcgis are, rex habehit aitaila
felomnn, ct i ipsi habent liberum teneinentiim, stall in
capiatur in ninus tfomini, et rex habebit annum, diem
et rastuin : ad here the word stathn is understood
of the c fleet al and lawful time, that is, after office
found.



254* Th e Case of Revocation of Uses.

2H.4f. 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 maintennnt ; yet nevertheless this
statim shall not be understood, before the process of
law requisite passed, that is, the day comprised in the
extent.

s7H.8f. So it is said 27 H. VIII. f. 19. by Audley the chan-
cellor, that the present tense shall be taken for the fu-
ture ; 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 Fitz-
Williams's case calls it,, whereby I have proved, that
all the words, by a true marshalling of the acts, may
stand according to the intent of the parties.

I may add tanquam ex abundant i, that if both
clauses do not live together, they must both die toge-
ther ; for the law loves neither fractions of estates, nor
d fractions of constructions : and therefore in Jermin and
Askew'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 Case of Revocation of Uses. 255

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 in-
rolled before the mayor of St. Albans, who hath no
power to take inrpllments ; r so that the deed were
made in such sort, as might not be made void by par-
liament : in all these and the like cases the impossibi-
lity 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 arren-
tation, or to understand it of a just and true value.

The word value is a word well known to the law,
and therefore cannot be, except it be willingly, mis-
understood. By the common law there is upon a
warranty a recovery in value. I put the case there-
fore that I make a feoffment in fee with warranty of
the manor of Dale, being worth 20/. per annum y and
then in lease for 20y. The lease expires, for that is
our case, though I hold it not needful, the question is,
whether upon an eviction there shall not be recovered
from me land to the value of 20/.

So if a man give land in frank-marriage then rented
at 40/. and no more worth ; there descendeth other
lands, lett perhaps for a year or two for 20/. but worth
80/. shall not the donee be at liberty to put this land in,
hotchpotch?

So if two parceners be in tail, and they make parti-
tion of lands equal in rent, but far unequal in value,
shall this bind their issues r By no means j for there is



256 The Case of Revocation of Uses.

no calendar so false to judge of values as the rent, be-
ing sometimes improved, sometimes ancient, some-
times 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 20/. 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
elitcescunt : 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
20/. value.

But what is this to the clause of recompense ; first,
are there any words secnndum computationem pnedic-
tam ? There are none. Secondly, doth the clause rest
upon the words simills valoris f No, but joineth tan-
turn c.t simills valoris : confound not predicaments ;
for they are the mere-stones of reason. Here is both
quantity and quality ; nay he saith farther within the
same towns. Why, marry, it is somewhat to have
mens 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.

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



[ 257 ]



THE



JURISDICTION OF THE MARCHES,



The effect of the first argument of the Kings Solicitor-
general , in maintaining the jurisdiction of the Council
of the Marches over the four Shires.

JL HE question for the present is only upon the sta-
tute 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 pre-
cedent, 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 pro-
priety of the word-, this word marches signilieth no
more but limits, or confines, or borders, in Latin
limites, or con/hu'a, or confer miua ; and thereof was
derived at the first march io, a marquiss, which W 7 as
comes limit aneus.

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, Cumber-
land, and Westmoreland, lately 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.

VOL. IV. S



77/ Jurisdiction of the Marches.

The first is, that otherwise the word should be idle ;
and it is a rule, verb a siuit accipienda, ut sortientur
effectual : 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 marches, which is
theirs ; that is, such lordships, as by reason of the in-
cursions and infestation of the Welsh, in ancient time,
were not under the constant possession of either do-
minion, 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 sta-
tute of 27 H. VIII. made seven years before the sta-
tute of which we dispute : for by that statute all the
lordships marchers are made shire 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 presi-
dent and council in the dominion of Wales and the
marches of the same, etc. with another place of the
same statute, where the word marches is left out ; for
the rule is, opposita jitxta se posi'a magis elucescunt.
There is a clause in the statute, which gives pow r er
and authority to the King to make and alter laws
for the w^eal 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 birth-
right, in any part of the realm of E?igtand i and
therefore by the omission of the word marches in
that place, you may manifestly collect the significa-
tion of the word in the other, that is to be meant
of the four counties of England.

The third argument which we will use is this : the
council of the marches was not erected by the act of



The Jurisdiction of the Marches. 259

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 it-
self, 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 like-
wise the intention of the parliament in the establish-
ing 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 com-
prehend 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 Eng-
lish shires ; because that by the aid of them, which
were undoubted good subjects, they might the better
govern and suppress those that were doubtful subjects.

And if it be said, that it is true, that the four shires
were comprehended in the commission of oyer and
terminer, for the suppressing of riots and misdemean-
ors, but not for the jurisdiction of a court of equity ; to
that I answer, that their commission of oyer and ter-
imner 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 termincr 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 jurat.

The second branch of the King's intention was to
make a better equality of commerce, and intercourse
in contracts and dealings between the subjects of
Wales and the subjects of England ; and this of ne-
cessity must comprehend the four shires : for otherwise,
if the subject of England had been wronged by the
Welsh on the sides of Wales, he might take his remedy
nearer hand. But if the subject of Wales, for whose

s 2



260 The Jurisdiction of I he Marches.

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 re-
siance 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 'primogeni*
turn Regis to a government, which without the mix-
ture 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 au-
thority 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, Gptimus legum interpris consiietudo ; for our
labour is not to maintain an usage against a statute,
but by an 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 cir-
cumstances ; first, that it is ancient and not late or
recent ; secondly, it is authorised 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 judicio 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 number of years
since : so that it is Janus bifrons, it hath a face back*
ward from the statute, as well as forwards.

For the second, it hath received these allowances
by the practice of that court, by suits originally com-
menced there, by remanding from the courts oi West-
minster, when causes within those shires have been
commenced here above ; sometimes in chancery,
sometimes in the star-chamber, by the admittance



The Turisdlction of the Marches. 261

of divers great learned men and great judges, that
have been of that council and exercised that ju-
risdiction ; as at one time Bromley, Morgan, and
Brook, 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 always extant,
yet it is manifest that since 17 II. VIII. when Prin-
cess 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 authorised by the judgment and
consent of the state: for as it is rera ro.v to say, max-
imus error is popitlt/s magisfcr ; so it is dura vox to say,
maxiinus erroris prihceps magixter.

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 stale of living in Shrop-
shire 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 demon-
stration, 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 stiied the council of the marches, or in the -marches,
rather than the council of Wales, or in Wales, and
denominatiq est. (i digniore. If it had been intended
of lordships marchers, 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 weie the more worthy.



Online LibraryFrancis BaconThe works of Francis Bacon, baron of Verulam, viscount St. Alban, and lord high chancellor of England (Volume 4) → online text (page 22 of 46)