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the manor of
dition be good to reduce the state back without an of the effectual and lawful time, that is, after office entry? or whether if a man make a feoffment in fee found. to the use of John a Style for years, the remainder So in 2 H. IV. f. 17, it appears that
2 H. 4. & 17. to the right heirs of John a Downe, this remainder by the statute of Acton Burnell, if the be good or no ? these cases will follow the grounds debt be acknowledged, and the day past, that the of the common law for possessions, in point of oper- goods of the debtors shall be sold stalim, in French ation ; but so will it not be in point of exposition. maintenant; yet nevertheless this statim shall not be
For if I have the manor of Dale and the manor understood, before the process of law requisite of Sale lying both in Vale, and I make a lease for passed, that is, the day comprised in the extent. life of them both, the remainder of the manor of So it is said 27 H. VIII. f. 19, by
27 H. & [ 18 Dale, and all other my lands in Vale to John a Style, Audly the chancellor, that the present the remainder of the manor of Sale to John a Downe, tense shall be taken for the future; a fortiori, say this latter remainder is void, because it comes too I, the immediate future tense may be taken for a late, the general words having carried it before to distant future tense; as if I be bound that my son John a Style. But put it by way of use, a man being of the age of twenty-one years shall marry makes a feoffment in fee of both manors, and limits your daughter, and that he be now of twelve years; the use of the manor of Dale, and all other the lands yet this shall be understood, when he shall be of in Vale, to the use of himself, and his wife for her the age of twenty-one years.
And so in our case, jointure, and of the manor of Sale to the use of him. “ immediately after the declaration” is intended
self alone. Now his wife shall have when all things shall be performed, that are coupled The case of
no jointure in the manor of Sale, and so with the said declaration. Odiam. was it judged in the case of the manor But in this I doubt I labour too much ; for no man of Odiam.
will be of opinion, that it was intended that the lady And therefore our case is more strong, being by Stanhope should be six whole months without either way of use, and you may well construe the latter the old jointure or the new; but that the old should part to control and qualify the first, and to make it expect until the new were settled without any isattend and expect : nay, it is not amiss to see the case terim. And so I conclude this course of atonements,
of Peryman, 41 Eliz. Coke, p. 5, f. 84, as Fitz-Williams's case calls it, whereby I hare 41 Eliz. Co. p. 5. f. 84.
where by a custom a livery may ex- proved, that all the words, by a true marshalling of
pect; for the case was, that in the ma the acts, may stand according to the intent of the nor of Porchester, the custom was, that a feoffment parties. of land should not be good, except it were presented I may add tanquam ex abundanti, that if both within a year in the court of the manor, and there clauses do not live together, they must both die ruled that it was but actus inchoatus, till it was pre together; for the law loves neither fractions of sented; now if it be not merely against reason of estates, nor fractions of constructions; law, that so solemn a conveyance as livery, which and therefore in Jermin and Askew's
Askewis case keeps state, I tell you, and will not wait, should ex case, 37 Eliz. a man did devise lands in pect a farther perfection, a fortiori may a convey- tail with proviso, that if the devisee did attempt to ance in use or declaration of use receive a consum- alien, his estate should cease, as if he were natumation by degrees, and several acts. And thus much rally dead. Is it said there, that the words, “as if for the main point.
he were naturally dead," shall be void, and the Now for the objection of the word immediate, it words, that “his estate shall cease," good ? No, but is but light and a kind of sophistry. They say that the whole clause shall be void. And it is all one the words are, that the uses shall rise immediately reason of a so that, as of an as if, for they boih susafter the declaration, and we would have an inter- pend the sentence. position of an act between, namely, that there should So if I make a lease for life, upon condition be be a declaration first, then a new assurance within shall not alien, nor take the profits, shall this be the six months; and lastly, the uses to rise; where- good for the first part, and void for the second ? No, unto the answer is easy; for we have showed before, but it shall be void for both. that the declaration and the new assurance are in the So if the power of declaration of uses had been intent of him that made the conveyance, and like thus penned, that Sir John Stanhope might by his wise in eye of law, but as one compounded act. So deed indented declare new uses, so that the deed as immediately after the declaration must be under were enrolled before the mayor of St. Albans, who stood of a perfect and effectual declaration, with the hath no power to take enrolments : or so that the adjuncts and accouplements expressed.
deed were made in such sort, as might not be made So we see in 49 E. III. f. 11, if a void by parliament: in all these and the like cases 49 E. 3. f. 11.
man be attainted of felony, that holds the impossibility of the last part doth strike upwards, lands of a common person, the king shall have his and infect, and destroy the whole clause, And year, day, and waste: but when? Not before an therefore, that all the words may stand, is the first office found : and yet the words of the statute of and true course; that all the words be void, is the prerogativa regis are, rex habebit catalla felonum, second and probable; but that the revoking part et si ipsi habent liberum tenementum, statim capia- should be good, and the assurance part void, hath tur in manus domini, et rex habebit annum, diem, neither truth nor probability. et vastum :" and here the word statim is understood Now come I to the second point, how this value
should be measured, wherein methinks you are as law, as to bring in this interpretation of value by a ill a measurer of values, as you are an expounder of present arrentation. But this is not worth the speakwords; which point I will divide, first considering ing to in general; that which giveth colour is the what the law doth generally intend by the word special words in the clause of revocation, that the value; and secondly to see what special words may 201. value should be according to the rents then be in these clauses, either to draw it to a value of a answered; and therefore that there should be a corpresent arrentation, or to understand it of a just and respondence in the computation likewise of the retrue value.
compence. But this is so far from countenancing The word value is a word well known to the law, that exposition, as, well noted, it crosseth it; for and therefore cannot be, except it be willingly, mis opposita juxta se posita magis elucescunt :” first, understood. By the common law there is upon a it may be, the intent of Sir Thomas, in the first warranty a recovery in value. I put the case there- clause, was double, partly to exclude any land in fore that I make a feoffment in fee with warranty of demesne, partly knowing the land was double, and the manor of Dale, being worth 201. per annum, and as some say quadruple, better than the rent, he then in lease for 20s. The lease expires, for that is would have the more scope of revocation under his our case, though I hold it not needful, the question 201. value. is, whether upon an eviction there shall not be re But what is this to the clause of recompence ? covered from me land to the value of 201.
first, are there any words "secundum computationem So if.a man give land in frank-marriage then prædictam ” There are none. Secondly, doth the rented at 401. and no more worth; there descendeth clause rest upon the words " similis valoris ?" No, other lands, let perhaps for a year or two for 201. but joineth “ tantum et similis valoris:" confound not but worth 801. shall not the donee be at liberty to predicaments; for they are the mere-stones of reaput this land in hotchpotch ?
son. Here is both quantity and quality ; nay, he So if two parceners be in tail, and they make par- saith farther, within the same towns. Why, marry, tition of lands equal in rent, but far unequal in value, it is somewhat to have men's possessions lie about shall this bind their issues ? By no means; for there them, and not dispersed. So that it must be as is no calendar so false to judge of values as the rent, much, as good, as near ; so plainly doth the intent being sometimes improved, sometimes ancient, some appear, that my lady should not be a loser. times where great fines have been taken, sometimes [For the point of the notice, it was discharged by where no fines; so as in point of recompence you the court.] were as good put false weights into the hands of the
JURISDICTION OF THE MARCHES.
The effect of the first argument of the king's solicitor- it must have some contents and dimension, and that
Now these limits cannot be linea imaginaria, but general,' in maintaining the jurisdiction of
can be no other but the counties adjacent: and for council of the marches over the four shires.
this construction we need not wander out of our own The question for the present is only upon the sta- state, for we see the counties of Northumberland, tute of 32 H. VIII, and though it be a great ques-Cumberland, and Westmoreland, lately the borders tion, yet it is contracted into small room ; for it is upon Scotland. Now the middle shires were combut a true construction of a monosyllable, the word monly called the east, west, and middle marches. march.
To proceed therefore to the intention of those The exposition of all words resteth upon three that made the statute, in the use of this word; I shall proofs, the propriety of the word, and the matter prove that the parliament took it in this sense by precedent, and subsequent.
three several arguments. Matter precedent concerning the intent of those The first is, that otherwise the word should be that speak the words, and matter subsequent touch- idle ; and it is a rule “verba sunt accipienda, ut soring the conceit and understanding of those that tientur affectum :" for this word marches, as is conconstrue and receive them.
fessed on the other side, must be either for the First therefore as to vis termini, the force and counties' marches, which is our sense, or the lordpropriety of the word ; this word marches signifieth ships' marchers, which is theirs ; that is, such lordno more but limits, or confines, or borders, in Latin ships, as by reason of the incursions and infestlimites, or confinia, or contermina ; and thereof was ation of the Welsh, in ancient time, were not under derived at the first marchio, a marquiss, which was the constant possession of either dominion, but like comes limitaneus.
the bateable ground where the war played. Now
if this latter sense be destroyed, then all equivoca- | And again it was necessary to strengthen that tion ceaseth.
court for their better countenance with both jurisThat it is destroyed, appears manifestly by the dictions, as well civil as criminal, for gladius glastatute of 27 H. VIII. made seven years before the dium juvat. statute of which we dispute : for by that statute all The second branch of the king's intention was the lordships' marchers are made shire ground, being to make a better equality of commerce, and intereither annexed to the ancient counties of Wales, or course in contracts and dealings between the subjects to the ancient counties of England, or erected into of Wales and the subjects of England; and this of new counties, and made parcel of the dominion of necessity must comprehend the four shires : for Wales, and so no more marches after the statute of otherwise, if the subject of England had been wrong. 27; so as there were no marches in that sense at ed by the Welsh on the sides of Wales, he might the time of the making of the statute of 34. take his remedy nearer hand. But if the subject of
The second argument is from the comparing of Wales, for whose weal and benefit the statute was the place of the statute, whereupon our doubt riseth, chiefly made, had been wronged by the English in namely, that there shall be and remain a lord pre- any of the shires, he might have sought his remedy sident and council in the dominion of Wales and the at Westminster. marches of the same, &c. with another place of the The third branch of the king's intent was to make same statute, where the word marches is left out; a convenient dignity and state for the mansion and for the rule is, “ opposita juxta se posita magis elu- resiance of his eldest son, when he should be crecescunt." There is a clause in the statute, which ated Prince of Wales, which likewise must plainly gives power and authority to the king to make and include the four shires: for otherwise to have sent alter laws for the weal of his subjects of his domi- primogenitum regis to a government, which without nion of Wales: there the word marches is omitted, the mixture of the four shires, as things then were, because it was not thought reasonable to invest the had more pearl than honour or command; or to have king with the power to alter the laws, which is the granted him only a power of lieutenancy in those subjects' birthright, in any part of the realm of Eng- shires, where he was to keep his state, not adorned land ; and therefore by the omission of the word with some authority civil, had not been convenient. marches in that place, you may manifestly collect So that here I conclude the second part of that I the signification of the word in the other, that is to am to say touching the intention of the parliament be meant of the four counties of England.
precedent. The third argument which we will use is this ; Now touching the construction subsequent, the the council of the marches was not erected by the rule is good, " optimus legum interpres consuetudo;" act of parliament, but confirmed; for there was a for our labour is not to maintain an usage against a president and council long before in E. IV. his time, statute, but by an usage to expound a statute ; for by matter yet appearing; and it is evident upon the no man will say, but the word marches will bear the statute itself, that in the very clause which we now sense that we give it. handle, it referreth twice to the usage,
as hereto This usage or custom is fortified by four notable fore hath been used."
circumstances; first, that it is ancient, and not late This then I infer, that whatsoever was the king's or recent; secondly, it is authorized, and not popular intention in the first erection of this court, was like. or vulgar; thirdly, that it hath been admitted and wise the intention of the parliament in the establish- quiet, and not litigious or interrupted; and fourthly, ing thereof, because the parliament builded upon an when it was brought in question, which was but old foundation.
once, it hath been affirmed judicio controverso. The king's intention appeareth to have had three For the first, there is record of a president and branches, whereof every of them doth manifestly council, that hath exercised and practised jurisdiccomprehend the four shires.
tion in these shires, as well sixty years before the The first was the better to bridle the subject of statute, namely, since 18 E. IV. as the like number Wales, which at that time was not reclaimed; and of years since : so that it is Janus bifrons, it hath therefore it was necessary for the president and a face backward from the statute, as well as forwards. council there to have jurisdiction and command over For the second, it hath received these allowances the English shires; because that by the aid of them, by the practice of that court, by suits originally comwhich were undoubted good subjects, they might the menced there, by remanding from the courts of better govern and suppress those that were doubtful Westminster, when causes within those shires have subjects.
been commenced here above; sometimes in chanAnd if it be said, that it is true, that the four cery, sometimes in the star-chamber, by the admitshires were comprehended in the commission of tance of divers great learned men and great judges, oyer and terminer, for the suppression of riots and that have been of that council and exercised that misdemeanors, but not for the jurisdiction of a court jurisdiction : as at one time Bromley, Morgan, and of equity; to that I answer, that their commission Brook, being the two chief justices, and chief baron, of oyer and terminer was but gladius in vagina, for and divers others; by the king's learned council, it was not put in practice amongst them; for even in which always were called to the penning of the punishment of riots and misdemeanors, they proceed king's instructions; and lastly, by the king's instrucnot by their commission of oyer and terminer by way tions themselves, which though they be not always of jury, but as a council by way of examination. extant, yet it is manifest that since 17 H. VIII,
when princess Mary went down, that the four theirs common and frequent: and whereas we show shires were ever comprehended in the instructions, it but in a vulgar use and acceptation, they show either by name, or by that that amounts to so much. theirs in a legal use in statutes, authorities of books, So as it appears that this usage or practice hath not and ancient records. been an obscure custom practised by the multitude, They said farther, that the example we brought which is many times erroneous, but authorized by of marches upon Scotland, was not like, but rather the judgment and consent of the state: for as it is contrary; for they were never called marches of vera vox to say, “maximus erroris populus magister;" | Scotland, but the marches of England: whereas the so it is dura vox to say, “ maximus erroris princeps statute of 34 doth not speak of the marches of Engmagister."
land, but of the marches of Wales. For the third, it was never brought in question They said farther, that the county of Worcester till 16 Eliz. in the case of one Wynde.
did in no place or point touch upon Wales, and And for the fourth, the controversy being moved therefore that county could not be termed marches. in that case, it was referred to Gerrard attorney, and To the second they produced three proofs ; first, Bromley solicitor, who was afterwards chancellor of some words in the statute of 32 H. VIII. where the England, and had his whole state of living in Shrop- statute, providing for a form of trial for treason comshire and Worcester, and by them reported to the mitted in Wales, and the marches thereof, doth use lords of the council in the star-chamber, and upon that word, which was in time after the statute of 27; their report decreed, and the jurisdiction affirmed. whereby they prove the use of the word continued.
Lastly, I will conclude with two manifest badges The second proof was out of two places of the and tokens, though but external yet violent in de statute, whereupon we dispute, where the word monstration, that these four shires were understood marches is used for the lordships' marchers. by the word marches ; the one the denomination of The third proof was the style and form of the that council, which was ever in common appellation commission of oyer and terminer even to this day, termed and styled the council of the marches, or in which run to give power and authority to the presithe marches, rather than the council of Wales, or in dent and council there, infra principalitat. Walliæ, Wales, and denominatio est a digniore. If it had been and infra the four counties by name, with this clause intended of lordships' marchers, it had been as if farther, “ et marchias Walliæ eisdem comitatibus one should have called my lord mayor, my lord adjacent :” whereby they infer two things strongly, mayor of the suburbs. But it was plainly intended the one that the marches of Wales must needs be a of the four English shires, which indeed were the distinct thing from the four counties; the other that more worthy.
the word marches was used for the lordships' And the other is of the perpetual resiance and marchers long after both statutes. mansion of the council, which was evermore in the They said farther, that otherwise the proceeding, shires; and to imagine that a court should not have which had been in the four new erected counties of jurisdiction where it sitteth, is a thing utterly impro- Wales by the commission of oyer and terminer, by bable, for they should be tanquam piscis in arido. force whereof many had been proceeded with both for
So as upon the whole matter, I conclude that the life, and otherways, should be called in question, as word marches in that place by the natural sense, and coram non judice, insomuch as they neither were true intent of the statute, is meant of the four shires. part of the principality of Wales, nor part of the The effect of that, that was spoken by serjeant Hut- word marches, or not at all.
four shires; and therefore must be contained by the ton and serjeant Harris, in answer of the former
For the third head, they did insist upon the statute argument, and for the excluding of the jurisdic-of 34, and upon the preamble of the same statute. tion of the marches in the four shires.
The title being an act for certain ordinances in That, which they both did deliver, was reduced the king's Majesty's dominion and principality of to three heads :
Wales; and the preamble being for the tender zeal The first to prove the use of the word marches for and affection that the king bears to his subjects of lordships' marchers.
Wales; and again at the humble suit and petition The second to prove the continuance of that use of his subjects of Wales: whereby they infer that of the word, after the statute of 27, that made the the statute had no purpose to extend or intermeddle lordships' marchers shire-grounds; whereupon it was with any part of the king's dominions or subjects inferred, that though the marches were destroyed in but only within Wales. nature, yet they remained in name.
And for usage and practice, they said, it was The third was some collections they made upon nothing against an act of parliament. the statute of 34; whereby they inferred, that that And for the instructions, they pressed to see the statute intended that word in that signification. instructions immediately after the statute made.
For the first, they did allege divers statutes be And for the certificate and opinions of Gerrard fore 27 Hen. VIII. and divers book-cases of law in and Bromley, they said they doubted not, but that print, and divers offices and records, wherein the if it were now referred to the attorney and solicitor, word marches of Wales was understood of the lord- they would certify as they did. ships' marchers.
And lastly, they relied, as upon their principal They said farther, and concluded, that whereas we strength, upon the precedent of that, which was show our sense of the word but rare, they show | done of the exempting of Cheshire from the late
jurisdiction of the said council; for they said, that then it had been clear and plain; and what differfrom 34 of Hen. VIII. until 11 of queen Eliz. the ence between the banks of the sea and the banks court of the marches did usurp jurisdiction upon against the sea ? So that he took this to be but a that county; being likewise adjacent to Wales, as toy or cavillation, for that phrases of speech are the other four are ; but that in the eleventh year “ ad placitum, et recipiunt casum." of queen Elizabeth aforesaid, the same being ques As to the reason of the map, that the county of tioned at the suit of one Radforde, was referred to Worcester doth no way touch upon Wales, it is true; the lord Dyer, and three other judges, who, by their and I do find when the lordships' marchers were certificate at large remaining of record in the chan- annexed, some were laid to every other of the three cery, did pronounce the said shire to be exempted, shires, but none to Worcester. And no doubt this and that in the conclusion of their certificate they imboldened Wynde to make the claim to Worcester, gave this reason, because it was no part of the prin- which he durst not have thought on for any of the cipality or marches of Wales. By which reason, other three. But it falls out well that that, which they say, it should appear their opinion was, that is the weakest in probability, is strongest in proof; the word marches could not extend to counties adja- for there is a case ruled in that more than in the cent. This was the substance of their defence. rest. But the true reason is, that usage must over
rule propriety of speech; and therefore if all comThe reply of the king's solicitor to the arguments
missions, and instructions, and practices, have of the two serjeants.
coupled these four shires, it is not the map that will Having divided the substance of their arguments, sever them. ut supra, he did pursue the same division in his re To the second head he gave this answer. First, ply, observing nevertheless both a great redundancy he observed in general that they had not showed and a great defect in that which was spoken. For one statute, or one book-case, or one record, the touching the use of the word marches, great labour commissions of oyer and terminer only excepted, had been taken, which was not denied : but touch- wherein the word marches was used for lordships' ing the intent of the parliament, and the reasons to marchers since the statute of 34. So that it is evi. demonstrate the same, which were the life of the dent, that as they granted the nature of those question, little or nothing had been spoken. marches was destroyed and extinct by 27 ; so the
And therefore as to the first head, that the word name was discontinued soon after, and did but marches had been often applied to the lordships' remain a very small while, like the sound of a bell. marchers, he said it was the sophism which is called after it hath been rung; and as indeed it is usual sciomachia, fighting with their shadows; and that when names are altered, that the old name, which the sound of so many statutes, so many printed is expired, will continue for a small time. book-cases, so many records, were nomina magna, Secondly, he said, that whereas they had made but they did not press the question ; for we grant the comparison, that our acceptation of the word that the word marches had significations, sometimes was popular, and theirs was legal, because it was for the counties, sometimes for the lordships' extant in book-cases, and statutes, and records, they marchers, like as Northampton and Warwick are must needs confess that they are beaten from that sometimes taken for the towns of Northampton and hold : for the name ceased to be legal clearly by Warwick, and sometimes for the counties of North the law of 27, which made the alteration in the ampton and Warwick. And Dale and Sale are thing itself, whereof the name is but a shadow; and sometimes taken for the villages or hamlets of Dale if the name did remain afterwards, then it was neiand Sale, and sometimes taken for the parishes of ther legal, nor so much as vulgar, but it was only Dale and Sale: and therefore that the most part of by abuse, and by a trope or calachresis. that they had said, went not to the point.
Thirdly, he showed the impossibility how that To that answer, which was given to the example signification should continue, and be intended by of the middle shires upon Scotland, it was said, it the statute of 34. For if it did, it must be in one was not ad idem; for we used it to prove that the of these two senses, either that it was meant of the word marches may and doth refer to whole coun- lordships' marchers made part of Wales, or of the ties; and so much it doth manifestly prove; neither lordships' marchers annexed to the four shires of can they deny it. But then they pinch upon the England. addition, because the English counties adjacent For the first of these, it is plainly impugned by upon Scotland are called the marches of England, the statute itself: for the first clause of the statute and the English counties adjacent upon Wales are doth set forth that the principality and dominion of called the marches of Wales ; which is but a differ- Wales shall consist of twelve shires : wherein the ence in phrase; for sometimes limits and borders four new-erected counties, which were formerly have their names of the inward country, and some lordships' marchers, and whatsoever else was lordtimes of the outward country ; for the distinction of ships' marchers annexed to the ancient counties of exclusirè and inclusive is a distinction both in time Wales, is comprehended; so that of necessity all and place; as we see that which we call this day that territory or border must be Wales: then followfortnight, excluding the day, the French and the eth the clause immediately, whereupon we now diflaw-phrase calls this day fifteen days, or quindena, fer, namely, that there shall be and remain a preincluding the day. And if they had been called the sident and council in the principality of Wales, and marches upon Wales or the marches against Wales, the marches of the same; so that the parliament