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 as 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.

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

For

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 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. 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 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 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 incorpo

rated 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 Fitz-Williams'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. 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.

45 E. 3.

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 construction.

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, 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 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 nature, and are expounded more liberally according to the intent; for with that part the statute of 27 doth not meddle. And therefore if the question be, whether a bargain and sale upon con

The case of the manor of Odiam.

41 Eliz. Co. p. 5. f. 84.

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 inchoutus, 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 may a conveyance in use or declaration of use 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 immediately after the declaration, and we would 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 law, but as one compounded act. So as immediately after the declaration must be understood of a perfect and effectual declaration, with the adjuncts and accouplements expressed.

:

So we see in 49 E. III. f. 11, if a

49 E. 3. f. 11. man be attainted of felony, that holds lands of a common person, the king shall have his year, day, and waste: but when? Not before an office found and yet the words of the statute of prærogativa regis are, rex habebit catalla felonum, et si ipsi habent liberum tenementum, statim capiatur in manus domini, et rex habebit annum, diem, et vastum:" and here the word statim is understood

of the effectual and lawful time, that is, after office found.

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 stalim, 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.

So it is said 27 H. VIII. f. 19, by 27 H. 8. f. 19. Audly 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 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.

Jermin and Askew's case.

I may add tanquam ex abundanti, that if both clauses do not live together, they must both die together; for the law loves neither fractions of estates, nor 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 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 assurance part void, hath neither truth nor probability.

Now come I to the second point, how this value

The word value is a word well known to the law, and therefore cannot be, except it be willingly, misunderstood. By the common law there is upon a warranty a recovery in value. I put the case therefore that I make a feoffment in fee with warranty of the manor of Dale, being worth 201. per annum, and then in lease for 20s. 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 201.

So if a man give land in frank-marriage then rented at 40%. and no more worth; there descendeth other lands, let perhaps for a year or two for 207. but worth 801. 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 recompence you were as good put false weights into the hands of 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 recompence. 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 20. value.

But what is this to the clause of recompence? 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 reason. Here is both quantity and quality; nay, he saith farther, within the same towns. Why, marry, it is somewhat to have men's possessions lie about them, and not dispersed. So that 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.]

The effect of the first argument of the king's solicitorgeneral, in maintaining the jurisdiction of the council 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 marquiss, which was comes limitaneus.

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, 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.

The first is, that otherwise the word should be idle; and it is a rule "verba sunt accipienda, ut sortientur affectum :" 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

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 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 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 the 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 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 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."

66

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 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 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 misdemeanors, they proceed not by their commission of oyer and terminer by way of jury, but as a council by way of examination.

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 necessity 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 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 for 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 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 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 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 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-chamber, by the admittance of divers great learned men and great judges, that have been of that council and exercised that jurisdiction: 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 H. VIII.