This clausula derogatoria is by the common practical term called clausula non obstante, and is of two sorts, de præterito, et de futuro, the one weakening and dis-annulling any matter past to the contrary, the other any matter to come; and this latter is that only whereof we speak.

This clausula de non obstante de futuro, the law judgeth to be idle and of no force, because it doth deprive men of that which of all other things is most incident to human condition, and that is alteration or repentance.

And therefore if I make my will, and in the end thereof do add such like clause [Also my will is, that if I shall revoke this present will, or declare any new will, except the same shall be in writing, subscribed with the hands of two witnesses, that such revocation or new declaration shall be utterly void; and by these presents I do declare the same not to be my will, but this my former will to stand, any such pretended will to the contrary notwithstanding], yet nevertheless this clause or any the like never so exactly penned, and although it do restrain the revocation but in circumstance and not altogether, is no force or efficacy to fortify the former will against the second; but I may by parole without writing repeal the same will, and make a new one.

So if there be a statute made that no sheriff shall continue in his office above a year, and if any patent be made to the contrary, it shall be void; and if there be any clausula de non obstante contained in such patent to dispense with this present act, that such clause also shall be void; yet nevertheless a patent of the sheriff's office made by the king for term of life, with a non obstante, will be good in law contrary to such statute, which pretendeth to exclude non obstantes; and the reason is, because it is an inseparable prerogative of the crown to dispense with politic statutes, and of that kind; and then the derogatory clause hurteth not.

So if an act of parliament be made, wherein there is a clause contained that it shall not be lawful for the king, by authority of parliament, during the space of

seven years, to repeal and determine the same act, this is a void clause, and the same act may be repealed within the seven years; and yet if the parliament should enact in the nature of the ancient ler regia, that there should be no more parliaments held, but that the king should have the authority of the parliament; this act were good in law, quia potestas suprema seipsum dissolvere potest, ligare non potest: for it is in the power of a man to kill a man, but it is not in his power to save him alive, and to restrain him from breathing or feeling; so it is in the power of a parliament to extinguish or transfer their own authority, but not, whilst the authority remains entire to restrain the functions and exercises of the same authority.

So in 28 of K. H. VIII. chap. 17. there was a statute made, that all acts that passed in the minority of kings, reckoning the same under the years of twentyfour, might be annulled and revoked by their letters patent when they came to the same years; but this 14 El. Dy. act in the first of K. Ed. VI. who was then between 313. the years of ten and eleven, cap. 11. was repealed, and a new law surrogate in place thereof, wherein a more reasonable liberty is given; and wherein, though other laws are made revocable according to the provision of the former law with some new form prescribed, yet that very law of revocation, together with Pl. Co. 563. pardons, is made irrevocable and perpetual, so that there is a direct contariety and repugnancy between these two laws; for if the former stands, which maketh all later laws during the minority of kings revocable without exception of any law whatsoever, then that very law of repeal is concluded in the generality, and so itself made revocable: on the other side, that law making no doubt of the absolute repeal of the first law, though itself were made during minority, which was the very case of the former law in the new provision which it maketh, hath a precise exception, that the law of repeal shall not be repealed.

But the law is, that the first law by the impertinency of it was void ab initio et ipso facto without repeal, as if a law were made, that no new statute

should be made during seven years, and the same statute be repealed within the seven years, if the first statute should be good, then no repeal could be made thereof within that time; for the law of repeal were a new law, and that were disabled by the former law; therefore it is void in itself, and the rule holds, perpetua lex est, nullam legem humanam ac positivam perpetuam esse; et clausula quæ abrogationem excludit initio non valet.

Neither is the difference of the civil law so reasonable as colourable, for they distinguish and say that a derogatory clause is good to disable any later act, except you revoke the same clause before you proceed to establish any later disposition or declaration; for they say, that clausula derogatoria ad alias sequentes voluntates posita in testamento, viz. si testator dicat quod si contigerit eum facere aliud testamentum non vult illud valere, operatur quod sequens dispositio ab illa clausula reguletur, et per consequens quod sequens dispositio ducatur sine voluntate, et sic quod non sit attendendum. The sense is, that where a former will is made, and after a later will, the reason why, without an express revocation of the former will, it is by implication revoked, is because of the repugnancy between the disposition of the former and the later.

But where there is such a derogatory clause, there can be gathered no such repugnancy: because it seemeth the testator had a purpose at the making of the first will to make some shew of a new will, which nevertheless his intention was should not take place : but this was answered before; for if that clause were allowed to be good until a revocation, then could no revocation at all be made, and therefore it must needs be void by operation of law at first. Thus much of clausula derogatoria.

REGULA XX.

Actus inceptus, cujus perfectio pendet ex voluntate partium, revocari potest; si autem pendet ex voluntate tertiæ personæ, vel ex contingenti, revocari non potest.

IN acts which are fully executed and consummate, the law makes this difference, that if the first parties have put it in the power of a third person, or of a contingency, to give a perfection to their arts, then they have put it out of their own reach and liberty; and therefore there is no reason they should revoke them but if the consummation depend upon the same consent, which was the inception, then the law accounteth it in vain to restrain them from revoking of it; for as they may frustrate it by omission and non feisance, at a certain time, or in a certain sort or circumstance, so the law permitteth them to dissolve it by an express consent before that time, or without

that circumstance.

13 H. 7.

Therefore if two exchange land by deed, or without F. N. Br. deed, and neither enter, this may make a revocation 36. or dissolution of the same exchange by mutual con- 13, 14. sent, so it be by deed, but not by parole; for as much as the making of an exchange needeth no deed, because it is to be perfected by entry, which is a ceremony notorious in the nature of livery; but it cannot be dissolved but by deed, because it dischargeth that which is but title.

So if I contract with I. D. that if he lay me into my 36 Eliz. cellar three tuns of wine before Mich. that I will bring to his garner twenty quarters of wheat before Christmas, before either of these days the parties may by assent dissolve the contract; but after the first day there is a perfection given to the contract by action on the one side, and they may make cross releases by deed or parole, but never dissolve the contract; for there is a difference between dissolving the contract, and release or surrender of the thing contracted for: as if lessee for twenty years make a lease for ten years, and after

11 H. 7. 19.

2 R. 2.

he take a new lease for five years, he is in only of his lease for five years, and yet this cannot inure by way of surrender: for a petty lease derived out of a greater cannot be surrendered back again, but it inureth only by dissolution of contract; for a lease of land is but a contract executory from time to time of the profits of the land, to arise as a man may sell his corn or his tithe to spring or to be perceived for divers future years.

But to return from our digression: on the other side, if I contract with you for cloth at such a price as I. S. shall name; there if I. S. refuse to name, the contract is void; but the parties cannot discharge it, because they have put it in the power of the third person to perfect.

So if I grant my reversion, though this be an imperfect act before atturnment; yet because the atturnF. atturn- ment is the act of a stranger, this is not simply revocable, but by a policy or circumstance in law, as by levying a fine, or making a bargain and sale, or the like.

ment. 8.

31 Ed. 1. Fitz. Q.

Imp. 185.

So if I present a clerk to the Bishop, now can I not revoke this presentation, because I have put it out of 14 Ed. 4. 2. myself, that is, in the Bishop, by admissus, to perfect 14 Ed. 4.2. my act begun.

38 Ed.3.35.

The same difference appeareth in nominations and elections; as if I enfeoff I. S. upon condition to enfeoff such a one as I. D. shall name within a year, and I. D. name I. B. yet before the feoffment, and within the year, I. D. may countermand his nomination, and name again, because no interest passeth out of him. But if I enfeoff I. S. to the use of such a one as I. D. shall name within a year, then if I. D. name I. B. it is not revocable, because the use passeth presently by operation of law.

So in judicial acts the rule of the civil law holdeth, sententia interlocutoria revocari potest, definitiva non potest; that is, that an order may be revoked, but a judgment cannot; and the reason is, because there is a title of execution or of bar given presently unto the party upon judgment, and so it is out of the judge to revoke, in courts ordered by the common law.