28 Ed. 3. c. 7.

42 Ed. 3. c. 9.

de futuro; the one weakening and disannulling any matter past to the contrary, the other any matter to come: and this latter is that only whereof we speak.

This clausula 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.

Therefore if I make my will, and in the end thereof do add such like clause, " Also my will is, 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 of 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.

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 non obstante contained in such patent to dispense with the present act, that such clause also shall be void; " yet nevertheless a patent of a 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 preBr. Tit. Pat. tendeth 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.

pl. 109.

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during the space of seven years, to repeal and determine the same act; this is a void clause, and the same act may be repealed within the years. And yet if the parliament should enact in the nature of the ancient lex 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

1 The Camb. MS. adds: "or, è converso, if the King by Parliament were to enact to alter the state, and to translate it from a monarchy to any other form; both these

law; quia potestas suprema seipsum dissolvere potest, ligare non potest: for as it is in the power of 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 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 years of twenty-four, might be annulled and revoked by their letters patents when they came to the same years; but this act in the first of K. Ed. VI. (who was then between the Dy. f. 313. years of ten and eleven,) cap. 11. was repealed, and a new law surrogate in place thereof; wherein a more reasonable liberty was 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 pardons, is made irrevocable and perpetual. So that there is a direct contrariety and repugnancy between these two laws: for if the former stands, which maketh all latter 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 the 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

acts were good." It is, I think, not unimportant to observe, that this subsequently cancelled position stands in this MS. along with the immediately preceding one recognising an "inseparable prerogative" of the crown to dispense with a certain ill-defined class of statutes. It seems clear that this prerogative is conceived of as merely an "inseparable" part of the actual constitution of the realm, to be ascertained and defined by the regular tribunals, and not, as was maintained by some at that or a later day, derived from a source transcending all constitutions, into which it was profanity for a court to enquire.

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 latter act, except you revoke the same clause before you proceed to establish any latter disposition or declaration for they say, 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 latter 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 latter; 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: 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 that are not 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 acts, 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 vain to restrain them from revoking it: for as they may frustrate it by omission and non feasance 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.

Therefore if two exchange land by deed or without deed, and neither enter; they may make a revocation or dissolution of the same exchange by mutual consent, so it be by deed: but not by parole; forasmuch 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. if he lay me into my cellar three [F. 36 Eliz tuns of wine before Michaelmas, that I will bring into 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. As if lessee for twenty years make a lease for ten years, and after he1 take a 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 a third person to perfect.

So if I grant my reversion; though this be an imperfect act before atturnment, yet, because the atturnment 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.

So if I present a clerk to the bishop; now can I not revoke this presentation, because I have put it out of myself, that is, in the bishop, by admission to perfect my act begun.

1 i. e. I suppose, the sub-lessee. The MSS. vary considerably.

2 The cases by no means establish the position in the text.

[Fitz. Tit. Qu. 11 Ed. 4. f. 2.

Imp. 185.

pl 2.

38 Ed. 3. f. 35, 36.12

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, an order may be revoked, but a judgment cannot: and the reason is, because there is 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.

Brook, Tit.
Gard. pl. 93.

REGULA XXI.

Clausula vel dispositio inutilis per præsumptionem remotam vel causam ex post facto non fulcitur.

Clausula vel dispositio inutilis are said, when the act or the words do work or express no more than law by intendment would have supplied and therefore the doubling or iterating of that, and no more, which the conceit of law doth in a sort prevent and preoccupate, is reputed nugation; and is not supported and made of substance either by foreign intendment of some purpose, in regard whereof it might be material, nor upon any cause or matter emerging afterwards, which may induce an operation of those idle words or acts.

And therefore if a man devise land at this day to his son and Tit. Devise, heir, this is a void devise; because the disposition of law did

pl. 41.

cast the same upon the heir by descent: and yet if it be knight's service land, and the heir within age, if he take by the devise he shall have two parts of the profits to his own use, and the guardian shall have benefit but of the third. But if a man devise land to his two daughters, having no sons, then the devise is good; because he doth alter the disposition of law: for by the law they should take in coparcenary, but by the devise they shall take jointly; and this is not any foreign collateral purpose, but in point of taking of estate.

So if a man make a feoffment in fee to the use of his last will