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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 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 arrentation, 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) misunderstood. By the common law there is upon a warrant 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 twenty pounds per annum, and then in lease for twenty shillings. 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 twenty pounds.
So if a man give land in frank-marriage then rented at forty pounds and no more worth; there descendeth other lands, let perhaps for a year or two for twenty pounds, but worth eighty pounds: shall not the donee be at liberty to put this land in hotchpot?
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 calender 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 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 twenty pounds' 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 elucescunt: first, it may be the intent of Sir Thomas in the first clause was double, partly to exclude any land in demesne, partly because knowing the land was double, and as some say quadruple, better than the rent, he would have the more scope of revocation under his twenty pounds' value.
But what is this to the clause of recompense ? 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
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 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.
THESE arguments were delivered in the course of a contest of some historical interest, which was carried on, in the Courts, in Parliament, and out of doors, through the greater part of James's reign, and indeed earlier. The dispute, in its legal aspect, is closely connected with large constitutional questions, which then occupied the minds of men; and the discontent which sustained it may, perhaps, be deemed as much a symptom of the general ferment which was everywhere souring the relations of the Court and country, as directly ascribable to substantial grievances inflicted by the Council on those subject to. its jurisdiction : nevertheless the matter has a separable history of its own, a summary of which may not be out of place as an introduction to these arguments.
The Court of the President and Council in the Dominion and Principality of Wales and the Marches of the same,” originating in earlier and more disturbed times, was confirmed by Parliament 34 35 Hen. VIII. c. 26., one of a series of statutes for regulating that province, and giving large legislative powers to the King for that purpose. It was armed with discretionary power over such matters as should be assigned to it by the King, “ as theretofore had been accustomed and used."
The more noted Council of York had been erected some years earlier without either statute or custom to support it ; as had also a third Provincial Council for the Western Parts, which, however, was soon dropt, owing, as Coke tells us?, to strong local opposition. All three Councils are recognised as a meritorious cause of expense to the King in the Subsidy Act
| A large mass of materials are collected in a volume of the Cotton MSS. Vitellius c. i. devoted to this si.bject and referred to by Mr. Hallam. See also Cott. MSS. Titus B. viii. Many of the same documents, and a great number of others are in the State Paper Office. Mr. Spedding had copied some of the most important, and made extracts from others, before I began my task : the publication of the Calendar has made it easy for me to glean some further information.
: 4th Inst. 246.