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Slade's case, Coke's Reports, 4. that is, where the usage runs but amongst clerks, and where it is in the eye and notice of the judge; for there it shall be presumed, saith the book, that if the law were otherwise than the usage hath gone, that either the counsel or the parties would have excepted to it, or the judges ex officio would have discerned of it, and found it; and we have ready for you a calendar of judges more than at this table, that have exercised jurisdiction over the shires in that county.'

As for exception touching the want of certain instructions, I could wish we had them; but the want of them in my understanding obscureth the case little. For let me observe unto you, that we have three forms of instructions concerning these shires extant; the first names them not expressly, but by reference it doth, viz. that they shall hear and determine, &c. within any of the places or counties within any of their commissions; and we have one of the commissions, wherein they are named; so as upon the matter they are named. And of this form are the ancient instructions before the statute, 17 H. VIII. when the Princess Mary went down.

The second form of instructions go farther; for they have the towns and exempted places within the counties named, with tanquam,—as well within the city of Glocester, the liberties of the duchy of Lancaster, &c. as within any of the counties of any of their commissions; -which clearly admits the counties to be in before. And of this form are the instructions

1 Mariæ, and so along until 11 Eliz.

And the third form, which hath been continued ever since, hath the shires comprehended by name. Now it is not to be thought, but the instructions which are wanting are according to one of these three forms which are extant. Take even your

choice, for any of them will serve to prove that the practice there was ever authorised by the instructions here. And so upon the whole matter, I pray report to be made to his Majesty, that the president and the council hath jurisdiction, according to his instructions, over the four shires, by the true construction of the statute of 34 H. VIII.

1 So in MS.

4 Co. 94.

ARGUMENT

IN

CHUDLEIGH'S CASE.

PREFACE.

THIS argument has been recovered by Mr. Spedding, and is here translated from the Law French in which it is preserved, Lansd. MSS. 1121. It seems to be a complete and careful report, but not a revised one, and I have had sometimes to fill up or correct an obscure or mutilated sentence conjecturally.

The case itself is fully reported by Coke, who argued on the same side with Bacon, and by Anderson and Popham, who gave judgment on that same side; and Mr. Hargrave, in his MS. notes on Popham's Reports in the British Museum, mentions an unedited report by Owen, also one of the majority of the judges, in the Library of Lincoln's Inn.

I believe Bacon does not exaggerate the importance attached to the case and decision at the time, in his frequent mention of it in the Reading; and the discussion which the whole doctrine of uses there met with must unquestionably have helped "to reduce it to a true and sound exposition:" yet it seems equally clear that "the many doubts and perplexed questions which had since arisen, and were not yet resolved" at the time of the Reading, have ended by restricting the authority of the decision to a very small part of the ground over which it was conceived to extend, and in fact overruling the doctrine of the majority, at least, of the judges who decided in favour of the defendants.

For though it be true that some of the judges in that majority did point out that the particular limitations in Chudleigh's settlement were such as might exist at Common Law, and that in such cases they would have been destroyed in the event which happened, yet they mostly went on the doctrine of the scintilla juris, which applied equally to springing and shifting uses as to those in the nature of contingent remainders, and would have made them all equally destructible before vesting; and some of them, and some also of those who did not go upon

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