The works of Francis Bacon, lord chancellor of England.

240 MAXIMS OF THE LAW.
and matcheth nearness of blood with considera- This clausula derog'atoria is by the common
tion of profit and interest; yea, and in some cases practical term called clausula non obsfante, de fualloweth of it more strongly. turo esse, the one weakening and disannulling any
7 et 8Eliz. Therefore if a man covenant, in con- matter past to the contrary, the other any matter
sideration of blood, to stand seised to to come; and this latter is that only whereof we
the use of his brother, or son, or near kinsman, a speak.
use is well raised of this covenant without trans- The clausula de non obstante de futuro, the law
mutation of possession; nevertheless it is true, judgeth to be idle and of no force, because it doth
that consideration of blood is not to ground a per- deprive men of that which of all other things is
sonal contract upon; as if I contract with my son, most incident to human condition, and that is
that in consideration of blood I will give unto him alteration or repentance.
such a sum of money, this is a nudum pactum, and Therefore if I make my will, and in the end
no assumpsit lieth upon it; for to subject me to thereof do add such like clause [Also my will is,
an action, there needeth a consideration of benefit: if I shall revoke this present will, or declare any
but the use the law raiseth without suit or action; new will, except the same shall be in writing,
and besides, the law doth match real considera- subscribed with the hands of two witnesses, that
tions with real agreements and covenants. such revocation or new declaration shall be utter13 Ed 4. 5. So if a suitbe commenced againstme, ly void; and by these presents I do declare the
19 Ed. 4. 22. ray son, or brother, I may maintain as same not to be my will, but this my former will
22 H. 6. 35.
21 H. 6. 15, 16. well as he in remainder for his interest, to stand] any such pretended will to the contrary
22 H. 6. 5,
20 H. 6. or his lawyer for his fee; and if my notwithstanding; yet nevertheless this clause or
14 H. 6.6.
brother have a suit against my nephew any the like never so exactly penned, and although
or cousin, yet it is my election to maintain the it do restrain the revocation but in circumstance
cause of my nephew or cousin, though the adverse and not altogether, is of no force or efficacy to
party be nearer unto me in blood. fortify the former will against the second; but I
14H. 7. 2. So in challenges of juries, challenge may by parole without writing repeal the same
21E15 i5. of blood is as good as challenge within will and make a new.
Comrn. 4. 25. distress, and it is not material how far So if there be a statute made that no 2s Ed. 3.
cap. 7.
off the kindred be, so the pedigree can be con- sheriff shall continue in his office above 2.Ed 3;
veyed in a certainty, whether it be of the half a year, and if any patent be made to 2. 7. 6.
blood or whole. the contrary, it shall be void; and if there be any
So if a man menace me, that he will clausula de non obstante contained in such patent
15 H. 6. 17.
39 H. 6. 50. imprison or hurt in body my father, or to dispense with this present act, that suc h clause
21 Ed. 4. 13.
IS H. 6. 41. my child, except I make such an obli- also shall be void; yet nevertheless a patent of
gation, I shall avoid this duresse, as the sheriff's office made by the king, with a non
well as if the duresse had been to mine own per- obstante, will be good in law contrary to such
son: and yet if a man menace me, by taking statute, which pretendeth to exclude non obstantes;
away or destruction of my goods, this is no good and the reason is, because it is an inseparable
39 H. 6 91. duresse to plead: and the reason is, prerogative of the crown to dispense, with politic
7 Ed. 4... because the law can make me repara- statutes, and of that kind; and then the derogation of that loss, and so it cannot of tory clause hurteth not.
the other.. So if an act of Parliament be made, wherein
Perk. 4. SO if a man under the years of there is a clause contained that it shall not be
D. cap. 28. twenty-one contract for the nursing of lawful for the king, by authority of Parliament,
his lawful child, this contract is good, and shall during the space of seven years, to repeal and
not be avoided by infancy, no more than if he had determine the same act, this is a void clause, and
contracted for his own aliments or erudition. such act may be repealed within the seven years;
and yet if the Parliament should enact in the naREGULA XIX. ture of the ancient lex regia, that there should be
no more Parliaments held, but that the king
Non impedit clausula derogatoria, quo minu's ab should have the authority of the Parliament; this
eadem potestate res dissolvantur, a quibus consti- act were good in law, quia potestas suprema seiptzunstur. stum dissolvere potest, ligare non potest; for as it
ACTS which are in their natures revocable, can- is in the power of a man to kill a man, but it is
not by strength of words be fixed or perpetuated; not in his power to save him alive, and to restrain
yet mren have put in use two means to bind them- him from breathing or feeling; so it is in the
selves from changing or dissolving that which power of a Parliament to extinguish or transfer
tney have set down, whereof one is clausula de- their own authority, but not, whilst the authority
rogatoria, the other interpositio juramenti, where- remains entire, to restrain the functions and ex
ot the former is only pertinent to this present ercises of the same authority.
purpose. So in the 28 of K. H. VIII. chap. 17, there was