THE

JURISDICTION OF THE MARCHES.

The effect of the first argument of the king's solicitor-| tute all the lordships' marchers are made shiro general, in maintaining the jurisdiction of the ground, being either annexed to the ancient coun.

ouncil of the marches over the four shires. ties of Wales, or to the ancient counties of England,

The question for the present is only upon the or erected into new counties, and made parcel of statute of 32 H. VIII., and though it be a great the dominion of Wales, and so no miore marches question, yet it is contracted into small room; for after the statute of 27: so as there were no marches it is but a true construction of a monosyllable, the in that sense at the time of the making of the word march.

statute of 34. ) The exposition of all words resteth upon three The second argument is from the comparing of proofs, the propriety of the word, and the matter the place of the statute, whereupon our doubt precedent, and subsequent.

riseth ; namely, that there shall be and remain a / Matter precedent concerning the intent of those lord president and council in the dominion of ✓ that speak the words, and matter subsequent Wales and the marches of the same, &c. with

touching the conceit and understanding of those another place of the same statute, where the word that construe and receive them,

marches is left out; for the rule is, opposita juxta First, therefore, as to vis termini, the force and se posita magis elucescunt. (There is a clause in ✓ propriety of the word; this word marches signi- the statute which gives power and authority to fieth no more but limits, or confines, or borders, in the king to make and alter laws for the weal of Latin limites, or confinia, or contermina ; and thereof his subjects of his dominion of Wales; there the was derived at the first marchio, a marquis, which word marches is omitted, because it was not was comes limitaneus.

thought reasonable to invest the king with a Now these limits cannot be linea imaginaria, power to alter the laws, which is the subjects' but it must have some contents and dimension, birthright, in any part of the realm of England; and that can be no other but the counties adjacent; and, therefore, by the omission of the word marches and for this construction we need not wander out in that place, you may manifestly collect the sigof our own state, for we see the counties of North- nification of the word in the other, that is to be umberland, Cumberland, and Westmoreland, late- meant of the four counties of England.

ind: 256 ly the borders upon Scotland. Now the middle The third argument which we will use is this: shires were commonly called the east, west, and the council of the marches was not erected by the middle marches.

act of Parliament, but confirmed ; for there was a To proceed, therefore, to the intention of those president and council long before in E. IV. his that made the statute, in the use of this word; I time, by matter yet appearing; and it is evident shall prove that the Parliament took it in this upon the statute itself, that in the very clause sense by three several arguments.

which we now handle it referreth twice to the The first is, that otherwise the word should be usage, as heretofore hath been used. idle; and it is a rule, verba sunt accipienda, ut This, then, I infer, that whatsoever was the sortientur effectum : for this word marches, as is king's intention in the first erection of this court, confessed on the other side, must be either for the was, likewise, the intention of the Parliament in counties' marches, which is our sense, or the lord- the establishing thereof, because the Parliament ships' marchers, which is theirs; that is, such builded upon an old foundation. ) fordships, as by reason of the incursions and in- The king's intention appeareth to have had festation of the Welsh, in ancient time, were not three branches, whereof every of them doth mani. under the constant possession of either dominion, festly comprehend the four shires. but like the bateable ground where the war played. (The first was the better to bridle the subject of Now if this latter sense be destroyed, then all Wales, which at that time was not reclaimed. equivocation ceaseth.

and therefore it was necessary for the president That it is destroyed appears manifestly, by the and council there to have jurisdiction and comstatute of 27 H. VIII., made seven years before mand over the English shires) because that oy the statute of which we dispute; for by that sta- I the aid of them, which were undoubted good sute

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jects, they might the better govern and suppress number of years since; so that it is Janus bifrons, chose that were doubtful subjects.

it hath a face backward from the statute, as well And if it be said, that it is true, that the four as forwards. shires were comprehended in the commission of For the second, it hath received these allowoyer and terminer, for the suppression of riots and ances by the practice of that court, by suits orimisdemeanors, but not for the jurisdiction of a ginally commenced there, by remanding from the Court of Equity; to that I answer, that their com- courts of Westminster, when causes within those mission of oyer and terminer was but gladius in shires have been commenced here above; somevagina, for it was not put in practice amongst times in chancery, sometimes in the Star Chamthem; for even in punishment of riots and misde- ber, by the admittance of divers great learned meanors, they proceed not by their commission men and great judges, that have been of that of oyer and terminer, by way of jury, but as a council, and exercised that jurisdiction; as at one council, by way of examination. And again it time Bromley, Morgan, and Brooks, being the was necessary to strengthen that court for their two chief justices, and chief baron, and divers better countenance with both jurisdictions, as well others; by the king's learned council, which alcivil as criminal, for gladius gladium juvat. ways were called to the penning of the king's

( The second branch of the king's intention was instructions; and, lastly, by the king's instructo make a better equality of commerce and inter- tions themselves, which, though they be not alcourse in contracts and dealings between the sub- ways extant, yet it is manifest that since 17 H, jects of Wales and the subjects of England; and VIII., when Princess Mary went down, that the this of necessity must comprehend the four shires; four shires were ever comprehended in the infor, otherwise, if the subject of England had been structions, either by name, or by that that amounts wronged by the Welsh on the side of Wales, he to so much. So as it appears that this usage or might take his remedy nearer hand. But if the practice hath not been an obscure custom, pracsubject of Wales, for whose weal and benefit the tised by the multitude, which is many times erstatute was chiefly made, had been wronged by roneous, but authorized by the judgment and conthe English in any of the shires, he might have sent of the state: for as it is vera vox to say, sought his remedy at Westminster.

maximus crroris populus magister ; so it is dura vux The third branch of the king's intent was to to say, maximus erroris princeps magister. make a convenient dignity and state of the man- For the third, it was never brought in question sion and resiance of his eldest son, when he should till 16 Eliz. in the case of one Wynde. be created Prince of Wales, which likewise must And, for the fourth, the controversy being moved plainly include the four shires; for otherwise to in that case, it was referred to Gerrard, attorney, have sent primogenitum regis to a government, and Bromley, solicitor, who was afterwards chanwhich, without the mixture of the four shires, as cellor of England, and had his whole state of livthings then were, had more pearl than honour or ing in Shropshire and Worcester, and by them command; or to have granted him only a power reported to the lords of the council in the Star of lieutenancy in those shires, where he was to Chamber, and upon their report decreed, and the keep his state, not adorned with some authority jurisdiction affirmed. civil, had not been convenient.)

Lastly, I will conclude with two manifest So that here I conclude the second part of that badges and tokens, though but external yet vioI am to say touching the intention of the Parlia- lent in demonstration, that these four shires were ment precedent.

understood by the word marches; the one the Now, touching the construction subsequent, the denomination of that council, which was ever in rule is good, optimus legum interpres consuctudo ; common appellation termed and styled the council for our labour is not to maintain a usage against a of the marches, or in the marches, rather than the statute, but by a usage to expound a statute ; for council of Wales, or in Wales, and denominatio no man will say but the word marches will bear est a digniore. If it had been intended of lordthe sense that we give it.

ships' marches, it had been as if one should have This usage or custom is fortified by four nota- called my lord mayor my lord mayor of the ble circumstances; first, that it is ancient, and not suburbs. But it was plainly intended of the late or recent; secondly, it is authorized, and not four English shires, which indeed were the more popular or vulgar; thirdly, that it hath been ad-worthy. mitted and quiet, and not litigious or interrupted ; And the other is of the perpetual resiance and and, fourthly, when it was brought in question, mansion of the council, which was evermore in which was but once, it hath been affirmed, judi- the shires; and to imagine that a court should not cio controverso.

have jurisdiction where it sitteth, is a thing utterly For the first, there is record of a president and improbable, for they should be tanquam piscis in council, that hath exercised and practised juris- arido. diction in these shires, as well sixty years before So as, upon the whole matter, I conclude that the statute, namely, since 18 E. IV. as the like the word marches in that place, by the natural

sense, and true intent of the statute, is meant the four counties; the other that the word marches four shires.

was used for the lordships' marchers long after

both statutes. The effect of that that was spoken by Serjeant Hutton

They said farther, that otherwise the proceedand Serjeant Harris, in answer of the former ar- ing, which had been in the four new erected gument, and for the excluding of the jurisdiction counties of Wales by the commission of oyer of the marches in the four shires.

and terminer, by force whereof many had been

proceeded with both for life and other ways, That which they both did deliver was reduced should be called in question, as coram non judice, to three heads :

insomuch as they neither were part of the prinThe first to prove the use of the word marches cipality of Wales, nor part of the four shires; for lordships' marchers.

and, therefore, must be contained by the word The second to prove the continuance of that use marches, or not at all. of the word, after the statute of 27, that made the For the third head, they did insist upon the lordships' marchers shire-grounds; whereupon it statute of 34, and upon the preamble of the same was inferred, that though the marches were de- statute. stroyed in nature, yet they remained in name. The title being an act for certain ordinances in

The third was some collections they made upon the king's majesty's dominion and principality the statute of 34; whereby they inferred, that of Wales; and the preamble being for the tender that statute intended that word in that significa- zeal and affection that the king bears to his subtion.

jects of Wales; and, again, at the humble suit For the first, they did allege divers statutes and petition of his subjects of Wales ; whereby before 27 H. VIII., and divers book-cases of law they infer that the statute had no purpose to extend in print, and divers offices and records, wherein or intermeddle with any part of the king's domithe word marches of Wales was understood of nions or subjects, but only within Wales. the lordships' marchers.

And for usage and practice, they said, it was They said farther, and concluded, that whereas nothing against an act of Parliament. we show our sense of the word but rare, they And for the instructions, they pressed to see the show theirs common and frequent; and whereas instructions immediately after the statute made. we show it but in a vulgar use and acceptation, And for the certificate and opinions of Gerrard they show theirs in a legal use in statutes, au- and Bromley, they said, they doubted not, but thorities of books, and ancient records.

that if it were now referred to the attorney and They said farther, that the example we brought solicitor, they would certify as they did. of marches upon Scotland was not like, but rather And, lastly, they relied, as upon their principal contrary; for they were never called marches of strength, upon the precedent of that, which was Scotland, but the marches of England : whereas, done of the exempting of Cheshire from the late the statute of 34 doth not speak of the marches jurisdiction of the said council; for they said, uf England, but of the marches of Wales. that from 34 of H. VIII. until 11 of Queen Eliz.

They said farther, that the county of Worcester the court of the marches did usurp jurisdiction did in no place or point touch upon Wales, and, upon that county, being likewise adjacent 10 therefore, that county could not be termed Wales, as the other four are; but that in the marches.

eleventh year of Queen Elizabeth aforesaid, the To the second they produced three proofs; first, same, being questioned at the suit of one Radsome words in the statute of 32 H. VIII., where forde, was referred to the Lord Dyer, and three the statute, providing for a form of trial for trea- other judges, who, by their certificate at large son committed in Wales, and the marches thereof, remaining of record in the Chancery, did prodoth use that word, which was in time after the nounce the said shire to be exempted, and that in statute of 27; whereby they prove the use of the the conclusion of their certificate they gave this word continued.

reason, because it was no part of the principality The second proof was out of two places of the or marches of Wales. By which reason, they statute, whereupon we dispute, where the word say, it should appear their opinion was, that the marches is used for the lordships' marchers. word marches could not extend to counties adja

The third proof was the style and form of the cent. This was the substance of their defence. commission of oyer and terminer even to this day, which run to give power and authority to the

The reply of the king's solicitor to the argumenıs president and council there, infra principalitat.

of the two serjeants. "Valliæ, and infra the four counties by name, with this clause farther, et marchias Walliæ eisdem Having divided the substance of their argucomitatibus adjacenť : whereby they infer two 'ments, ut supra, he did pursue the same division things strongly, the one that the marches of in his reply, observing, nevertheless, both a great Wales must needs be a distinct thing from the redundancy and a great defect in that wh ch was

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spoken. For, touching the use of the word speech ; and, therefore, if all commissions, and marches, great labour had been taken, which was instructions, and practices, have coupled these not denied: but touching the intent of the Parlia- four shires, it is not the map that will sever them. ment, and the reasons to demonstrate the same, To the second head he gave this answer. First, which were the life of the question, little or he observed in general that they had not showed nothing had been spoken.

one statute, or one book-case, or one record, the And, therefore, as to the first head, that the commissions of oyer and terminer only excepted, word marches had been often applied to the wherein the word marches was used for lordships' lordships' marchers, he said it was the sophism marchers since the statute of 34. So that it is which is called sciomachia, fighting with their evident, that as they granted the nature of those shadows; and that the sound of so many statutes, marches was destroyed and extinct by 27, so the so many printed book-cases, so many records, name was discontinued soon after, and did but were nomina magna, but they did not press the remain a very small while, like the sound of a question; for we grant that the word marches had bell, after it hath been rung; and as indeed it is significations, sometimes for the counties, some usual when names are altered, that the old name, times for the lordships' marchers, like as Nor- which is expired, will continue for a small time. thampton and Warwick are sometimes taken for Secondly, he said, that whereas they had made the towns of Northampton and Warwick, and the comparison, that our acceptation of the word sometimes for the counties of Northampton and was popular, and theirs was legal, because it was Warwick. And Dale and Sale are sometimes extant in book-cases, and statutes, and records, taken for the villages or hamlets of Dale and they must needs confess that they are beaten from Sale, and sometimes taken for the parishes of that hold; for the name ceased to be legal clearly Dale and Sale: and, therefore, that the most part by the law of 27, which made the alteration in of that they had said went not to the point. the thing itself, whereof the name is but a sha

To that answer, which was given to the exam-dow; and if the name did remain afterwards, ple of the middle shires upon Scotland, it was then it was neither legal, nor so much as vulgar, said, it was not ad idem; for we used it to prove but it was only by abuse, and by a tr pe or that the word marches may and doth refer to catachresis. whole counties; and so much it doth manifestly Thirdly, he showed the impossibility how that prove; neither can they deny it. But, then, they signification should continue, and be intended by pinch upon the addition, because the English the statute of 34. For if it did, it must be in one counties adjacent upon Scotland are called the of these two senses, either that it was meant of marches of England, and the English counties the lordships' marchers made part of Wales, or adjacent upon Wales are called the marches of of the lordships' marchers annexed to the four Wales; which is but a difference in phrase; for shires of England. sometimes limits and borders have their names For the first of these, it is plainly impugned by of the inward country, and sometimes of the out the statute itself; for the first clause of the statute ward country; for the distinction of exclusive and doth set forth that the principality and dominion inclusive is a distinction both in time and place; of Wales shall consist of twelve shires: wherein as we see that that which we call this day fort- the four new erected counties, which were fornight, excluding the day, the French and the law merly lordships' marchers, and whatsoever else phrase calls this day fifteen days, or quindena, was lordships' marchers annexed to the ancient including the day. And if they had been called counties of Wales, is comprehended; so that of the marches upon Wales, or the marches against necessity all that territory or border must be Wales, then it had been clear and plain; and Wales; then followeth the clause immediately, what difference between the banks of the sea and whereupon we now differ, namely, that there shall the banks against the sea ? So that he took this be and remain a president and council in the printo be but a toy or cavillation, for that phrases of cipality of Wales, and the marches of the same; speech are ad placitum, et recipiunt casum. so that the Parliament could not forget so soon

As to the reason of the map, that the county of what they had said in the clause next before: and Worcester doth no way touch upon Wales, it is therefore by the marches, they meant somewhat true; and I do find when the lordships' marchers else besides that which was Wales. Then, if were annexed, some were laid to every other of they fly to the second signification, and say that the three shires, but none to Worcester. And no it was meant by the lordships' marchers annexed doubt but this emboldened Wynde to make the to the four English shires, that device is merely claim to Worcester, which he durst not have nuper nata oratio, a mere fiction and invention of thought on for any of the other three. But it falls wit, crossed by the whole stream and current of out well that that which is the weakest in proba- practice; for, if that were so, the jurisdiction of bility, is strongest in proof; for there is a case the council should be over part of those shires, ruled in that more than in the rest. But the true and in part not; and then in the suits commenced reason is, that usage must overrule propriety of against any of the inhabitants of the four shires, it ought to have been laid or showed that they To the third head touching the true intent of dwelt within the ancient lordships' marchers, the statute, he first noted how naked their proof whereof there is no shadow that can be showed. was in that kind, which was the life of the ques

Then he proceeded to the three particulars. tion, for all the rest was but in litera et in And for the statute of 32, for trial of treason, he cortice. said it was necessary that the word marches He observed also that all the strength of our should be added to Wales, for which he gave this proof, that concerned that point, they had passed reason, that the statute did not only extend to the over in silence, as belike not able to answer: for trial of treasons, which should be committed after they had said nothing to the first intentions of the statute, but did also look back to treasons the erections of the court, whereupon the Parliacommitted before: and, therefore, this statute ment built: nothing to the diversity of penning, being made but five years after the statute of 27, which was observed in the statute of 34, leaving that extinguished the lordships' marchers, and out the word marches, and resting upon the word looking back, as was said, was fit to be penned Wales alone: nothing to the resiance, nothing to with words that might include the preterperfect the denomination, nothing to the continual practice tense as well as the present tense; for if it had before the statute and after, nothing to the king's rested only upon the word Wales, then a treason instructions, &c. committed before the lordships' marchers were As for that, that they gather out of the title made part of Wales might have escaped the law. and preamble, that the statute was made for

To this also another answer was given, which Wales, and for the weal and government of was, that the word marches as used in that statute, Wales, and at the petition of the subjects of could not be referred to the four shires, because Wales, it was little to the purpose; for no man of the words following, wherewith it is coupled, will affirm on our part the four English shires namely, in Wales, and the marches of the same, were brought under the jurisdiction of that counwhere the king's writ runs not.

cil, either first by the king, or after by the ParliaTo the two places of the statute of 34 itself, ment, for their own sakes, being in parts no wherein the word marches is used for lordships' farther remote; but it was for congruity's sake, marchers; if they be diligently marked, it is and for the good of Wales, that that commixture merely sophistry to allege them; for both of them was requisite : and turpis est pars, quæ non condo speak by way of recital of the time past before gruit cum toto. And therefore there was no reathe statute of 27, as the words themselves being son that the statute should be made at their petiread over will show without any other enforce- tion, considering they were not primi in intenment; so that this is still to use the almanac of tione, but came ex con

consequenti. the old year with the new.

And whereas they say that usage is nothing To the commissions of oyer and terminer, against an act of Parliament, it seems they do which seemeth to be the best evidence they show voluntarily mistake, en they cannot answer; for the continuance of the name in that tropical or for we do not bring usage to cross an act of Parabused sense, it might move somewhat, if this liament, where it is clear, but to expound an act form of penning those commissions had been of Parliament, where it is doubtful, and evermore begun since the statute of 27. But we show forth contemporanea interpretatio, whether it be of stathe commission in 17 H. VIII., when the Princess tute or Scripture, or author whatsoever, is of Mary went down, running in the same manner greatest credit: for to come now, above sixty verbatim, and in that time it was proper, and years after, by subtilty of wit to expound a could not otherwise be. So that it appeareth that statute otherwise than the ages immediately sucit was but merely a facsimile, and that notwith- ceeding did conceive it, is expositio contentiosa, standing the case was altered, yet the clerk of the and not naturalis. And whereas they extenuate crown pursued the former precedent; hurt, it did the opinion of the attorney and solicitor, it is not none, for the word marches is there superfluous. so easy to do; for, first, they were famous men;

And whereas it was said, that the words in and one of them had his patrimony in the shires; those commissions were effectual, because else secondly, it was of such weight as a decree of the proceeding in the four new erected shires of the council was grounded upon it; and, thirdly, Wales should be coram non judice, that objection it was not unlike, but that they had conferred carrieth no colour at all; for it is plain, they have with the judges, as the attorney and solicitor do authority by the word principality of Wales, often use in like cases. without adding the word marches; and that is Lastly, for the exemption of Cheshire he gave proved by a number of places in the statute of this answer. First, that the certificate in the 34, where, if the word Wales should not compre- whole body of till within three or four of the hend those shires, they should be excluded in last lines, doth rely wholly upon that reason, effect of the whole benefit of that statute; for because it was a county palatine: and to speak the word marches is never added in any of these truth, it stood not with any great sense or proporplaces.

tion, that that place which was privileged and Vol. II1.-37

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