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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 council of the marches over the four shires. THE question for the present is only upon the statute of 32 H. VIII., and though it be a great question, yet it is contracted into small room; for it is but a true construction of a monosyllable, the word march.
The exposition of all words resteth upon three proofs, the propriety of the word, and the matter precedent, and subsequent.
Matter precedent concerning the intent of those that speak the words, and matter subsequent touching the conceit and understanding of those that construe and receive them./
First, therefore, as to vis termini, the force and propriety of the word; this word marches signifieth no more but limits, or confines, or borders, in Latin limites, or confinia, or contermina; and thereof was derived at the first marchio, a marquis, which was comes limitaneus.
ground, being either annexed to the ancient counties of Wales, or to the ancient counties of England, or erected into new counties, and made parcel of the dominion of Wales, and so no more marches after the statute of 27: so as there were no marches in that sense at the time of the making of the statute of 34.)
The second argument is from the comparing of the place of the statute, whereupon our doubt riseth; namely, that there shall be and remain a lord president and council in the dominion of Wales and the marches of the same, &c. with another place of the same statute, where the word marches is left out; for the rule is, opposita juxta se posita magis elucescunt. (There is a clause in the statute which gives power and authority to the king to make and alter laws for the weal of his subjects of his dominion of Wales; there the word marches is omitted, because it was not thought reasonable to invest the king with a power to alter the laws, which is the subjects' birthright, in any part of the realm of England; and, therefore, by the omission of the word marches in that place, you may manifestly collect the signification of the word in the other, that is to be
Now these limits cannot be linea imaginaria, but it must have some contents and dimension, and that can be no other but the counties adjacent; and for this construction we need not wander out of our own state, for we see the counties of Northumberland, Cumberland, and Westmoreland, late-meant of the four counties of England. ly the borders upon Scotland. Now the middle shires were commonly called the east, west, and middle marches.
To proceed, therefore, to the intention of those that made the statute, in the use of this word; I shall prove that the Parliament took it in this sense by three several arguments.
The first is, that otherwise the word should be idle; and it is a rule, verba sunt accipienda, ut sortientur effectum: for this word marches, as is confessed on the other side, must be either for the counties' marches, which is our sense, or the lordships' marchers, which is theirs; that is, such fordships, as by reason of the incursions and infestation of the Welsh, in ancient time, were not under the constant possession of either dominion, but like the bateable ground where the war played. Now if this latter sense be destroyed, then all equivocation ceaseth.
That it is destroyed appears manifestly, by the statute of 27 H. VIII., made seven years before the statute of which we dispute; for by that sta
The third argument which we will use is this: the council of the marches was not erected by the act of Parliament, but confirmed; for there was a president and council long before in E. IV. his time, by matter yet appearing; and it is evident upon the statute itself, that in the very clause which we now handle it referreth twice to the usage, as heretofore hath been used.
This, then, I infer, that whatsoever was the king's intention in the first erection of this court, was, likewise, the intention of the Parliament in the establishing thereof, because the Parliament builded upon an old foundation.)
The king's intention appeareth to have had three branches, whereof every of them doth manifestly comprehend the four shires.
(The first was the better to bridle the subject of Wales, which at that time was not reclaimed · and therefore it was necessary for the president and council there to have jurisdiction and command over the English shires because that by the aid of them, which were undoubted good sub
jects, they might the better govern and suppress | number of years since; so that it is Janus bifrons, those that were doubtful subjects. it hath a face backward from the statute, as well as forwards.
And if it be said, that it is true, that the four shires were comprehended in the commission of oyer and terminer, for the suppression of riots and misdemeanors, but not for the jurisdiction of a Court of Equity; to that I answer, that their commission of oyer and terminer was but gladius in vagina, for it was not put in practice amongst them; for even in punishment of riots and misdemeanors, they proceed not by their commission of oyer and terminer, by way of jury, but as a council, by way of examination. And again it was necessary to strengthen that court for their better countenance with both jurisdictions, as well civil as criminal, for gladius gladium juvat.
For the second, it hath received these allowances by the practice of that court, by suits originally commenced there, by remanding from the courts of Westminster, when causes within those shires have been commenced here above; sometimes in chancery, sometimes in the Star Chamber, by the admittance of divers great learned men and great judges, that have been of that council, and exercised that jurisdiction; as at one time Bromley, Morgan, and Brooks, being the two chief justices, and chief baron, and divers others; by the king's learned council, which always were called to the penning of the king's instructions; and, lastly, by the king's instructions themselves, which, though they be not al
The second branch of the king's intention was to make a better equality of commerce and intercourse 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 this of necessity must comprehend the four shires; for, otherwise, if the subject of England had been wronged by the Welsh on the side of Wales, he might take his remedy nearer hand. But if the subject of Wales, for whose weal and benefit the statute was chiefly made, had been wronged by the English in any of the shires, he might have sought his remedy at Westminster.
The third branch of the king's intent was to make a convenient dignity and state of the mansion and resiance of his eldest son, when he should be created Prince of Wales, which likewise must plainly include the four shires; for otherwise to have sent primogenitum regis to a government, which, without the mixture of the four shires, as things then were, had more pearl than honour or command; or to have granted him only a power of lieutenancy in those shires, where he was to keep his state, not adorned with some authority civil, had not been convenient.)
So that here I conclude the second part of that I am to say touching the intention of the Parliament precedent.
Now, touching the construction subsequent, the rule is good, optimus legum interpres consuetudo; for our labour is not to maintain a usage against a statute, but by a usage to expound a statute; for no man will say but the word marches will bear the sense that we give it.
This usage or custom is fortified by four notable circumstances; first, that it is ancient, and not late or recent; secondly, it is authorized, and not popular or vulgar; thirdly, that it hath been admitted and quiet, and not litigious or interrupted; and, fourthly, when it was brought in question, which was but once, it hath been affirmed, judi
VIII., when Princess Mary went down, that the four shires were ever comprehended in the instructions, either by name, or by that that amounts to so much. So as it appears that this usage or practice hath not been an obscure custom, practised by the multitude, which is many times erroneous, but authorized by the judgment and consent of the state: for as it is vera vox to say, maximus erroris populus magister; so it is dura vux to say, maximus erroris princeps magister.
For the third, it was never brought in question till 16 Eliz. in the case of one Wynde.
And, for the fourth, the controversy being moved in that case, it was referred to Gerrard, attorney, and Bromley, solicitor, who was afterwards chancellor of England, and had his whole state of living in Shropshire and Worcester, and by them reported to the lords of the council in the Star Chamber, and upon their report decreed, and the jurisdiction affirmed.
Lastly, I will conclude with two manifest badges and tokens, though but external yet violent in demonstration, that these four shires were understood by the word marches; the one the denomination of that council, which was ever in common appellation termed and styled the council of the marches, or in the marches, rather than the council of Wales, or in Wales, and denominatio est a digniore. If it had been intended of lordships' marches, it had been as if one should have called my lord mayor my lord mayor of the suburbs. But it was plainly intended of the four English shires, which indeed were the more worthy.
And the other is of the perpetual resiance and mansion of the council, which was evermore in the shires; and to imagine that a court should not have jurisdiction where it sitteth, is a thing utterly improbable, for they should be tanquam piscis in arido.
For the first, there is record of a president and council, that hath exercised and practised jurisdiction 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 and Serjeant Harris, in answer of the former argument, and for the excluding of the jurisdiction of the marches in the four shires.
That which they both did deliver was reduced
to three heads:
The first to prove the use of the word marches for lordships' marchers.
The second to prove the continuance of that use of the word, after the statute of 27, that made the lordships' marchers shire-grounds; whereupon it was inferred, that though the marches were destroyed in nature, yet they remained in name.
They said farther, that otherwise the proceeding, which had been in the four new erected counties of Wales by the commission of oyer and terminer, by force where of many had been proceeded with both for life and other ways, should be called in question, as coram non judice, insomuch as they neither were part of the principality of Wales, nor part of the four shires; and, therefore, must be contained by the word marches, or not at all.
For the third head, they did insist upon the statute of 34, and upon the preamble of the same statute.
The title being an act for certain ordinances in the king's majesty's dominion and principality of Wales; and the preamble being for the tender
The third was some collections they made upon the statute of 34; whereby they inferred, that that statute intended that word in that significa-zeal and affection that the king bears to his subtion.
For the first, they did allege divers statutes before 27 H. VIII., and divers book-cases of law in print, and divers offices and records, wherein the word marches of Wales was understood of the lordships' marchers.
They said farther, and concluded, that whereas we show our sense of the word but rare, they show theirs common and frequent; and whereas we show it but in a vulgar use and acceptation, they show theirs in a legal use in statutes, authorities of books, and ancient records.
They said farther, that the example we brought of marches upon Scotland was not like, but rather contrary; for they were never called marches of Scotland, but the marches of England: whereas, the statute of 34 doth not speak of the marches of England, but of the marches of Wales.
They said farther, that the county of Worcester did in no place or point touch upon Wales, and, therefore, that county could not be termed marches.
To the second they produced three proofs; first, some words in the statute of 32 H. VIII., where the statute, providing for a form of trial for treason committed in Wales, and the marches thereof, doth use that word, which was in time after the statute of 27; whereby they prove the use of the word continued.
The second proof was out of two places of the statute, whereupon we dispute, where the word marches is used for the lordships' marchers.
The third proof was the style and form of the commission of oyer and terminer even to this
jects of Wales; and, again, at the humble suit and petition of his subjects of Wales; whereby they infer that the statute had no purpose to extend or intermeddle with any part of the king's dominions or subjects, but only within Wales.
And for usage and practice, they said, it was nothing against an act of Parliament.
And for the instructions, they pressed to see the instructions immediately after the statute made. And for the certificate and opinions of Gerrard and Bromley, they said, they doubted not, but that if it were now referred to the attorney and solicitor, they would certify as they did.
And, lastly, they relied, as upon their principal strength, upon the precedent of that, which was done of the exempting of Cheshire from the late jurisdiction of the said council; for they said, that from 34 of H. VIII. until 11 of Queen Eliz. the court of the marches did usurp jurisdiction upon that county, being likewise adjacent to Wales, as the other four are; but that in the eleventh year of Queen Elizabeth aforesaid, the same, being questioned at the suit of one Radforde, was referred to the Lord Dyer, and three other judges, who, by their certificate at large remaining of record in the Chancery, did pronounce the said shire to be exempted, and that in the conclusion of their certificate they gave this reason, because it was no part of the principality or marches of Wales. By which reason, they say, it should appear their opinion was, that the word marches could not extend to counties adjacent. This was the substance of their defence.
of the two serjeants.
day, which run to give power and authority to the The reply of the king's solicitor to the arguments president and council there, infra principalitat. Walliæ, and infra the four counties by name, with this clause farther, et marchias Walliæ eisdem comitatibus adjacent': whereby they infer two things strongly, the one that the marches of Wales must needs be a distinct thing from the
Having divided the substance of their arguments, ut supra, he did pursue the same division in his reply, observing, nevertheless, both a great redundancy and a great defect in that wh ch was
spoken. For, touching the use of the word marches, great labour had been taken, which was not denied: but touching the intent of the Parliament, and the reasons to demonstrate the same, which were the life of the question, little or nothing had been spoken.
And, therefore, as to the first head, that the word marches had been often applied to the lordships' marchers, he said it was the sophism which is called sciomachia, fighting with their shadows; and that the sound of so many statutes, so many printed book-cases, so many records, were nomina magna, but they did not press the question; for we grant that the word marches had significations, sometimes for the counties, sometimes for the lordships' marchers, like as Northampton and Warwick are sometimes taken for the towns of Northampton and Warwick, and sometimes for the counties of Northampton and Warwick. And Dale and Sale are sometimes taken for the villages or hamlets of Dale and Sale, and sometimes taken for the parishes of Dale and Sale: and, therefore, that the most part of that they had said went not to the point.
speech; and, therefore, if all commissions, and instructions, and practices, have coupled these four shires, it is not the map that will sever them.
To the second head he gave this answer. First, he observed in general that they had not showed one statute, or one book-case, or one record, the commissions of oyer and terminer only excepted, wherein the word marches was used for lordships' marchers since the statute of 34. So that it is evident, that as they granted the nature of those marches was destroyed and extinct by 27, so the name was discontinued soon after, and did but remain a very small while, like the sound of a bell, after it hath been rung; and as indeed it is usual when names are altered, that the old name, which is expired, will continue for a small time.
Secondly, he said, that whereas they had made the comparison, that our acceptation of the word was popular, and theirs was legal, because it was extant in book-cases, and statutes, and records, they must needs confess that they are beaten from that hold; for the name ceased to be legal clearly by the law of 27, which made the alteration in the thing itself, whereof the name is but a shadow; and if the name did remain afterwards, then it was neither legal, nor so much as vulgar, but it was only by abuse, and by a trpe or catachresis.
of these two senses, either that it was meant of the lordships' marchers made part of Wales, or of the lordships' marchers annexed to the four shires of England.
To that answer, which was given to the example of the middle shires upon Scotland, it was said, it was not ad idem; for we used it to prove that the word marches may and doth refer to 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 marches of England, and the English counties adjacent upon Wales are called the marches of Wales; which is but a difference in phrase; for sometimes limits and borders have their names of the inward country, and sometimes of the outward country; for the distinction of exclusive and inclusivè is a distinction both in time and place; as we see that that which we call this day fortnight, excluding the day, the French and the law phrase calls this day fifteen days, or quindena, including the day. And if they had been called the marches upon Wales, or the marches against Wales, then it had been clear and plain; and what difference between the banks of the sea and the banks against the sea? So that he took this to be but a toy or cavillation, for that phrases of speech are ad placitum, et recipiunt casum.
As to the reason of the map, that the county of Worcester doth no way touch upon Wales, it is true; and I do find when the lordships' marchers were annexed, some were laid to every other of the three shires, but none to Worcester. And no doubt but this emboldened Wynde to make the claim to Worcester, which he durst not have thought on for any of the other three. But it falls out well that that which is the weakest in probability, is strongest in proof; for there is a case ruled in that more than in the rest. But the true reason is, that usage must overrule propriety of
For the first of these, it is plainly impugned by the statute itself; for the first clause of the statute doth set forth that the principality and dominion of Wales shall consist of twelve shires: wherein the four new erected counties, which were formerly lordships' marchers, and whatsoever else was lordships' marchers annexed to the ancient counties of Wales, is comprehended; so that of necessity all that territory or border must be Wales; then followeth the clause immediately, whereupon we now differ, namely, that there shall be and remain a president and council in the principality of Wales, and the marches of the same; so that the Parliament could not forget so soon what they had said in the clause next before: and therefore by the marches, they meant somewhat else besides that which was Wales. Then, if they fly to the second signification, and say that it was meant by the lordships' marchers annexed to the four English shires, that device is merely nuper nata oratio, a mere fiction and invention of wit, crossed by the whole stream and current of practice; for, if that were so, the jurisdiction of the council should be over part of those shires, and in part not; and then in the suits commenced against any of the inhabitants of the four shires,
it ought to have been laid or showed that they dwelt within the ancient lordships' marchers, whereof there is no shadow that can be showed. Then he proceeded to the three particulars. And for the statute of 32, for trial of treason, he said it was necessary that the word marches should be added to Wales, for which he gave this reason, that the statute did not only extend to the trial of treasons, which should be committed after the statute, but did also look back to treasons committed before: and, therefore, this statute being made but five years after the statute of 27, that extinguished the lordships' marchers, and looking back, as was said, was fit to be penned with words that might include the preterperfect tense as well as the present tense; for if it had rested only upon the word Wales, then a treason committed before the lordships' marchers were made part of Wales might have escaped the law. To this also another answer was given, which was, that the word marches as used in that statute, could not be referred to the four shires, because of the words following, wherewith it is coupled, namely, in Wales, and the marches of the same, where the king's writ runs not.
To the two places of the statute of 34 itself, wherein the word marches is used for lordships' marchers; if they be diligently marked, it is merely sophistry to allege them; for both of them do speak by way of recital of the time past before the statute of 27, as the words themselves being read over will show without any other enforcement; so that this is still to use the almanac of the old year with the new.
To the commissions of oyer and terminer, which seemeth to be the best evidence they show for the continuance of the name in that tropical or abused sense, it might move somewhat, if this form of penning those commissions had been begun since the statute of 27. But we show forth the commission in 17 H. VIII., when the Princess Mary went down, running in the same manner verbatim, and in that time it was proper, and could not otherwise be. So that it appeareth that it was but merely a facsimile, and that notwithstanding the case was altered, yet the clerk of the crown pursued the former precedent; hurt, it did none, for the word marches is there superfluous.
And whereas it was said, that the words in those commissions were effectual, because else the proceeding in the four new erected shires of Wales should be coram non judice, that objection carrieth no colour at all; for it is plain, they have authority by the word principality of Wales, without adding the word marches; and that is proved by a number of places in the statute of 34, where, if the word Wales should not comprehend those shires, they should be excluded in effect of the whole benefit of that statute; for the word marches is never added in any of these places.
To the third head touching the true intent of the statute, he first noted how naked their proof was in that kind, which was the life of the question, for all the rest was but in litera et in cortice.
He observed also that all the strength of our proof, that concerned that point, they had passed over in silence, as belike not able to answer: for they had said nothing to the first intentions of the erections of the court, whereupon the Parliament built: nothing to the diversity of penning, which was observed in the statute of 34, leaving out the word marches, and resting upon the word Wales alone: nothing to the resiance, nothing to the denomination, nothing to the continual practice before the statute and after, nothing to the king's instructions, &c.
As for that, that they gather out of the title and preamble, that the statute was made for Wales, and for the weal and government of Wales, and at the petition of the subjects of Wales, it was little to the purpose; for no man will affirm on our part the four English shires were brought under the jurisdiction of that council, either first by the king, or after by the Parliament, for their own sakes, being in parts no farther remote; but it was for congruity's sake, and for the good of Wales, that that commixture was requisite: and turpis est pars, quæ non congruit cum toto. And therefore there was no reason that the statute should be made at their petition, considering they were not primi in intentione, but came ex consequenti.
And whereas they say that usage is nothing against an act of Parliament, it seems they do voluntarily mistake, when they cannot answer; for we do not bring usage to cross an act of Parliament, where it is clear, but to expound an act of Parliament, where it is doubtful, and evermore contemporanea interpretatio, whether it be of statute or Scripture, or author whatsoever, is of greatest credit: for to come now, above sixty years after, by subtilty of wit to expound a statute otherwise than the ages immediately succeeding did conceive it, is expositio contentiosa, and not naturalis. And whereas they extenuate the opinion of the attorney and solicitor, it is not so easy to do; for, first, they were famous men; and one of them had his patrimony in the shires; secondly, it was of such weight as a decree of the council was grounded upon it; and, thirdly, it was not unlike, but that they had conferred with the judges, as the attorney and solicitor do often use in like cases.
Lastly, for the exemption of Cheshire he gave this answer. First, that the certificate in the whole body of it, till within three or four of the last lines, doth rely wholly upon that reason, because it was a county palatine: and to speak truth, it stood not with any great sense or proportion, that that place which was privileged and