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exempted from the jurisdiction of the courts of Westminster, should be meant by the Parliament to be subjected to the jurisdiction of that council. Secondly, he said that those reasons, which we do much insist upon for the four shires, hold not for Cheshire, for we say it is fit the subject of Wales be not forced to sue at Westminster, but have his justice near hand; so may he have in Cheshire, because there is both a justice for common law and a chancery; we say it is convenient for the prince, if it please the king to send him down, to have some jurisdiction civil as well as for the peace; so may he have in Cheshire, as Earl of Chester. And therefore those grave men had great reason to conceive that the Parliament did not intend to include Cheshire.
And whereas they pinch upon the last words in the certificate, namely, that Cheshire was no part of the dominion, nor of the marches, they must supply it with this sense, not within the meaning of the statute; for otherwise the judges could not have discerned of it; for they were not to try the fact, but to expound the statute; and that they did upon those reasons, which were special to Cheshire, and have no affinity with the four shires.
And, therefore, if it be well weighed, that certificate makes against them; for as exceptio firmat elgem in casibus non exceptis, so the excepting of that shire by itself doth fortify, that the rest of the shires were included in the very point of difference. After this he showed a statute in 18 Eliz. by which provision is made for the repair of a bridge called Chepstowbridge, between Monmouth and Gloucester, and the charge lay in part upon Gloucestershire; in which statute there is a clause, that if the justices of peace do not their duty in levying of the money, they shall forfeit five pounds to be recovered by information before the council of the marches; whereby he inferred that the Parliament would never have assigned the suit to that court, but that it conceived Gloucestershire to be within the jurisdiction thereof. And therefore he concluded that here is in the nature of a judgment by Parliament, that the shires are within the jurisdiction.
The third and last argument of the king's solicitor in the case of the marches, in reply to Serjeant Harris. This case groweth now to some ripeness, and I am glad we have put the other side into the right way; for in former arguments they laboured little upon the intent of the statute of 34 H. VIII., and busied themselves in effect altogether about the force and use of the word marches; but now finding that litera mortua non prodest, they offer at the true state of the question, which is the intent: I am determined, therefore, to reply to them in their own order, ut manifestum sit, as he saith, me nihil aut subterfugere voluisse reticendo, aut obscurare dicendo.
All which hath been spoken on their part consisteth upon three proofs.
The first was by certain inferences to prove the intent of the statute.
The second was to prove the use of the word marches in their sense long after both statutes; both that of 27, which extinguished the lordships' marchers, and that of 34, whereupon our question ariseth.
The third was to prove an interruption of that practice and use of jurisdiction, upon which we mainly insist, as the best exposition of the statute. For the first of these, concerning the intention, they brought five reasons.
The first was that this statute of 34 was grounded upon a platform, or preparative of certain ordinances made by the king two years before, namely, 32; in which ordinances there is the very clause, whereupon we dispute, namely, That there should be and remain in the dominion and principality of Wales a president and a council: in which clause, nevertheless, the word marches is left out, whereby they collect that it came into the statute of 34 but as a slip, without any farther reach or meaning.
The second was, that the mischief before the statute, which the statute means to remedy, was, that Wales was not governed according to similitude or conformity with the laws of England. And, therefore, that it was a cross and perverse construction, when the statute laboured to draw Wales to the laws of England, to construe it, that it should abridge the ancient subjects of England of their own laws.
The third was, that in a case of so great importance it is not like that if the statute had meant to include the four shires, it would have carried it in a dark general word, as it were noctanter, but would have named the shires to be comprehended.
The fourth was, the more to fortify the third reason, they observed that the four shires are remembered and named in several places of the statute, three in number; and therefore it is not like that they would have been forgotten in the principal place, if they had been meant.
The fifth and last was, that there is no clause of attendance, that the sheriffs of the four shires should attend the lord president and the council; wherein there was urged the example of the acts of Parliament, which erected courts; as the court of augmentations, the court of wards, the court of survey; in all which there are clauses of attendance; whereupon they inferred that evermore, where a statute gives a court jurisdiction, it strengtheneth it with a clause of attendance; and therefore no such clause being in this statute, it is like there was no jurisdiction meant. Nay, farther they noted, that in this very statute for the justices of Wales there is a clause of attendance from the sheriffs of Wales.
In answer to their first reason, they do very well, in my opinion, to consider Mr. Attorney's business and mine, and therefore to find out for us evidence and proofs, which we have no time to search; for certainly nothing can make more for us than these ordinances, which they produce; for the diversity of penning of that clause in the ordinances, where the word marches is omitted, and that clause in the statute where the word marches is added, is a clear and perfect direction what was meant by that word. The ordinances were made by force and in pursuance of authority given to the king by the statute of 27; to what did the statute extend? Only to Wales. And, therefore, the word marches in the ordinances is left out; but the statute of 34 respected not only Wales, but the commixed government, and, therefore, the word marches was put in. They might have remembered that we built an argument upon the difference of penning of that statute of 34 itself in the several clauses of the same; for that in all other clauses, which concern only Wales, the word marches is ever omitted; and in that clause alone that concerneth the jurisdiction of the president and council, it is inserted. And this our argument is notably fortified by that they now show of the ordinances, wherein the very selfsame clause touching the president and council, because the king had no authority to meddle but with Wales, the word marches is omitted. So that it is most plain that this word comes not in by chance or slip, but with judgment and purpose, as an effectual word; for, as it was formerly said, opposita juxta se posita magis elucescunt; and, therefore, I may likewise urge another place in the statute which is left out in the ordinance; for I find there is a clause that the town of Bewdley, which is confessed to be no lordships' marcher, but to lie within the county of Worcester; yet because it was an exempted jurisdiction, is by the statute annexed unto the body of the said county. First, this shows that the statute of 34 is not confined to Wales, and the lordships' marchers, but that it intermeddles with Worcestershire. Next, do you find any such clause in the ordinance of 32? No. Why? Because they were appropriated to Wales. So that, in my opinion, nothing could enforce our exposition better than the collating of the ordinance of 32 with the statute of 34.
In answer to the second reason, the course that I see often taken in this cause makes me think of the phrase of the psalm, "starting aside like a broken bow:" so, when they find their reasons broken, they start aside to things not in question. For now they speak, as if he went about to make the four shires Wales, or to take from them the benefit of the laws of England, or their being accounted amongst the ancient counties of England: doth any man say that those shires are not within the circuits of England, but subject to the justices of Wales? or that they should send but one
knight to the Parliament, as the shires of Wales do? or that they may not sue at Westminster, in chancery, or at common law, or the like? No man affirms any such things; we take nothing from them, only we give them a court of summary justice in certain causes at their own doors.
And this is nova doctrina to make such an opposition between law and equity, and between formal justice and summary justice. For there is no law under heaven which is not supplied with equity; for summum jus, summa injuria, or, as some have it, summa lex, summa crux. And therefore all nations have equity; but some have law and equity mixed in the same court, which is the worse; and some have it distinguished in several courts, which is the better. Look into any counties palatine, which are small models of the great government of kingdoms, and you shall never find any but had a chancery.
Lastly, it is strange that all other places do require courts of summary justice, and esteem them to be privileges and graces; and in this cause only they are thought to be servitudes and loss of birthright. The universities have a court of summary justice, and yet I never heard that scholars complain their birthright was taken from them. The stannaries have them, and you have lately affirmed the jurisdiction; and yet you have taken away no man's birthright. The court at York, whosoever looks into it, was erected at the petition of the people, and yet the people did not mean to cast away their birthright. The court of wards is mixed with discretion and equity; and yet I never heard that infants and innocents were deprived of their birthright. London, which is the seat of the kingdom, hath a court of equity, and holdeth it for a grace and favour: how then cometh this case to be singular? And therefore these be new phrases and conceits, proceeding of error or worse; and it makes me think that a few do make their own desires the desires of the country, and that this court is desired by the greater number, though not by the greater stomachs.
In answer to the third reason, if men be conversant in the statutes of this kingdom, it will appear to be no new thing to carry great matters in general words without other particular expressing. Consider but of the statute of 26 H. VIII. which hath carried estates tails under the general words of estates of inheritance. Consider of the statute of 16 R. II. of præmunire, and see what great matters are thought to be carried under the word alibi. And, therefore, it is an ignorant assertion to say that the statute would have named the shires, if it had meant them.
Secondly, the statute had more reason to pass it over in general words, because it did not ordain a new matter, but referreth to usage; and though the statute speaks generally, yet usage speaks plainly and particularly, which is the strongest
kind of utterance or expressing. Quid verba audiam | cum facta videam.
And, thirdly, this argument of theirs may be strongly retorted against them, for as they infer that the shires were not meant, because they were not included by name, so we infer that they are meant, because they are not excepted by name, as is usual by way of proviso in like cases: and our inference hath far greater reason than theirs, because at the time of the making of the statute they were known to be under the jurisdiction; and, therefore, that ought to be most plainly expressed, which should work a change, and not that which should continue things as they were.
In answer to their fourth reason, it makes like wise plainly against them; for there be three places where the shires be named, the one for the extinguishing of the custom of gavelkind; the second for the abolishing of certain forms of assurance which were too light to carry inheritance and freehold; the third for the restraining of certain franchises to that state they were in by a former statute. In these three places the words of the statute are, The lordships' marchers annexed unto the counties of Hereford, Salop, &c.
Now mark, if the statute conceived the word marches to signify lordships' marchers, what needeth this long circumlocution? It had been easier to have said, within the marches. But because it was conceived that the word marches would have comprehended the whole counties, and the statute meant but of the lordships' marchers annexed; therefore they were enforced to use that periphrasis or length of speech.
In answer to the fifth reason I give two several answers; the one, that the clause of attendance is supplied by the word incidents; for the clause of establishment of the court hath that word, "with all incidents to the same as heretofore hath been used:" for execution is ever incident to justice or jurisdiction. The other because it is a court, that standeth not by the act of Parliament alone, but by the king's instructions, whereto the act refers. Now, no man will doubt but the king may supply the clause of attendance; for if the king grant forth a commission of oyer and terminer, he may command what sheriff he will to attend it; and therefore there is a plain diversity between this case and the cases they vouch of the court of wards, survey, and augmentations: for they were courts erected de novo by Parliament, and had no manner of reference either to usage or instructions; and therefore it was necessary that the whole frame of those courts, and their authority both for judicature and execution, should be described and expressed by Parliament. So was it of the authority of the justices of Wales in the statute of 34 mentioned, because there are many ordinances de novo concerning them; so that it was a new erection, and not a confirmation of them.
Thus have I, in confutation of their reasons, greatly, as I conceive, confirmed our own, as it were, with new matter; for most of that they have said made for us. But as I am willing to clear your judgments, in taking away the objections, so I must farther pray in aid of your memory for those things which we have said, whereunto they have offered no manner of answer; for unto all our proofs which we made touching the intent of the statute, which they grant to be the spirit and life of this question, they said nothing: as not a word to this; That otherwise the word marches in the statute should be idle or superfluous: not a word to this; That the statute doth always omit the word marches in things that concern only Wales: not a word to this; That the statute did not mean to innovate, but to ratify, and therefore if the shires were in before, they are in still: not a word to the reason of the commixed government, as that it was necessary for the reclaiming of Wales to have them conjoined with the shires; that it was necessary for commerce and contracts, and properly for the ease of the subjects of Wales against the inhabitants of the shires; that it was not probable that the Parliament meant the prince should have no jurisdiction civil in that place, where he kept his house. To all these things, which we esteem the weightiest, there is altum silentium, after the manner of children that skip over where they cannot spell.
Now, to pass from the intent to the word; first, I will examine the proof they have brought that the word was used in their sense after the statute 27 and 34; then I will consider what is gained, if they should prove so much: and, lastly, I will briefly state our own proofs, touching the use of the word.
For the first, it hath been said, that whereas I called the use of the word marches, after the statute of 27, but a little chime at most of an old word, which soon after vanished, they will now ring us a peal of statutes to prove it; but if it be a peal, I am sure it is a peal of bells, and not a peal of shot: for it clatters, but it doth not strike: for of all the catalogue of statutes I find scarcely one, save those that were answered in my former argument; but we may with as good reason affirm in every of them the word marches to be meant of the counties' marches, as they can of the lordships' marchers: for to begin upwards:
The statute 39 Eliz. for the repair of Wilton Bridge, no doubt doth mean the word marches for the counties; for the bridge itself is in Herefordshire, and the statute imposeth the charge of reparation upon Herefordshire by compulsory means, and permitteth benevolence to be taken in Wales, and the marches; who doubts, but this meant of the other three shires, which have far greater use of the bridge than the remote counties of Wales?
For the statute 5 Eliz., concerning perjury, it hath a proviso, that it shall not be prejudicial to
he council of the marches for punishing of perjury; who can doubt but that here marches is meant of the shires, considering the perjuries committed in them have been punished in that court as well as in Wales?
For 2 E. VI. and the clause therein for restraining tithes of marriage portions in Wales and the marches, why should it not be meant of counties? For if any such customs had crept and encroached into the body of the shires out of the lordships' marchers, no doubt the statute meant to restrain them as well there as in the other places.
And so for the statute of 32 H. VIII. which ordains that the benefit of that statute for distress to be had by executors, should not extend to any lordship in Wales, or the marches of the same where mises are paid, because that imports a general release; what absurdity is there, if there the marches be meant for the whole shires? for if any such custom had spread so far, the reason of the statute is alike.
As for the statutes of 37 H. VIII. and 4 E. IV. for the making and appointing of the custos rotulorum, there the word marches must needs be taken for limits, according to the etymology and derivation; for the words refer not to Wales, but are thus, within England and Wales, and other the king's dominions, marches, and territories, that is, limits and territories; so as I see no reason but I may truly maintain my former assertion, that after the lordships' marchers were extinct by the statute of 27, the name also of marches was discontinued, and rarely if ever used in that sense.
But if it should be granted that it was now and then used in that sense, it helps them little; for first it is clear that the legal use of it is gone, when the thing was extinct, for nomen est rei nomen; so it remains but abusivè, as if one should call Guletta Carthage, because it was once Carthage; and, next, if the word should have both senses, and that we admit an equivocation, yet we so overweigh them upon the intent, as the balance is soon cast.
Yet one thing I will note more, and that is, that there is a certain confusion of tongues on the other side, and that they cannot well tell themselves what they would have to be meant by the word marches; for one while they say it is meant for the lordships' marchers generally, another while they say that it is meant for the inward marches on Wales's side only; and now at last they are driven to a poor shift, that there should be left some little lordship marcher in the dark, as casus omissus, not annexed at all to any county; but if they would have the statute satisfied upon that only, I say no more to them, but aquila non capit muscas.
Now I will briefly remember unto you the state our proofs of the word.
First, according to the laws of speech we prove
it by the etymology or derivation, because march is the Saxon word for limit, and marchio is comes limitaneus; this is the opinion of Camden and others.
Next, we prove the use of the word in the like case to be for counties, by the example of the marches of Scotland: for as it is prettily said in Walker's case by Gawdy, if a case have no cousin, it is a sign it is a bastard, and not legitimate; therefore, we have showed you a cousin, or rather a brother, here within our own island, of the like use of the word. And whereas a great matter was made that the now middle shires were never called the marches of Scotland, but the marches of England against Scotland, or upon Sectland, it was first answered that that made no difference; because sometimes the marches take their name of the inward country, and sometimes of the out country; so that it is but inclusivè and exclusivè: as for example, that which we call in vulgar speech this day fortnight, excluding the day, that the law calls quindena, including the day; and so, likewise, who will make a difference between the banks of the sea, and the banks against the sea, or upon the sea? But now, to remove all scruple, we show them Littleton in his chapter Of Grand Serjeantry, where he saith, there is a tenure by cornage in the marches of Scotland; and we show them likewise the statute of 25 E. III., Of Labourers, where they are also called the marches of Scotland.
Then we show some number of bills exhibited to the council there before the statute, where the plaintiffs have the addition of place confessed within the bodies of the shires, and no lordships' marchers, and yet are laid to be in the marches.
Then we show divers accounts of auditors in the duchy from H. IV. downwards, where the endorsement is in marchiis Walliæ, and the contents are possessions only of Hereford and Gloucestershire, (for in Shropshire and Worcestershire the duchy hath no lands;) and whereas, they would put it off with a cuique in sua arte credendum, they would believe them, if it were in matter of accounts; we do not allege them as auditors, but as those that speak English to prove the common use of the word, loquendum ut vulgus.
We show, likewise, an ancient record of a patent to Herbert, in 15 E. IV., where Kilpeck is laid to be in com. Hereford in marchiis Walliæ; and, lastly, we show again the statute of 27 E. III., where provision is made that men shall labour in the summer where they dwell in the winter; and there is an exception of the people of the counties of Stafford and Lancashire, &c., and of the marches of Wales and Scotland; where it is most plain that the marches of Wales are meant for counties, because they are coupled both with Stafford and Lancashire, which are counties, and with the marches of Scotland. which are likewise counties; and, as it is inform
ed, the labourers of those four shires do come forth of their shires, and are known by the name of Cokers to this day.
To this we add two things, which are worthy consideration; the one, that there is no reason to put us to the proof of the use of this word marches sixty years ago, considering that usage speaks for us; the other, that there ought not to be required of us to show so frequent a use of the word marches of ancient time in our sense, as they showed in theirs, because there was not the like occasion: for, when a lordship marcher was mentioned, it was of necessity to lay it in the marches, because they were out of all counties; but when land is mentioned in any of these counties, it is superfluous to add, in the marches; so as there was no occasion to use the word marches, but either for a more brief and compendious speech to avoid the naming of the four shires, as it is in the statute of 25 E. III., and in the endorsement of accounts; or to give a court cognisance and jurisdiction, as in the bills of complaint; or, ex abundanti, as in the record of Kilpeck.
There resteth the third main part, whereby they endeavour to weaken and extenuate the proofs which we offer touching practice and possession, wherein they allege five things.
For Cheshire, we have answered it before, that the reason was, because it was not probable that the statute meant to make that shire subject to the jurisdiction of that council, considering it was not subject to the high courts at Westminster, in regard it was a county palatine. And, whereas they said, that so was Flintshire too, it matcheth not, because Flintshire is named in the statute for one of the twelve shires of Wales.
We showed you likewise effectual differences between Cheshire and these other shires; for that Cheshire hath a chancery in itself, and over Cheshire the princes claim jurisdiction, as Earl of Chester; to all which you reply nothing.
Therefore, I will add this only, that Cheshire went out secundo flumine, with the good will of the state; and this sought to be evicted adverso flumine, cross the state; and as they have opinion of four judges for the excluding of Cheshire, so we have the opinion of two great learned men, Gerrard and Bromley, for the including of Worcester; whose opinions, considering it was but matter of opinion, and came not judicially in question, are not inferior to any two of the other; but we say that there is no opposition or repugnancy between them, but both may stand.
For Cholmley's instructions, the words may well stand, that those shires are annexed by com
First, that Bristol was in until 7 Eliz., and then mission; for the king's commission or instrucexempted.
tions, for those words are commonly confounded,
Secondly, that Cheshire was in until 11 Eliz., must co-operate with the statute, or else they canand then went out.
Thirdly, they allege certain words in the instructions to Cholmley, vice-president, in 11 Eliz., at which time the shires were first comprehended in the instructions by name, and in these words, annexed by our commission: whereupon they would infer that they were not brought in the statute, but only came in by instructions, and do imagine that when Cheshire went out they came in.
Fourthly, they say that the intermeddling with those four shires before the statute, was but a usurpation and toleration, rather than any lawful and settled jurisdiction; and it was compared to that, which is done by the judges in their circuits, who end many causes upon petitions.
Fifthly, they allege Sir John Mullen's case, where it is said consuetudo non præjudicat veritati. There was moved, also, though it were not by the council, but from the judges themselves, as an extenuation, or at least an obscuring of the proofs of the usage and practice, in that we show forth no instructions from 17 H. VIII. to 1 Mariæ. To these six points I will give answer, and, as I conceive, with satisfaction.
For Bristol, I say it teacheth them the right way, if they can follow it; for Bristol was not exempt by any opinion of law, but was left out of the instructions upon supplication made to the
not be annexed. But for that conceit that they should come in but in 11, when Cheshire went out, no man that is in his wits can be of that opinion, if he mark it: for we see that the town of Glocester, &c., is named in the instructions of 1 Mar., and no man, I am sure, will think that Glocester town should be in, and Glocestershire out.
For the conceit, that they had it but jurisdictionem precariam, the precedents show plainly the contrary; for they had coercion, and they did fine and imprison, which the judges do not upon petitions; and, besides, they must remember that many of our precedents, which we did show forth, were not of suits originally commenced there, but of suits remanded from hence out of the king's courts as to their proper jurisdiction.
For Sir John Mullen's case, the rule is plain and sound, that where the law appears contrary, usage cannot control law; which doth not at all infringe the rule of optima legum interpres consuetudo; for usage may expound law, though it cannot overrule law.
But of the other side I could show you many cases, where statutes have been expounded directly against their express letter to uphold precedents and usage, as 2 and 3 Phil. et Mar. upon the statute of Westminster, that ordained that the judges coram quibus formatum erit appellum shall inquire of the damages, and yet the law ruled that