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