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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


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 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, viz. 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 legem 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 Chepstow bridge, 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

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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


The second was to prove the use of the word marches in their sense long after both statutes, both that of 27, which extincted 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, viz. 32. In which ordinances there is the very clause whereupon we dispute, viz. 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 meant 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 constrne it that it should abridge the ancient subjects of England of their own laws.

The third was that in 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 that 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, where in 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 lordship 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 ordinances of 32? No. Why? Because they were appropriate to Wales. So that in my opinion nothing could inforce 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 we 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 case 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,

"Cause" in MS.

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