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and you have lately affirmed the jurisdiction1; 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 birthrights. 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 likewise plainly

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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 easy 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 courts 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 neccessary 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 subject 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.

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Now to pass from the intent to the word. First I will examine the proofs they have brought that the word was used in their sense after the statutes 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,

2 & 3 Ed. 6. cap.13. sec.16.

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 the 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. c. 37. 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.

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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

So in later editions. There is a blank in the MS. Generally, Bacon's corrections become fewer, and small errors are oftener left untouched, towards the end of the MS.

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' 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 of 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 Gaudy, 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 Scotland, 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 inclusive 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 Serjeanty, 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

"Deck" in MS.: corrected in the later editions, I know not whether on any authority.

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