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.

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 prove; neither can they deny it. But, then, they pinch upon the addition, because the English 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

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.

Thirdly, he showed the impossibility how that signification should continue, and be intended by the statute of 34. For if it did, it must be in one of these two senses, either that it was meant of the lordships' marchers made part of Wales, o of the lordships' marchers annexed to the four shires of England.

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,

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

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. 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 likewise 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 crection, 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 12paration 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