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spoken. For, touching the use of the word speech ; and, therefore, if all commissions, and marches, great labour had been taken, which was instructions, and practices, have coupled these not denied: but touching the intent of the Parlia- four shires, it is not the map that will sever them. ment, and the reasons to demonstrate the same, To the second head he gave this answer. First, which were the life of the question, little or he observed in general that they had not showed nothing had been spoken.
one statute, or one book-case, or one record, the And, therefore, as to the first head, that the commissions of oyer and terminer only excepted, word marches had been often applied to the wherein the word marches was used for lordships' lordships' marchers, he said it was the sophism marchers since the statute of 34. So that it is which is called sciomachia, fighting with their evident, that as they granted the nature of those shadows; and that the sound of so many statutes, marches was destroyed and extinct by 27, so the so many printed book-cases, so many records, name was discontinued soon after, and did but were nomina magna, but they did not press the remain a very small while, like the sound of a question; for we grant that the word marches had bell, after it hath been rung; and as indeed it is significations, sometimes for the counties, some- usual when names are altered, that the old name, times for the lordships' marchers, like as Nor- which is expired, will continue for a small time. thampton and Warwick are sometimes taken for Secondly, he said, that whereas they had made the towns of Northampton and Warwick, and the comparison, that our acceptation of the word sometimes for the counties of Northampton and was popular, and theirs was legal, because it was Warwick. And Dale and Sale are sometimes extant in book-cases, and statutes, and records, taken for the villages or hamlets of Dale and they must needs confess that they are beaten from Sale, and sometimes taken for the parishes of that hold; for the name ceased to be legal clearly Dale and Sale: and, therefore, that the most part by the law of 27, which made the alteration in of that they had said went not to the point. the thing itself, whereof the name is but a sha
To that answer, which was given to the exam- dow; and if the name did remain afterwards, ple of the middle shires upon Scotland, it was then it was neither legal, nor so much as vulgar, said, it was not ad idem; for we used it to prove but it was only by abuse, and by a tn pe or that the word marches may and doth refer to catachresis. whole counties; and so much it doth manifestly Thirdly, he showed the impossibility how that prove; neither can they deny it. But, then, they signification should continue, and be intended by pinch upon the addition, because the English the statute of 34. For if it did, it must be in one counties adjacent upon Scotland are called the of these two senses, either that it was meant of marches of England, and the English counties the lordships' marchers made part of Wales, or adjacent upon Wales are called the marches of of the lordships' marchers annexed to the four Wales; which is but a difference in phrase; for shires of England. sometimes limits and borders have their names For the first of these, it is plainly impugned by of the inward country, and sometimes of the out the statute itself; for the first clause of the statute ward country; for the distinction of exclusive and doth set forth that the principality and dominion inclusive is a distinction both in time and place; of Wales shall consist of twelve shires: wherein as we see that that which we call this day fort- the four new erected counties, which were fornight, excluding the day, the French and the law merly lordships' marchers, and whatsoever else phrase calls this day fifteen days, or quindena, was lordships' marchers annexed to the ancient including the day. And if they had been called counties of Wales, is comprehended; so that of the marches upon Wales, or the marches against necessity all that territory or border must be Wales, then it had been clear and plain; and Wales; then followeth the clause immediately, what difference between the banks of the sea and whereupon we now differ, namely, that there shall the banks against the sea ? So that he took this be and remain a president and council in the printo be but a toy or cavillation, for that phrases of cipality of Wales, and the marches of the same; speech are ad placitum, et recipiunt casum. so that the Parliament could not forget so soon
As to the reason of the map, that the county of what they had said in the clause next before: and Worcester doth no way touch upon Wales, it is therefore by the marches, they meant somewhat true; and I do find when the lordships' marchers else besides that which was Wales. Then, if were annexed, some were laid to every other of they fly to the second signification, and say that the three shires, but none to Worcester. And no it was meant by the lordships' marchers annexed doubt but this emboldened Wynde to make the to the four English shires, that device is merely claim to Worcester, which he durst not have nuper nata oratio, a mere fiction and invention of thought on for any of the other three. But it falls wit, crossed by the whole stream and current of out well that that which is the weakest in proba- practice; for, if that were so, the jurisdiction of bility, is strongest in proof; for there is a case the council should be over part of those shires, ruled in that more than in the rest. But the true and in part not; and then in the suits commenced reason is, that usage must overrule propriety of against any of the inhabitants of the four shires,
it ought to have been laid or showed that they To the third head touching the true intent of dweli within the ancient lordships' marchers, the statute, he first noted how naked their proof whereof there is no shadow that can be showed. was in that kind, which was the life of the ques.
Then he proceeded to the three particulars. tion, for all the rest was but in litera et in And for the statute of 32, for trial of treason, he corlice. said it was necessary that the word marches He observed also that all the strength of our should be added to Wales, for which he gave this proof, that concerned that point, they had passed reason, that the statute did not only extend to the over in silence, as belike not able to answer: for trial of treasons, which should be committed after they had said nothing to the first intentions of the statute, but did also look back to treasons the erections of the court, whereupon the Parliacommitted before: and, therefore, this statute ment built: nothing to the diversity of penning, being made but five years after the statute of 27, which was observed in the statute of 31, leaving that extinguished the lordships' marchers, and out the word marches, and resting upon the word looking back, as was said, was fit to be penned Wales alone: nothing to the resiance, nothing to with words that might include the preterperfect the denomination, nothing to the continual practice lense as well as the present tense; for if it had before the statute and after, nothing to the king's rested only upon the word Wales, then a treason instructions, &c. committed before the lordships' marchers were As for that, that they gather out of the title inade part of Wales might have escaped the law. and preamble, that the statute was made for
To this also another answer was given, which Wales, and for the weal and government of was, that the word marches as used in that statute, Wales, and at the petition of the subjects of could not be referred to the four shires, because Wales, it was little to the purpose; for no man of the words following, wherewith it is coupled, will affirm on our part the four English shires namely, in Wales, and the marches of the same, were brought under the jurisdiction of that counwhere the king's writ runs not.
cil, either first by the king, or after by the ParliaTo the two places of the statute of 34 itself, ment, for their own sakes, being in parts no wherein the word marches is used for lordships' farther remote; but it was for congruity's sake, marchers; if they be diligently marked, it is and for the good of Wales, that that commixture merely sophistry to allege them; for both of them was requisite: and turpis est pars, quæ non condo speak by way of recital of the time past before gruit cum toto. And therefore there was no reathe statute of 27, as the words themselves being son that the statute should be made at their petiread over will show without any other enforce- tion, considering they were not primi in intenment; so that this is still to use the almanac of tione, but came ex consequenti. the old year with the new.
And whereas they say that usage is nothing To the commissions of oyer and terminer, against an act of Parliament, it seems they do which seemeth to be the best evidence they show voluntarily mistake, when they cannot answer; for the continuance of the name in that tropical for we do not bring usage to cross an act of Parabused sense, it might nove somewhat, if this liament, where it is clear, but to expound an act forin of penning those commissions had been of Parliament, where it is doubtful, and evermore begun since the statute of 27. But we show forth contemporanea interpretatio, whether it be of slite the commission in 17 H. VIII., when the Princess tute or Scripture, or author whatsoever, is of Mary went down, running in the same manner greatest credit: for to come now, above sixty verbatim, and in that time it was proper, and years after, by subtilty of wit to expound a could not otherwise be. So that it appeareth that statute otherwise than the ages immediately suc. it was but merely a facsimile, and that notwith- ceeding did conceive it, is exposilio contentiosa, standing the case was altered, yet the clerk of the and not naturalis. And whereas they extenuate crown pursued the former precedent; hurt, it did the opinion of the attorney and solicitor, it is not none, for the word marches is there superfluous. so easy to do; for, first, they were famous men;
And whereas it was said, that the words in and one of them had his patrimony in the shires; those commissions were effectual, because else secondly, it was of such weight as a decree of the proceeding in the four new erected shires of the council was grounded upon it; and, thirdly, Wales should be coram non judice, that objection it was not unlike, but that they had conferred carrieth no colour at all; for it is plain, they have with the judges, as the attorney and solicitor do authority by the word principality of Wales, often use in like cases. without adding the word marches; and that is Lastly, for the exemption of Cheshire he gave proved by a number of places in the statute of this answer. First, that the certificate in the 34, where, if the word Wales should not compre- whole body of it, till within three or four of the hend those shires, they should be excluded in last lines, doth rely wholly upon that reason, effect of the whole benefit of that statute; for because it was a county palatine: and to speak the word marches is never added in any of these truth, it stood not with any great sense or propor. places.
tion, that that place which was privileged and Vol. III.-37
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. we do much insist upon for the four shires, hold The second was to prove the use of the word not for Cheshire, for we say it is fit the subject marches in their sense long after both statutes ; of Wales be not forced to sue at Westminster, both that of 27, which extinguished the lordships' but have his justice near hand; so may he have marchers, and that of 34, whereupon our question in Cheshire, because there is both a justice for ariseth. common law and a chancery; we say it is conve- The third was to prove an interruption of that nient for the prince, if it please the king to send practice and use of jurisdiction, upon which we him down, to have some jurisdiction civil as well mainly insist, as the best exposition of the statute. as for the peace; so may he have in Cheshire, as For the first of these, concerning the intention, Earl of Chester. And therefore those grave men they brought five reasons. had great reason to conceive that the Parliament The first was that this statute of 34 was grounddid not intend to include Cheshire.
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 im. Gloucestershire; 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 noc!anter, 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 solicitar 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 effeet 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, il 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 (rut subterfugere voluisse reticendo, aut obscurare of Wales there is a clause of attendance from the
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 nine, 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 nora 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 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 marches 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 exémpted 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 conWhy? 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 being 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 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 videam.
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 own 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 act 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 12ty 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 flatute of 34 mentioned, because there are many the other three shires, which have far greater use nidinances 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