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spoken. For, touching the use of the word speech; and, therefore, if all commissions, and instructions, and practices, have coupled these four shires, it is not the map that will sever them.
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,
He observed also that all the strength of our proof, that concerned that point, they had passed over in silence, as belike not able to answer: for they had said nothing to the first intentions of the erections of the court, whereupon the Parliament built: nothing to the diversity of penning, which was observed in the statute of 34, leaving out the word marches, and resting upon the word Wales alone: nothing to the resiance, nothing to the denomination, nothing to the continual practice before the statute and after, nothing to the king's instructions, &c.
it ought to have been laid or showed that they | To the third head touching the true intent of dwelt 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 quesThen 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 cortice. said it was necessary that the word marches should be added to Wales, for which he gave this reason, that the statute did not only extend to the trial of treasons, which should be committed after the statute, but did also look back to treasons committed before: and, therefore, this statute being made but five years after the statute of 27, that extinguished the lordships' marchers, and looking back, as was said, was fit to be penned with words that might include the preterperfect tense as well as the present tense; for if it had rested only upon the word Wales, then a treason committed before the lordships' marchers were inade part of Wales might have escaped the law. To this also another answer was given, which was, that the word marches as used in that statute, could not be referred to the four shires, because of the words following, wherewith it is coupled, namely, in Wales, and the marches of the same, where the king's writ runs not.
To the two places of the statute of 34 itself, wherein the word marches is used for lordships' marchers; if they be diligently marked, it is merely sophistry to allege them; for both of them do speak by way of recital of the time past before the statute of 27, as the words themselves being read over will show without any other enforcement; so that this is still to use the almanac of the old year with the new.
To the commissions of oyer and terminer, which seemeth to be the best evidence they show for the continuance of the name in that tropical or abused sense, it might move somewhat, if this form of penning those commissions had been begun since the statute of 27. But we show forth the commission in 17 H. VIII., when the Princess Mary went down, running in the same manner verbatim, and in that time it was proper, and could not otherwise be. So that it appeareth that it was but merely a facsimile, and that notwithstanding the case was altered, yet the clerk of the crown pursued the former precedent; hurt, it did none, for the word marches is there superfluous.
And whereas it was said, that the words in those commissions were effectual, because else the proceeding in the four new erected shires of Wales should be coram non judice, that objection carrieth no colour at all; for it is plain, they have authority by the word principality of Wales, without adding the word marches; and that is proved by a number of places in the statute of 34, where, if the word Wales should not comprehend those shires, they should be excluded in effect of the whole benefit of that statute; for the word marches is never added in any of these places.
As for that, that they gather out of the title and preamble, that the statute was made for Wales, and for the weal and 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 evermote 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 suc ceeding 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 cases.
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 propor tion, 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, namely, 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 elgem 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 Chepstowbridge, 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 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 uut subterfugere voluisse reticendo, aut obscurare dicendo.
All which hath been spoken on their part con sisteth upon three proofs.
The first was by certain inferences to prove the intent of the statute.
The second was to prove the use of the word marches in their sense long after both statutes; both that of 27, which extinguished 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, namely, 32; in which ordinances there is the very clause, whereupon we dispute, namely, 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 means 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 construe it, that it should abridge the ancient subjects of England of their own laws.
The third was, that in a 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 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 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