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of place confessed within the bodies of the shires, and no lordships marchers, and yet are laid to be in the marches.

Then we show divers accounts of auditors in the Duchy from H. IV. downwards where the indorsement is in marchiis Wallie, and the contents are possessions only of Hereford and Gloucestershire (for in Shropshire and Worcestershire the Duchy hath no lands); and whereas they would put it off with a cuique in sua arte credendum,—they would believe them, if it were in matter of accounts; we do not allege them as auditors, but as those that speak English to prove the common use of the word;―loquendum ut vulgus.

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We show likewise an ancient record of a patent to Harbert in 15 E. IV. where Kilpeck is laid to be in com. Hereford in marchïïs Walliæ; and lastly we show again the statute of 25 E. III. where provision is made, that men shall labour in the summer where they dwell in the winter, and there is an exception of the people of the counties of Stafford and Lancaster, &c. and of the marches of Wales and Scotland; where it is most plain, that the marches of Wales are meant for counties, because they are coupled both with Stafford and Lancaster, which are counties, and with the marches of Scotland, which are likewise counties; and as it is informed, the labourers of those four shires do come forth of their shires, and are known by the name of Cokers to this day.

To this we add two things, which are worthy consideration; the one, that there is no reason to put us to the proof of the use of this word marches sixty years ago, considering that usage speaks for us; the other, that there ought not to be required of us to show so frequent an use of the word marches of ancient time in our sense, as they showed in theirs, because there was not the like occasion: for when a lordship marcher was mentioned it was of necessity to lay it in the marches, because they were out of all counties, but when land is mentioned in any of these counties, it is superfluous to add in the marches; so as there was no occasion to use the word marches, but either for a more brief and compendious speech to avoid the naming of the four shires, as it is in the statute of 25 E. III. and in the endorsement of accounts, or to give a court cognizance and jurisdiction, as in the bills of complaint; or ex abundanti, as in the record of Kilpeck.

There resteth the third main part, whereby they endeavour

to weaken and extenuate the proofs which we offer touching practice and possession, wherein they allege five things.

First, that Bristol was in until 7 Eliz. and then exempted. Secondly, that Cheshire was in until 11 Eliz. and then went


Thirdly, they allege certain words in the instructions to Cholmley, vice-president, in 11 Eliz. at which time the shires were first comprehended in the instructions by name and in these words annexed by our commission: whereupon they would infer that they were not brought in the statute, but only came in by instructions, and do imagine that when Cheshire went out, they came in.

Fourthly they say, that the intermeddling with those four shires before the statute was but an usurpation and toleration, rather than any lawful and settled jurisdiction; and it was compared to that which is done by the judges in their circuits, who end many causes upon petitions.

Fifthly they allege Sir John Mullen's case, where it is said consuetudo non præjudicat veritati.

There was moved also, though it were not by the counsel, but from the judges themselves, as an extenuation, or at least an obscuring of the proof of the usage and practice, in that we show forth no instructions from 17 H. VIII. to 1 Mariæ.

To these six points I will give answer, and, as I conceive, with satisfaction.

For Bristol I say it teacheth them the right way, if they can follow it; for Bristol was not exempt by any opinion of law, but was left out of the instructions upon supplication made to the Queen.

For Cheshire we have answered it before, that the reason was because it was not probable that the statute meant to make that shire subject to the jurisdiction of that council, considering it was not subject to the high courts at Westminster, in regard it was a county palatine. And whereas they say, that so was Flintshire too, it matcheth not; because Flintshire is named in the statute for one of the twelve shires of Wales.

We showed you likewise effectual differences between Cheshire and these other shires: for that Cheshire hath a Chancery in itself, and over Cheshire the Princes claim jurisdiction as Earl of Chester; to all which you reply nothing. Therefore Iwill add this only, that Cheshire went out secundo

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flumine, with the good will of the state; and this is sought to be evicted adverso flumine, cross the state; and as they have the' opinion of four judges for the excluding of Cheshire, so we have the opinions of two great learned men, Gerrard and Bromley, for the including of Worcester: whose opinions, considering it was but matter of opinion, and came not judicially in question, are not inferior to any two of the other; but we say that there is no opposition or repugnancy between them, but both may stand.

For Cholmley's instructions, the words may well stand that those shires are annexed by commission; for the King's commission or instructions (for those words are commonly confounded) must cooperate with the statute, or else they cannot be annexed. But for that conceit that they should come in but in 11, when Cheshire went out, no man that is in his wits can be of that opinion, if he mark it. For we see that the town of Glocester, &c. is named in the instructions of 1 Mar. and no man, I am sure, will think that Glocester town should be in, and Glocestershire out.

For the conceit, that they had it but jurisdictionem precariam, the precedents show plainly the contrary; for they had coercion, and they did fine and imprison, which the judges do not upon petitions; and besides, they must remember that many of our precedents which we did show forth were not of suits originally commenced there, but of suits remanded from hence out of the King's courts, as to their proper jurisdiction.

For Sir John Mullen's case, the rule is plain and sound; that where the law appears, contrary usage cannot control law: which doth not at all infringe the rule of optima legum interpres consuetudo; for usage may expound law, though it cannot overrule law.

But of the other side I could show you many cases where statutes have been expounded directly against their express letter to uphold precedents and usage, as 2, 3 Phil. et Mar. upon the statute of Westminster, that ordained that the judges coram quibus formatum erit appellum shall inquire of the damages, and yet the law ruled that it shall be inquired before the judges of Nisi Prius. And the great reverence given to precedents appeareth in 39 H. VI. 3 E. IV. and a number of other books. And the difference is exceedingly well taken in

I have added the article, which the MS. omits.

Slade's case, Coke's Reports, 4. that is, where the usage runs but amongst clerks, and where it is in the eye and notice of the judge; for there it shall be presumed, saith the book, that if the law were otherwise than the usage hath gone, that either the counsel or the parties would have excepted to it, or the judges ex officio would have discerned of it, and found it; and we have ready for you a calendar of judges more than at this table, that have exercised jurisdiction over the shires in that county.1

As for exception touching the want of certain instructions, I could wish we had them; but the want of them in my understanding obscureth the case little. For let me observe unto you, that we have three forms of instructions concerning these shires extant; the first names them not expressly, but by reference it doth, viz. that they shall hear and determine, &c. within any of the places or counties within any of their commissions; and we have one of the commissions, wherein they are named; so as upon the matter they are named. And of this form are the ancient instructions before the statute, 17 H. VIII. when the Princess Mary went down.

The second form of instructions go farther; for they have the towns and exempted places within the counties named, with tanquam,—as well within the city of Glocester, the liberties of the duchy of Lancaster, &c. as within any of the counties of any of their commissions; -which clearly admits the counties to be in before. And of this form are the instructions 1 Mariæ, and so along until 11 Eliz.

And the third form, which hath been continued ever since, hath the shires comprehended by name. Now it is not to be thought, but the instructions which are wanting are according to one of these three forms which are extant. Take even your

choice, for any of them will serve to prove that the practice there was ever authorised by the instructions here. And so upon the whole matter, I pray report to be made to his Majesty, that the president and the council hath jurisdiction, according to his instructions, over the four shires, by the true construction of the statute of 34 H. VIII.

1 So in MS.

4 Co. 94.

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