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could not forget so soon what they had said in the the word marches; and that is proved by a number clause next before : and therefore by the marches of places in the statute of 34, where if the word they meant somewhat else besides that which was Wales should not comprehend those shires, they Wales. Then if they fly to the second signification, should be excluded in effect of the whole benefit of and say that it was meant by the lordships' marchers that statute ; for the word marches is never added in annexed the four English shires; that device is any of these places. merely nuper nata oratio, a mere fiction and invention To the third head, touching the true intent of the of wit, crossed by the whole stream and current of statute, he first noted how naked their proof was in practice ; for if that were so, the jurisdiction of the that kind, which was the life of the question, for all council should be over part of those shirestand in the rest was but in litera et in cortice. part not; and then in the suits commenced against any He observed also that all the strength of our proof, of the inhabitants of the four shires, it ought to have that concerned that point, they had passed over in been laid or showed that they dwelt within the an silence, as belike not able to answer : for they had cient lordships' marchers, whereof there is no sha- said nothing to the first intentions of the erections of dow that can be showed.
the court, whereupon the parliament built ; nothing Then he proceeded to the three particulars. And to the diversity of penning, which was observed in for the statute of 32, for trial of treason, he said it the statute of 34, leaving out the word marches, and was necessary that the word marches should be resting upon the word Wales alone; nothing to the added to Wales, for which he gave this reason, that resiance, nothing to the denomination, nothing to the the statute did not only extend to the trial of continual practice before the statute and after, notreasons which should be committed after the sta- thing to the king's instructions, &c. tute, but did also look back to treasons committed As for that, that they gather out of the title and before : and therefore this statute being made but five preamble, that the statute was made for Wales, and years after the statute of 27, that extinguished the for the weal and government of Wales, and at the lordships' marchers, and looking back, as was said, petition of the subjects of Wales, it was little to the was fit to be penned with words that might include the purpose : for no man will 'affirm on our part the preterperfect tense, as well as the present tense; for four English shires were brought under the jurisdicif it had rested only upon the word Wales, then a trea tion of that council, either first by the king, or after son committed before the lordship’s marchers were by the parliament, for their own sakes, being in made part of Wales, might have escaped the law. parts no farther remote ; but it was for congruity's
To this also another answer was given, which was, sake, and for the good of Wales, that that commixthat the word marches as used in that statute, could ture was requisite : and “ turpis est pars, quæ non not be referred to the four shires, because of the congruit cum toto." And therefore there was no words following, wherewith it is coupled, namely, in reason, that the statute should be made at their Wales, and the marches of the same, where the petition, considering they were not primi in intenking's writ runs not.
tione, but came ex consequenti. To the two places of the statute of 34 itself, where. And whereas they say that usage is nothing in the word marches is used for lordships' marchers ; against an act of parliament, it seems they do volunif they be diligently marked, it is merely sophistry tarily mistake, when they cannot answer; for we do to allege them ; for both of them do speak by way not bring usage to cross an act of parliament, where of recital of the time past before the statute of 27, it is clear, but to expound an act of parliament, as the words themselves being read over will show where it is doubtful, and evermore contemporanea without any other enforcement; so that this is still interpretatio, whether it be of statute or Scripture, to use the almanack of the old year with the new. or author whatsoever, is of greatest credit: for to
To the commissions of oyer and terminer, which come now, above sixty years after, by subtilty of wit seemeth to be the best evidence they show for the to expound a statute otherwise than the ages immecontinuance of the name in that tropical or abused diately succeeding did conceive it, is expositio consense, it might move somewhat, if this form of pen- tentiosa, and not naturalis. And whereas they ning those commissions had been begun since the extenuate the opinion of the attorney and solicitor, statute of 27. But we show forth the commission it is not so easy to do: for first they were famous in 17 H. VIII. when the princess Mary went down, men, and one of them had his patrimony in the running in the same manner verbatim, and in that shires; secondly, it was of such weight, as a decree time it was proper, and could not otherwise be. So of the council was grounded upon it; and thirdly, that it appeareth that it was but merely a fac simile, it was not unlike, but that they had conferred with and that notwithstanding the case was altered, yet the judges, as the attorney and solicitor do often use the clerk of the crown pursued the former prece in like cases. dent; hurt it did none, for the word marches is there Lastly, for the exemption of Cheshire he gave superfluous.
First, that the certificate in the whole And whereas it was said, that the words in those body of it, till within three or four of the last lines, commissions were effectual, because else the pro- doth rely wholly upon that reason, because it was a ceeding in the four new-erected shires of Wales county Palatine: and to speak truth, it stood not should be corum non judice, that objection carrieth with any great sense or proportion, that that place no colour at all; for it is plain, they have authority which was privileged and exempted from the jurisby the word principality of Wales, without adding | diction of the courts of Westminster, should be
meant by the parliament to be subjected to the marches in their sense long after both statutes; both jurisdiction of that council.
that of 27, which extinguished the lordships' marchSecondly, he said that those reasons, which we ers, and that of 34, whereupon our question ariseth. do much insist upon for the four shires, hold not The third was to prove an interruption of that for Cheshire, for we say it is fit the subject of Wales practice and use of jurisdiction, upon which we be not forced to sue at Westminster, but have his mainly insist, as the best exposition of the statute. justice near hand; so may he have in Cheshire, For the first of these, concerning the intention, because there is both a justice for common law and they brought five reasons. a chancery ; we say it is convenient for the prince, The first was that this statute of 34 was grounded if it please the king to send him down, to have upon a platform, or preparative of certain ordinances some jurisdiction civil as well as for the peace; so made by the king two years before, namely, 32; in may he have in Cheshire, as earl of Chester, And which ordinances there is the very clause wheretherefore those grave men had great reason to con upon we dispute, namely, That there should be and ceive that the parliament did not intend to include remain in the dominion and principality of Wales a Cheshire.
president and a council : in which clause nevertheAnd whereas they pinch upon the last words in less the word marches is left out, whereby they colthe certificate, namely, that Cheshire was no part lect that it came into the statute of 34, but as a of the dominion, nor of the marches, they must sup- slip, without any farther reach or meaning. ply it with this sense, not within the meaning of The second was, that the mischief before the the statute ; for otherwise the judges could not have statute, which the statute means to remedy, was, discerned of it; for they were not to try the fact, that Wales was not governed according to similitude but to expound the statute ; and that they did upon or conformity with the laws of England. And those reasons, which were special to Cheshire, and therefore, that it was a cross and perverse construchave no affinity with the four shires.
tion, when the statute laboured to draw Wales to And therefore, if it be well weighed, that certifi- the laws of England, to construe it, that it should cate makes against them; for as “exceptio firmat abridge the ancient subjects of England of their own legem in casibus non exceptis," so the excepting of laws. that shire by itself doth fortify, that the rest of the The third was, that in a case of so great importshires were included in the very point of difference. ance, it is not like that if the statute had meant to
After this he showed a statute in 18 Eliz. by include the four shires, it would have carried it in which provision is made for the repair of a bridge a dark general word, as it were noctanter, but would called Chepstow-bridge, between Monmouth and have named the shires to be comprehended. Glocester, and the charge lay in part upon Gloces The fourth was, the more to fortify the third tershire; in which statute there is a clause, that if reason, they observed that the four shires are rethe justices of peace do not their duty in levying of membered and named in several places of the stathe money, they shall forfeit five pounds to be re- tute, three in number; and therefore it is not like covered by information before the council of the that they would have been forgotten in the principal marches; whereby he inferred that the parliament place, if they had been meant. would never have assigned the suit to that court, The fifth and last was, that there is no clause of but that it conceived Glocestershire to be within the attendance, that the sheriffs of the four shires should jurisdiction thereof. And therefore he concluded attend the lord president and the council; wherein that here is in the nature of a judgment by parlia- there was urged the example of the acts of parliament, that the shires are within the jurisdiction. ment, which erected courts; as the court of ang
mentations, the court of wards, the court of survey; The third and last argument of the king's solicitor in all which there are clauses of attendance; where
in the case of the marches in reply to serjeant upon they inferred that evermorexwhere a statute Harris.
gives a court jurisdiction, it strengtheneth it with a This case groweth now to some ripeness, and I clause of attendance; and therefore no such clause am glad we have put the other side into the right being in this statute, it is like there was no jurisway; for in former arguments they laboured little diction meant. Nay, farther, they noted, that in upon the intent of the statute of 34 H. VIII. and this very statute for the justices of Wales, there is busied themselves in effect altogether about the a clause of attendance from the sheriffs of Wales. force and use of the word marches : but now finding In answer to their first reason, they do very well, that "litera mortua non prodest,” they offer at the in my opinion, to consider Mr. Attorney's business true state of the question, which is the intent: I am and mine, and therefore to find out for us evidence determined therefore to reply to them in their own and proofs, which we have no time to search; for order, “ut manifestum sit,” as he saith, “me nihil certainly nothing can make more for us than these aut subterfugere voluisse reticendo, aut obscurare ordinances, which they produce; for the diversity of dicendo."
penning of that clause in the ordinances, where the All which hath been spoken on their part con word marches is omitted, and that clause in the sisteth upon three proofs.
statute where the word marches is added, is a clear The first was by certain inferences to prove the and perfect direction what was meant by that word. intent of the statute.
The ordinances were made by force and in pursuance The second was to prove the use of the word of authority given to the king by the statute of 27 ;
to what did the statute extend ? Only to Wales. Lastly, it is strange that all other places do reAnd therefore the word marches in the ordinances is quire courts of summary justice, and esteem them to left out; but the statute of 34 respected not only be privileges and graces ; and in this cause only they Wales, but the commixed government, and therefore are thought to be servitudes and loss of birthright. the word marches was put in. They might have re The universities have a court of summary justice, membered that we built an argument upon the and yet I never heard that scholars complain their difference of penning of that statute of 34 itself in birthright was taken from them. The stannaries the several clauses of the same ; for that in all other have them, and you have lately affirmed the jurisclauses, which concern only Wales, the word marches diction; and yet you have taken away no man's is ever omitted; and in that clause alone that con- birthright. The court at York, whosoever looks cerneth the jurisdiction of the president and council, into it, was erected at the petition of the people, and it is inserted. And this our argument is notably yet the people did not mean to cast away their fortified by that they now show of the ordinances, birthright. The court of wards is mixed with diswhere in the very self-same clause touching the cretion and equity ; and yet I never heard that inpresident and council, because the king had no au fants and innocents were deprived of their birthright. thority to meddle but with Wales, the word marches London, which is the seat of the kingdom, hath a is omitted. So that it is most plain that this word court of equity, and holdeth it for a grace and comes not in by chance or slip, but with judgment favour ; how then cometh this case to be singular ? and purpose, as an effectual word; for, as it was for- | And therefore these be new phrases and conceits promerly said, "opposita juxta se posita magis elucesceeding of error or worse; and it makes me think cunt;" and therefore I may likewise urge another that a few do make their own desires the desires place in the statute which is left out in the ordinance; of the country, and that this court is desired by for I find there is a clause that the town of Bewdley, the greater number, though not by the greater which is confessed to be no lordships' marcher, but stomachs. to lie within the county of Worcester ; yet because In answer to the third reason, if men be conit was an exempted jurisdiction, is by the statute versant in the statutes of this kingdom, it will apannexed unto the body of the said county. First, pear to be no new thing to carry great matters in this shows that the statute of 34 is not confined to general words without other particular expressing. Wales, and the lordships' marchers, but that it inter- Consider but of the statute of 26 H. VIII. which meddles with Worcestershire. Next, do you find any hath carried estates tails under the general words of such clause in the ordinance of 32 ? No. Why ? estates of inheritance. Consider of the statute of Because they were appropriated to Wales. So that | 16 R. II. of præmunire, and see what great matters in my opinion nothing could enforce our exposition are thought to be carried under the word alibi. And better than the collating of the ordinance of 32 with therefore it is an ignorant assertion to say that the the statute of 34.
statute would have named the shires, if it had In answer to the second reason, the course, that I meant them. see often taken in this cause, makes me think of the Secondly, the statute had more reason to pass it phrase of the Psalm, "starting aside like a broken over in general words, because it did not ordain a new bow :” so when they find their reasons broken, they matter, but referreth to usage : and though the start aside to things not in question. For now they statute speaks generally, yet usage speaks plainly speak, as if we went about to make the four shires and particularly, which is the strongest kind of Wales, or to take from them the benefit of the laws utterance or expressing. “Quid verba audiam, cum of England, or their being accounted amongst the facta videam?” ancient counties of England: doth any man say that And thirdly, this argument of theirs may be those shires are not within the circuits of England, strongly retorted against them: for as they infer but subject to the justices of Wales ? or that they that the shires were not meant, because they were should send but one knight to the parliament, as the not included by name; so we infer that they are shires of Wales do? or that they may not sue at meant, because they are not excepted by name, as is Westminster, in chancery, or at common law, or the usual by way of proviso in like cases: and our inlike? No man affirms any such things; we take ference hath far greater reason then theirs, because nothing from them, only we give them a court of at the time of the making of the statute they were summary justice in certain causes at their own doors. known to be under the jurisdiction : and therefore
And this is nova doctrina to make such an oppo- that ought to be most plainly expressed, which sition between law and equity, and between formal should work a change, and not that which should justice and summary justice. For there is no law continue things as they were. under heaven which is not supplied with equity; In answer to their fourth reason, it makes likefor “ summum jus, summa injuria,” or as some have wise plainly against them; for there be three places it, summa lex, summa crux.'' And therefore all where the shires be named, the one for the extinnations have equity ; but some have law and equity guishing of the custom of gavelkind ; the second for mixed in the same court, which is the worse; and the abolishing of certain forms of assurance which some have it distinguished in several courts, which is were too light to carry inheritance and freehold : the the better. Look into any counties Palatine, which third for the restraining of certain franchises to that are small models of the great government of kingdoms, state they were in by a former statute. In these and you shall never find any but had a chancery. three places the words of the statute are, The lord
ships' marchers annexed unto the counties of Here Now to pass from the intent to the word; first, I ford, Salop, &c.
will examine the proofs they have brought that the Now mark, if the statute conceived the word word was used in their sense after the statute 27 and marches to signify lordships' marchers, what needeth 34; then I will consider what is gained, if they this long circumlocution? It had been easier to have should prove so much: and lastly, I will briefly state said, within the marches. But because it was con our own proofs, touching the use of the word. ceived that the word marches would have compre For the first, it hath been said, that whereas I hended the whole counties, and the statute meant called the use of the word marches after the statute but of the lordships' marchers annexed ; therefore of 27, but a little chime at most of an old word, they were enforced to use that periphrasis or length which soon after vanished, they will now ring us a of speech.
peal of statutes to prove it; but if it be a peal, I am In answer to the fifth reason, I give two several sure it is a peal of bells, and not a peal of shot; for answers: the one, that the clause of attendance is it clatters, but it doth not strike: for of all the catasupplied by the word incidents ; for the clause of logue of statutes I find scarcely one, save those that establishment of the court hath that word, “with all were answered in my former argument; but we may incidents to the same as heretofore hath been used:” with as good reason affirm in every of them the for execution is ever incident to justice or jurisdic-word marches to be meant of the counties' marches, tion. The other, because it is a court, that standeth as they can of the lordships' marchers: for to begio not by the act of parliament alone, but by the king's upwards : instructions, whereto the act refers. Now no man The statute 39 Eliz. for the repair of Wiltonwill doubt but the king may supply the clause of bridge, no doubt doth mean the word marches for the attendance ; for if the king grant forth a commission counties; for the bridge itself is in Herefordshire, of oyer and terminer, he may command what sheriff and the statute imposeth the charge of reparation he will to attend it ; and therefore there is a plain upon Herefordshire by compulsory means, and perdiversity between this case and the cases they vouch mitteth benevolence to be taken in Wales, and the of the court of wards, survey and augmentations : for marches; who doubts, but this meant of the other they were courts erected de novo by parliament, and three shires, which have far greater use of the had no manner of reference either to usage or in- bridge than the remote counties of Wales ? structions; and therefore it was necessary that the For the statute 5 Eliz. concerning perjury, it hath whole frame of those courts, and their authority a proviso, that it shall not be prejudicial to the both for judicature and execution, should be described council of the marches for punishing of perjury ; and expressed by parliament. So was it of the au who can doubt but that here marches is meant of thority of the justices of Wales in the statute of 34 the shires, considering the perjuries committed in mentioned, because there are many ordinances de them have been punished in that court as well as in novo concerning them; so that it was a new erection, Wales ? and not a confirmation of them.
For 2 Ed. VI. and the clause therein for restrainThus have I, in confutation of their reasons, ing tithes of marriage-portions in Wales and the greatly, as I conceive, confirmed our own, as it marches, why should it not be meant of counties ? were with new matter; for most of that they have For if any such customs had crept and encroached said made for us. But as I am willing to clear your into the body of the shires out of the lordships' judgments, in taking away the objections ; so I must marchers, no doubt the statute meant to restrain farther pray in aid of your memory for those things them as well there as in the other places. which we have said, whereunto they have offered no And so for the statute 32 H. VIII. which ordains manner of answer; for unto all our proofs which we that the benefit of that statute for distress to be had made touching the intent of the statute, which they by executors, should not extend to any lordship in grant to be the spirit and life of the question, they Wales, or the marches of the same where mises are said nothing: as not a word to this; That other- paid, because that imports a general release; what wise the word marches in the statute should be idle absurdity is there, if there the marches be meant or superfluous : not a word to this ; That the sta- for the whole shires ? for if any such custom had tute doth always omit the word marches in things spread so far, the reason of the statute is alike. that concern only Wales: not a word to this ; That As for the statutes of 37 H. VIII, and 4 Ed. IV. the statute did not mean to innovate, but to ratify, for the making and appointing of the custos rotula and therefore if the shires were in before, they are rum, there the word marches must needs be taken in still: not a word to the reason of the commixed for limits, according to the etymology and derivagovernment, as that it was necessary for the reclaim- tion: for the words refer not to Wales, but are thus, ing of Wales to have them conjoined with the shires; “ within England and Wales, and other the king's that it was necessary for commerce and contracts, dominions, marches and territories,” that is, limits and properly for the ease of the subjects of Wales and territories ; so as I see no reason, but I may against the inhabitants of the shires; that it was not truly maintain my former assertion, that after the probable that the parliament meant the prince should lordships' marchers were extinct by the statute of have no jurisdiction civil in that place, where he kept 27, the name also of marches was discontinued, and his house. To all these things, which we esteem the rarely if ever used in that sense. weightiest, there is altum silentium, after the manner But if it should be granted that it was now and of children that skip over where they cannot spell. then used in that sense, it helps them little; for
first it is clear that the legal use of it is gone, when | believe them, if it were in matter of accounts: we the thing was extinct, for “nomen est rei nomen; do not allege them as auditors, but as those that so it remains but abusivè, as if one should call speak English to prove the common use of the word, Guletta, Carthage, because it was once Carthage : "loquendum ut vulgus.” and next, if the word should have both senses, and We show likewise an ancient record of a patent that we admit an equivocation, yet we so overweigh to Herbert in 15 E. IV. where Kilpeck is laid to be them upon the intent, as the balance is soon cast. in “ com. Hereford in marchiis Walliæ;" and lastly,
Yet one thing I will note more, and that is, that we show again the statute of 27 E. III. where prothere is a certain confusion of tongues on the other vision is made, that men shall labour in the summer side, and that they cannot well tell themselves what where they dwell in the winter; and there is an they would have to be meant by the word marches ; exception of the people of the counties of Stafford for one while they say it is meant for the lordships' and Lancashire, &c. and of the marches of Wales marchers generally, another while they say that it and Scotland; where it is most plain, that the is meant for the inward marches on Wales side marches of Wales are meant for counties, because only; and now at last they are driven to a poor they are coupled both with Stafford and Lancashire, shift, that there should be left some little lordship which are counties, and with the marches of Scotmarcher in the dark, as casus omissus, not annexed land, which are likewise counties; and as it is inat all to any county ; but if they would have the formed, the labourers of those four shires do come statute satisfied upon that only, I say no more to forth of their shires, and are known by the name of them, but “aquila non capit muscas."
Cokers to this day. Now I will briefly remember unto you the state To this we add two things, which are worthy of our proofs of the word.
consideration; the one, that there is no reason to First, according to the laws of speech we prove it put us to the proof of the use of this word marches by the etymology or derivation, because march is the sixty years ago, considering that usage speaks for Saxon word for limit, and marchio is comes limita- us; the other, that there ought not to be required neus; this is the opinion of Camden and others. of us to show so frequent an use of the word marches
Next we prove the use of the word in the like of ancient time in our sense, as they showed in case to be for counties, by the example of the theirs, because there was not the like occasion: for marches of Scotland: for as it is prettily said in when a lordship marcher was mentioned it was of Walker's case by Gawdy, if a case have no cousin, necessity to lay it in the marches, because they were it is a sign it is a bastard, and not legitimate ; there out of all counties; but when land is mentioned in fore we have showed you a cousin, or rather a any of these counties, it is superfluous to add, in the brother, here within our own island, of the like use marches; so as there was no occasion to use the of the word. And whereas a great matter was word marches, but either for a more brief and commade that the now middle shires were never called pendious speech to avoid the naming of the four the marches of Scotland, but the marches of England shires, as it is in the statute of 25 E. III. and in against Scotland, or upon Scotland; it was first an- the indorsement of accounts; or to give a court swered that that made no difference; because some cognisance and jurisdiction, as in the bills of comtimes the marches take their name of the inward plaint; or ex abundanti, as in the record of Kilpeck. country, and sometimes of the out-country; so that There resteth the third main part, whereby they it is but inclusive and exclusivè: as for example, endeavour to weaken and extenuate the proofs which that which we call in vulgar speech this day fort. we offer touching practice and possession, wherein night, excluding the day, that the law calls quindena, they allege five things. including the day; and so likewise, who will make First, that Bristol was in until 7 Eliz. and then a difference between the banks of the sea, and the exempted. banks against the sea, or upon the sea ?
Secondly, that Cheshire was in until 11 Eliz. and to remove all scruple, we show them Littleton in then went out. his chapter “Of grand serjeanty," where he saith, Thirdly, they allege certain words in the instructhere is a tenure by cornage in the marches of Scot- tions to Cholmley vice-president in 11 Eliz. at which land: and we show them likewise the statute, of time the shires were first comprehended in the in25 Ed. III. “Of labourers,” where they are also structions by name, and in these words, " annexed called the “marches of Scotland."
by our commission :” whereupon they would infer Then we show some number of bills exhibited to that they were not brought in the statute, but only the council there before the statute, where the came in by instructions, and do imagine that when plaintiffs have the addition of place confessed within Cheshire went out they came in. the bodies of the shires, and no lordships' marchers, Fourthly, they say, that the intermeddling with and yet are laid to be in the marches.
those four shires before the statute was but an usurThen we show divers accounts of auditors in the pation and toleration, rather than any lawful and duchy from H. IV. downwards, where the indorse-settled jurisdiction; and it was compared to that, ment is "in marchiis Walliæ," and the contents are which is done by the judges in their circuits, who possessions only of Hereford and Glocestershire, end many causes upon petitions. (for in Shropshire and Worcestershire the duchy Fifthly, they allege Sir John Mullen's case, where hath no lands;) and whereas they would put it off it is said, “ consuetudo non præjudicat veritati.” with a "cuique in sua arte credendum,” they would There was moved also, though it were not by