THE

JURISDICTION OF THE MARCHES.

The effect of the first argument of the King's Solicitor-general, in maintaining the jurisdiction of the Council of the Marches over the four Shires.

THE question for the present is only upon the statute of 32 H. VIII. and though it be a great question, yet it is contracted into small room; for it is but a true construction of a monosyllable, the word march.

The exposition of all words resteth upon three proofs, the propriety of the word, and the matter precedent, and subsequent.

Matter precedent concerning the intent of those that speak the words, and matter subsequent touching the conceit and understanding of those that construe and receive them.

First therefore as to vis termini, the force and propriety of the word; this word marches signifieth no more but limits, or confines, or borders, in Latin limites, or confinia, or contermina; and therefore was derived at the first marchio, a marquis, which was comes limitaneus.

Now these limits cannot be linea imaginaria, but it must have some contents and dimension, and that can be no other but the counties adjacent: and for this construction we need not wander out of our own state, for we see the counties of Northumberland, Cumberland and Westmoreland, lately the borders upon Scotland. Now the middle shires were commonly called the east, west, and middle marches.

To proceed therefore to the intention of those that made the statute, in the use of this word; I shall prove that the parliament took it in this sense by three several arguments.

The first is, that otherwise the word should be idle; and it is a rule, verba sunt accipienda, ut sortientur effectum: for this word marches, as is confessed on the other side, must be either for the counties marches, which is our sense, or the lordships marchers, which is theirs; that is, such lordships, as by reason of the incursions and infestation of the Welsh, in ancient time, were not under the constant possession of either dominion, but like the bateable ground where the war played. Now if this latter sense be destroyed, then all equivocation ceaseth.

That it is destroyed, appears manifestly by the statute of 27 H. VIII. made seven years before the statute of which we dispute: for by that statute all the lordships marchers are made shire ground, being either annexed to the ancient counties of Wales, or to the ancient counties of England, or erected into new counties, and made parcel of the dominion of Wales, and so no more marches after the statute of 27: so as there were no marches in that sense at the time of the making of the statute of 34,

The second argument is from the comparing of the place of the statute, where upon our doubt riseth, namely, that there shall be and remain a lord president and council in the dominion of Wales and the marches of the same, etc. with another place of the same statute, where the word marches is left out; for the rule is, opposita juxta se posita magis elucescunt. There is a clause in the statute, which gives power and authority to the king to make and alter laws for the weal of his subjects of his dominion of Wales; there the word marches is omitted, because it was not thought reasonable to invest the king with a power to alter the laws, which is the subject's birthright, in any part of the realm of England; and therefore by the omission of the word marches in that place, you may manifestly collect the signification of the word in the other, that is to be meant of the four counties of England.

The third argument which we will use is this: the council of the marches was not erected by the act of

parliament, but confirmed; for there was a president and council long before in E. IV. his time, by matter yet appearing; and it is evident upon the statute itself, that in the very clause which we now handle, it referreth twice to the usage, as heretofore hath been used.

This then I infer, that whatsoever was the king's intention in the first erection of this court, was likewise the intention of the parliament in the establishing thereof, because the parliament builded upon an old foundation.

The king's intention appeareth to have had three branches, whereof every of them doth manifestly comprehend the four shires.

The first was the better to bridle the subject of Wales, which at that time was not reclaimed: and therefore it was necessary for the president and council there to have jurisdiction and command over the English shires; because that by the aid of them, which were undoubted good subjects, they might the better govern and suppress those that were doubtful subjects.

And if it be said, that it is true, that the four shires were comprehended in the commission of oyer and terminer, for the suppression of riots and misdemeanors, but not for the jurisdiction of a court of equity; to that I answer, that their commission of oyer and terminer was but gladius in vagina, for it was not put in practice amonst them; for even in punishment of riots and misdemeanors, they proceed not by their commission of oyer and terminer by way of jury, but as a council by way of examination. And again it was necessary to strengthen that court for their better countenance with both jurisdictions, as well civil as criminal, för gladius gladium juvat.

The second branch of the king's intention was to make a better equality of commerce, and intercourse in contracts and dealings between the subjects of Wales and the subjects of England; and this of necessity must comprehend the four shires: for otherwise, if the subject of England had been wronged by the Welsh on the sides of Wales, he might take his remedy nearer hand. But if the subject of Wales, for whose

weal and benefit the statute was chiefly made, had been wronged by the English in any of the shires, he might have sought his remedy at Westminster.

The third branch of the king's intent was to make a convenient dignity and state of the mansion and resiance of his eldest son, when he should be created prince of Wales, which likewise must plainly include the four shires: for otherwise to have sent primogenitum Regis to a government, which without the mixture of the four shires, as things then were, had more pearl than honour or command; or to have granted him only a power of lieutenancy in those shires, where he was to keep his state, not adorned with some authority civil, had not been convenient.

So that here I conclude the second part of that I am to say touching the intention of the parliament precedent.

Now touching the construction subsequent, the rule is good, optimus legum interpres consuetudo; for our labour is not to maintain an usage against a statute, but by an usage to expound a statute; for no man will say, but the word marches will bear the sense that we give it.

This usage or custom is fortified by four notable circumstances; first, that it is ancient and not late or recent; secondly, it is authorised and not popular or vulgar; thirdly, that it hath been admitted and quiet, and not litigious or interrupted; and fourthly, when it was brought in question, which was but once, it hath been affirmed judicio controversq.

For the first, there is record of a president and council that hath exercised and practised jurisdiction in these shires, as well sixty years before the statute, namely, since 18 E. IV. as the like number of years since: so that it is Janus bifrons, it hath a face backwards from the statute as well as forwards.

For the second, it hath received these allowances by the practice of that court, by suit originally commenced there, by remanding from the courts of Westminster, when causes within those shires have been commenced here above; sometimes in chancery, sometimes in the star-chamber, by the admittance

of divers great learned men and great judges, that have been of that council and exercised that jurisdiction; as at one time Bromley, Morgan, and Brook, being the two chief justices, and chief baron, and divers others; by the king's learned council, which always were called to the penning of the king's instructions; and lastly, by the king's instructions themselves, which though they be not always extant, yet it is manifest that since 17 H. VIII. when Princess Mary went down, that the four shires were ever comprehended in the instructions, either by name, or by that that amounts to so much. So as it So as it appears that this usage or practice hath not been an obscure custom practised by the multitude, which is many times erroneous, but authorised by the judgment and consent of the state: for as it is vera vor to say, maximus erroris populus magister; so it is dura vor to say, maximus erroris princeps magister.

For the third, it was never brought in question till 16 Eliz. in the case of one Wynde.

And for the fourth, the controversy being moved in that case, it was referred to Gerrard attorney, and Bromley solicitor, who was afterwards chancellor of England, and had his whole state of living in Shropshire and Worcester, and by them reported to the lords of the council in the star-chamber, and upon their report decreed, and the jurisdiction affirmed.

Lastly, I will conclude with two manifest badges and tokens, though but external yet violent in demonstration, that these four shires were understood by the word marches; the one the denomination of that council, which was ever in common appellation termed and stiled the council of the marches, or in the marches, rather than the council of Wales, or in Wales, and denominatio est a digniore. If it had been intended of lordships marchers, it had been as if one should have called my lord mayor, my lord mayor of the suburbs. But it was plainly intended of the four English shires, which indeed were the more worthy.

And the other is of the perpetual resiance and mansion of the council, which was evermore in the shires;