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 council, but from the judges themselves, as an extenuation, or at least an obscuring of the proofs of the usage and practice, in that we shew 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 supplications 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 said, that so was Flintshire too, it matcheth not, because Flintshire is named in the statute for one of the twelve shires of Wales.

We shewed 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 I will add this only, that Cheshire went out secundo flumine, with the good-will of the state; and this is sought to be evicted adverso flumine, cross the state; and as they have 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 co-operate 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 Gloucester, etc. is named in the instructions of 1 Mar. and no man, I am sure, will think that Gloucester town should be in, and Gloucestershire out.

For the conceit, that they had it but jurisdictionem precariam, the precedents shew 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 shew 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 over-rule law.

But of the other side I could shew you many cases, where statutes have been expounded directly against their express letter to uphold precedents of usage, as 2 and 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 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 council 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 sit at this table, that have exercised jurisdiction over the shires in that county.

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, namely, that they shall hear and determine, etc. within any the places or counties within any of their commissions; and we have one of the commissions, wherein they were 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 Gloucester, the liberties of the dutchy of Lancaster, etc. 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 long 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.

DRAUGHT OF AN ACT

Against an usurious shift of gain, in deliverin commodities instead of money.

WHEREAS it is an usual practice, to the undoing and overthrowing many young gentlemen and others, that when men are in necessity, and desire to borrow money, they are answered, that money cannot be had, but that they may have commodities sold unto them upon credit, whereof they may make money as they can: in which course it ever comes to pass, not only that such commodities are bought at extreme high rates, and sold again far under foot to a double loss; but also that the party which is to borrow is wrapt in bonds and counter-bonds; so that upon a little money which he receiveth, he is subject to penalties and suits of great value.

Be it therefore enacted, by the authority of this present parliament, that if any man, after forty days from the end of this present session of parliament to be accounted, shall sell in gross sale any quantity of wares or commodities unto such a one as is no retailer, chapman, or known broker of the same commodities, and knowing that it is bought to be sold again, to help and furnish any person, that tradeth not in the same commodity, with money, he shall be without all remedy by law, or custom, or decree, or otherwise, to recover or demand any satisfaction for the said wares or commodities, what assurance soever he shall have by bond, surety, pawn or promise of the party, or any other in his behalf. And that all bonds and assurances whatsoever, made for that purpose directly or indirectly, shall be utterly void.

And be it further enacted, by the authority aforesaid, that every person, which shall after the time aforesaid be used or employed as a broker, mean or procurer, for the taking up of such commodities, shall forfeit for every such offence the sum of one hundred pounds, the same to be and shall be farther punished by six months' imprisonment, without bail or mainprise, and by the pillory.