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.

Then he proceeded to the three particulars. And for the statute of 32, for trial of treason, he 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 lordship's marchers were made 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 almanack 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 fac simile, 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 |

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To the third head, touching the true intent of the statute, he first noted how naked their proof was in that kind, which was the life of the question, for all the rest was but in litera et in cortice.

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.

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 evermore 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 succeeding 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 proportion, 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.

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And therefore, if it be well weighed, that certificate makes against them; for as exceptio firmat legem 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 Chepstow-bridge, between Monmouth and Glocester, and the charge lay in part upon Glocestershire; 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 Glocestershire 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 aut subterfugere voluisse reticendo, aut obscurare dicendo."

All which hath been spoken on their part consisteth 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 angmentations, the court of wards, the court of survey; in all which there are clauses of attendance; where

upon 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, where in the very self-same 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 we 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." And 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 then 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 lord

first it is clear that the legal use of it is gone, when the thing was extinct, for "nomen est rei nomen;" so it remains but abusivè, as if one should call Guletta, Carthage, because it was once Carthage: and next, if the word should have both senses, and that we admit an equivocation, yet we so overweigh them upon the intent, as the balance is soon cast. Yet one thing I will note more, and that is, that there is a certain confusion of tongues on the other side, and that they cannot well tell themselves what they would have to be meant by the word marches; for one while they say it is meant for the lordships' marchers generally, another while they say that it is meant for the inward marches on Wales side only; and now at last they are driven to a poor shift, that there should be left some little lordship marcher in the dark, as casus omissus, not annexed at all to any county; but if they would have the statute satisfied upon that only, I say no more to them, but "aquila non capit muscas."

Now I will briefly remember unto you the state of our proofs of the word.

First, according to the laws of speech we prove it by the etymology or derivation, because march is the Saxon word for limit, and marchio is comes limitaneus; this is the opinion of Camden and others.

Next we prove the use of the word in the like case to be for counties, by the example of the marches of Scotland: for as it is prettily said in Walker's case by Gawdy, if a case have no cousin, it is a sign it is a bastard, and not legitimate; therefore we have showed you a cousin, or rather a brother, here within our own island, of the like use of the word. And whereas a great matter was made that the now middle shires were never called the marches of Scotland, but the marches of England against Scotland, or upon Scotland; it was first answered that that made no difference; because some times the marches take their name of the inward country, and sometimes of the out-country; so that it is but inclusive and exclusivè: as for example, that which we call in vulgar speech this day fortnight, excluding the day, that the law calls quindena, including the day; and so likewise, who will make a difference between the banks of the sea, and the banks against the sea, or upon the sea? But now to remove all scruple, we show them Littleton in his chapter "Of grand serjeanty," where he saith, there is a tenure by cornage in the marches of Scotland and we show them likewise the statute, of 25 Ed. III. "Of labourers," where they are also called the "marches of Scotland."

Then we show some number of bills exhibited to the council there before the statute, where the plaintiffs have the addition 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 Walliæ," and the contents are possessions only of Hereford and Glocestershire, (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."

We show likewise an ancient record of a patent to Herbert in 15 E. IV. where Kilpeck is laid to be in "com. Hereford in marchiis Walliæ;" and lastly, we show again the statute of 27 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 Lancashire, &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 Lancashire, 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 indorsement of accounts; or to give a court cognisance 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 out.

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