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And the other is of the perpetual reliance and man-
bion of the council, which was evermore in the shire:; j



262 The Jurisdiction of Ike Marches.

and to imagine that a court should not have jurisdic-
tion where it sitteth, is a thing utterly improbable, for
they should be tanquam piscis in arido.

So as upon the whole matter, I conclude that the
word marches in that place by the natural sense, and
true intent of the statute, is meant the four shires".

The. effect of that, that was spoken by Serjeant Hutton
and scrjeant Harris > in answer of the former argu-
ment \ and for the excluding of the jurisdiction of the
marches in the Jour shires.

THAT, which they both did deliver, was reduced
to three heads:

The first to prove the use of the word marches for
lordships marchers.

The second to prove the continuance of that use
of the word, after the statute of 27, that made the
lordships marchers shire.-grounds ; whereupon it was
inferred, that though the marches were destroyed in
nature, yet they remained in name.

The third w r as some collections they made upon the
stat-ute of 31- ; whereby they inferred, that that statute
intended that word in that signification.

For the first, they did alledge divers statutes before
27 Hen. VIII. and divers book-cases of law in print,
and divers offices and records, wherein the word
marches of Wales was understood of the lordships
marchers.

They said farther, and concluded, that whereas we
shew our sense of the word but rare, they shew theirs
common and frequent ; and whereas we shew it but
in a vulgar use and acceptation, they shew theirs in a
legal use in statutes, authorities of books, and ancient
records.

They said farther, that the example we brought of
marches upon Scotland, was not like, but rather con-
trary ; for they were never called marches of Scotland,
but the marches of England : whereas the statute of
34 doth not speak of the mar cites of England, but of
the marches of Wales.



The Jurisdiction of the Marches.

They said farther, that the county of Worcester did
in no place or point touch upon Wales, and therefore
that county could not be termed marches.

To the second they produced three proofs ; fisst,some
words in the statute of 2 FI. VIII. where the statute,
providing for a form of trial for treason committed
in Wales, and the marches thereof, doth use that word,
which was in time after the statute of 27 ; whereby
they prove the use of the word continued.

The second proof was out of two places of the sta-
tute, whereupon we dispute, where the word marches
is used for the lordships of marchers.

The third proof was the stile and form of the com-
mission of oyer and ter miner even to this day, which
run to give power and authority to the president and
council there, infra principalitat. WaLUtC y and infra
the four counties by name, with this clause farther, et
marchtas WallidC eixdem comitalibiis adjacent' : whereby
they infer two things strongly, the one that the marches
of Wales must needs be a distinct thing from the four
counties; the other that the word marches was used
for the lordships marchers long after both statutes.

They said farther, that otherwise the proceeding,
which had been in the four new erected counties of
Wales by the commission of oyer and tmniner, by
force whereof many had been proceeded with both for
life, and othcrways, should be called in question, as
cor am nonjudice, insomuch as they neither were part
of the principality of Wales, nor part of the four
shires; and therefore must be contained by the word
marches, or not at all.

For the third head, they did insist upon the statute
of 34, and upon the preamble of the same statute.

The title being an act for certain ordinances in the
King's Majesty's dominion and principality of Wales;
and the preamble being tor the tender zeal and affec-
tion that the King bears to his subjects of Wales ; and
again, at the humble suit and petition of his subjects -
of Wales: whereby they infer that the statute had no
purpose to extend or intermeddle with any. part of the
King's dominions or subjects but only within Wales.



<2<54 *!TKt Jurisdiction of the Marches.

And for usage and practice, they said, it was no-
thing against an act of parliament.

And for the instructions, they pressed to see the
instructions immediately after the statute made.

And for the certificate and opinions of Gerrard and
Bromley, they said they doubted not, but that if it
were now referred to the attorney and solicitor, they
would certify as they did.

And lastly, they relied, as upon their principal
strength, upon the precedent of that, which was done
of the exempting of Cheshire from the late jurisdiction
of the said council; for they said, that from 34 of
H. VIII. until 1 1 of Queen Eliz. the court of the
marches did usurp jurisdiction upon that county, be-
ing likewise adjacent to Wales, as the other four are ;
but that in the eleventh year of Queen Elizabeth afore-
said, the same being questioned at the suit of one
Radforde, was referred to the lord Dyer, and three
other judges, who, by their certificate at large remain-
ing of record in the chancery, did pronounce the said
shire to be exempted, and that in the conclusion of
their certificate they gave this reason, because it was
no part of the principality or marches of Wales. By
which reason, they say, it should appear their opinion
was, that the word 'marches could not extend to
counties adjacent. This was the substance of their
defence.

The reply of the King's Solid tor to the arguments of
the two Serjeants.

HAVING divided the substance of their arguments,
ut supra, he did pursue the same division in his reply,
observing nevertheless both a great redundancy and a
great defect in that which was spoken. For touching
the use of the word marches, gt'eat labour had been
taken, which was not denied : but touching the in-
tent of the-parliament, and the reasons to demonstrate
the same, which were the life of the question, little or
nothing had been spoken.

And therefore as to the first head> that the word



The Jurisdiction of the Marches'.

inarches had been often applied to the lordships
marchers, he said it was the sophism which is called
sciomachia, fighting with their shadows ; and that the
sound of so many statutes, so many printed hook
cases, so many records, were nomhin mitgna, but they
did not press the question ; for we grant that the word
marches had significations, sometimes for the coun-
ties, sometimes for their ionlihips marchers, like as
Northampton and Warwick are sometimes taken for
the towns of Northampton and Warwick, and some-
times for the counties of Northampton and Warwick.
And Dale and Sale are sometimes taken for the vil-
lages or hamlets of Dale and Sale, and sometimes
taken for the parishes of Dale and Sale : and therefore
that the most part of that they had said, went not to
the point.

To that answer, which w r as given to the example of
the middle shires upon Scotland, it was not ad idem;
for we used it to prove that the word marches may and
doth refer to whole counties ; and so much it doth ma-
nifestly prove; neither can they deny it. But then
they pinch upon the addition, because the English
counties adjacent uponScotland are called the marches
of England, and the English counties adjacent upon
Wales are called the marches of Wales ; which is but
a difference in phrase : for sometimes limits and
borders have their names of the inward county, and
sometimes of the outward county ; for the distinction
of exclusive and inclusive is a distinction both in time
and place ; as we see that that which we call this day
fortnight, excluding the day, the French and the law-
phrase calls this day fifteen days, or quindcna, in-
cluding the day. And if they had been called the
marches upon Wales or the inarches against Wales,
then it had been clear and plain; and what difference
between the banks of the sea and the banks against the
sea ? So that he took this to be but a toy of caviliation,
for that phrases of speech are ad placitum, el recipiunt
casum.

As to the reason of the map, that the county of
Worcester doth no way touch upon Wales, it is true 5



266 The Jurisdiction of the Marches.

and I do find when the lordships marchers were an-
nexed, some were laid to every other of the three
shires, but none to Worcester. And no doubt but this
emboldened Wynd to make the claim to Worcester,
which he durst not have thought on for any of the
other three. But it falls out well that that, which is
the weakest in probability, is strongest in proof; for
there is a case ruled in that more than in the rest.
But the true reason is, that usage must over-rule pro-
priety of speech ; and therefore if all commissions, and
instructions, and practices have coupled these four
shires, it is not the map that will sever them.

To the second head he gave this answer. First he
observed in general that they had not shewed one
statute, or one book-case, or one record, the com-
missions of oytr and terminer only excepted, wherein
the word marches was used for lordships marchers
since the statute of 34. So that it is evident, that as
they granted the nature of those marches was destroyed
and extinct by 91 ; so the name was discontinued
soon after, and did but remain a very small while, like
the sound of a bell, after it hath been rung ; and as
indeed it is usual when names are altered, that the old
name, which is expired, will continue for a small
time.

Secondly, he said, that whereas they had made the
comparison, that our acceptation of the word was
popular, and theirs was legal, because it was extant
in book-cases, and statutes, and records, they must
needs confess that they are beaten from that hold :
for the name ceased to be legal clearly by the law of
27, which made the alteration in the thing itself,
whereof the name is but a shadow ; and if the name
did remain afterwards, then it was neither legal, nor
so much as vulgar, but it was only by abuse, and by
a trope or catachresis.

Thirdly, he shewed the impossibility how that sig-
nification should continue, and be intended by the
statute of 34. For if it did, it must be in one of these
two senses, either that it was meant of the lordships
marchers made part of Wales, or of the lordships
marchers annexed to the four shires of England.



The Jurisdiction of the Marches. 267

For the first of these, it is plainly impugned by the
statute itself: for the first clause of the statute doth set
forth that the principality and dominion of Wales shall
consist of twelve shires : wherein the four new-erected
counties, which were formerly lordships marchers, and
whatsoever else was lordships marchers annexed to
the ancient counties of Wales, is comprehended ; so
that of necessity all that territory or border must be
Wales : then folio weth the clause immediately ^ where-
upon we now differ, namely, that there shall be and
remain a president and council in the principality of
Wales, and the marches of the same ; so that the parlia-
ment could not forget so soon what they had said in the
clause next before : and therefore by the marches they
meant somewhat else besides that which was Wales.
Then if they fly to the second signification, and say
that it was meant by the lordships marchers annexed
to the four English shires ; that device is merely nu-
per nata oratio, a mere 'fiction and invention of wit,
crossed by the whole stream and current of practice ;
for if that were so, the jurisdiction of the council
should be over part of those shires, and in part not;
and then in the suits commenced against any of the
inhabitants of the four shires, it ought to have been
laid or shewed that they dwelt within the ancient lord-
ships marchers, whereof there is no shadow that can
be shewed.

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, aa
well as the present tense ; for if it had rested only
upon the word Wales, then a treason committed be-
fore the lordships marchers were made part of Wales,
might have escaped the law.



The Jurisdiction of the Marches.

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 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
alledge them ; for both of them do speak by way of
recital of the time past before the statute of 27, as the
\vorcls themselves being read over will shew 7 without
any other inforcement ; so that this is still to use the
almanack of the old year with the new.

To the commissions of oijer and terminer, which
seerheth to be the best evidence they shew for the con-
tinuance 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 shew forth the commission in 17 H. VIII.
when the Princess Mary \vent 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 w r as but merely 'z.fac simile, and that notwithstand-
ing 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 proceed-
ing in the four new-erected shires of Wales should be
cor am nonjudice, that objection carrieth no colour at
all ; for it is plain, they have authority by the word
principality of Wales, without adding the word
marches; and that is proved by a number 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.

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 litcra ct in cortice.



The Jurisdiction of the Marches. 269

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 rest-
ing 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, etc.

As for that, that they gather out of the title and pre-
amble, that the statute was made for Wales, and for
the weal and government of Wales, and at the peti-
tion of the subjects of Wales, it was little to the pur-
pose ; 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 requi-
site : and turpis est pan', qiue non coiigruit 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 con-
sequent i.

And whereas they say that usage is nothing against
an act of parliament, it seems they do voluntarily mis-
take, 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 doubt-
ful, and evermore contemporanca intcrprctalio, whether
it be of statute or Scripture, or author whatsoever, is of
greatest credit : for to come now, above sixty years
after, by subtility of wit to expound a statute other-
wise than the ages immediately succeeding did con-
ceive it, is c.rposilio contentiosa y and not natu-
Talis. 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



27O The Jurisdiction of the Marches.

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 parlia-
ment 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.

And therefore if it be well weighed, that certificate
makes against them ; for as except io firmat It gem in
casibus non exceptis, so the excepting of that shire by
itself doth fortify, that the rest of the shires were in-
cluded in the very point of difference.

After this he shewed a statute in 18 Eliz. by which
provision is made for the repair of a bridge called



The Jurisdiction of the Marches. 27 1

Chepstow-bridge between Monmouth and Glocesler,
and the charge lay in part upon Giocesterbhire ; in
which statute there is a clause, that \( 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 hfe 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 II. VIII. and busied them- *
selves in effect altogether about the force and use of
the word marches : but now finding that Utter a mortua
non prodest, they offer at the true state of the question,
which is the intent : I am determined therefore to re-
ply to them in their own order, ut man if es turn sit, as
he saith, me nihil ant subterfiigere volitisse relicendo,
aut obscnrarc dicendo.

All which hath been spoken on their part consisteth
upon three proofs.

The first was by certain inferences to prove the in-
tent 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 prac-
tice 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 ;



272 The Jurisdiction of th: Marches.

in which ordinances there is the very clause, where-
upon 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'^ left out, whereby they collect that
it came into the statute of 31, 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 ge-
neral word, as it were noctantcr, 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 remembred 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 augmentations,
the court of wards, the court of survey ; in all which
there are clauses of attendance 5 whereupon they in-
ferred that evermore, where a statute gives a court
jurisdiction, it strengtheneth it with a clause of attend-
ance ; and therefore no such clause being in this statute,
it is like there was no jurisdiction meant. Nay, far-
ther they noted, that in this very statute tor 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 cut for us evidence



The Jurisdiction of the Marches. - ~ "

and proofs, which we have no time to search ; for cer-
tainly nothing can make more for us than these ordi-
nances, 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 f-4 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 concern-
eth the jurisdiction of the president and council, it is
inserted. And this our argument is notably fortified
by that they now shew of the ordinances, where in



Online LibraryFrancis BaconThe works of Francis Bacon, baron of Verulam, viscount St. Alban, and lord high chancellor of England (Volume 4) → online text (page 23 of 46)