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, for 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 controverso.

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 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 vox 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;

and to imagine that a court should not have jurisdiction 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 serjeant Harris, in answer of the former argument, and for the excluding of the jurisdiction of the marches in the four shires.

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

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 was some collections they made upon the statute of 34; whereby they inferred, that that statute intended that word in that signification.

For the first, they did allege 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 contrary; for they were never called marches of Scotland, but the marches of England: whereas the statute of 34 doth not speak of the marches of England, but of the marches of Wales.

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; first, some words in the statute of 32 H. 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 statute, whereupon we dispute, where the word marches is used for the lordships marchers.

The third proof was the stile and form of the commission of oyer and terminer even to this day, which run to give power and authority to the president and council there, infra principalitat. Walliæ, and infra the four counties by name, with this clause farther, et marchias Walliæ eisdem comitatibus adjacent:" whereby they infer two things strongly, 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 terminer, by force whereof many had been proceeded with both for life, and otherways, should be called in question, as coram non judice, 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 for the tender zeal and affection 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.