we have said, whereunto they have offered no manner of answer. For unto all our proofs which we made touching the intent of the statute, which they grant to be the spirit and life of this question, they said nothing: as not a word to this, That otherwise the word marches in the statute should be idle or superfluous: not a word to this, That the statute doth always omit the word marches in things that concern only Wales: not a word to this, That the statute did not mean to innovate, but to ratify, and therefore if the shires were in before, they are in still not a word to the reason of the commixed government, as, That it was neccessary for the reclaiming of Wales to have them conjoined with the shires; That it was necessary for commerce and contracts, and properly for the ease of the subject of Wales against the inhabitants of the shires; That it was not probabie that the parliament meant the Prince should have no jurisdiction civil in that place, where he kept his house. To all these things, which we esteem the weightiest, there is altum silentium, after the manner of children that skip over where they cannot spell.

Now to pass from the intent to the word. First I will examine the proofs they have brought that the word was used in their sense after the statutes 27 and 34: then I will consider what is gained, if they should prove so much: and lastly I will briefly state our own proofs touching the use of the word.

For the first it hath been said, that whereas I called the use of the word marches, after the statute of 27, but a little chime at most of an old word, which soon after vanished, they will now ring us a peal of statutes to prove it. But if it be a peal, I am sure it is a peal of bells, and not a peal of shot: for it clatters, but it doth not strike: for of all the catalogue of statutes I find scarcely one save those that were answered in my former argument, but we may with as good reason affirm in every of them the word marches to be meant of the counties marches, as they can of the lordships marchers. For to begin upwards.

The statute 39 Eliz., for the repair of Wilton Bridge, no doubt doth mean the word marches for the counties; for the bridge itself is in Herefordshire, and the statute imposeth the charge of reparation upon Herefordshire by compulsory means, and permitteth benevolence to be taken in Wales, and the marches. Who doubts but this meant of the other three shires,

2 & 3 Ed. 6. cap. 13. sec.16.

which have far greater use of the bridge than the remote counties of Wales.

For the statute 5 Eliz. concerning perjury, it hath a proviso, that it shall not be prejudicial to the council of the marches for punishing of perjury. Who can doubt but that here marches is meant of the shires, considering the perjuries committed in them have been punished in that court as well as in Wales?

For 2 E. VI. and the clause therein for restraining tithes of marriage portions in Wales and the marches, why should it not be meant of counties? For if any such customs had crept and encroached into the body of the shires out of the lordships marchers, no doubt the statute meant to restrain them as well there as in the other places.

And so for the statute of 32 H. VIII. c. 37. which ordains that the benefit of that statute for distress to be had by execu tors should not extend to any lordship in Wales, or the marches of the same where [mises]1 are paid, because that imports a general release; what absurdity is there, if there the marches be meant for the whole shires? For if any such custom had spread so far the reason of the statute is alike.

As for the statutes of 37 H.. VIII. and 4 E. IV. for the making and appointing of the custos rotulorum, there the word marches must needs be taken for limits, according to the etymology and derivation; for the words refer not to Wales, but are thus: within England and Wales, and other the King's dominions, marches, and territories, that is, limits and territories; so as I see no reason but I may truly maintain my former assertion, that after the lordships marchers were extinct by the statute of 27, the name also of marches was discontinued, and rarely if ever used in that sense.

But if it should be granted that it was now and then used in that sense, it helps them little; for 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

So in later editions. There is a blank in the MS. Generally, Bacon's corrections become fewer, and small errors are oftener left untouched, towards the end of the MS.

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 Gaudy, 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 sometimes the marches take their name of the inward country, and sometimes of the out country; so that it is but inclusivè 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 E. 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

"Deck" in MS.: corrected in the later editions, I know not whether on any authority.

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 Wallie, and the contents are possessions only of Hereford and Gloucestershire (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 Harbert in 15 E. IV. where Kilpeck is laid to be in com. Hereford in marchiis Walliæ; and lastly we show again the statute of 25 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 Lancaster, &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 Lancaster, 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 endorsement of accounts, or to give a court cognizance 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 the counsel, but from the judges themselves, as an extenuation, or at least an obscuring of the proof of the usage and practice, in that we show 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 supplication 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 say, that so was Flintshire too, it matcheth not; because Flintshire is named in the statute for one of the twelve shires of Wales.

We showed 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 Iwill add this only, that Cheshire went out secundo