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flumine, with the good will of the state ; and this is sought to be evicted adverso flumine, cross the state ; and as they have the 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 cooperate 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 Glocester, &c. is named in the instructions of 1 Mar. and no man, I am sure, will think that Glocester town should be in, and Glocestershire out.
For the conceit, that they had it but jurisdictionem precariam, the precedents show 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 show 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 overrule law.
But of the other side I could show you many cases where statutes have been expounded directly against their express letter to uphold precedents and usage, as 2, 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
"I have added the article, which the MS, omits.
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 counsel 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 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, viz. that they shall hear and determine, &c. within any of the places or counties within any of their commissions; and we have one of the commissions, wherein they are named; so as upon the matter they are named. And of this form are the ancient instructions before the statute, 17 II. 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 Glocester, the liberties of the duchy of Lancaster, &c. 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 along 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.
1 So in MS.