PREFACE.

THESE arguments were delivered in the course of a contest of some historical interest, which was carried on, in the Courts, in Parliament, and out of doors, through the greater part of James's reign, and indeed earlier. The dispute, in its legal aspect, is closely connected with large constitutional questions, which then occupied the minds of men; and the discontent which sustained it may, perhaps, be deemed as much a symptom of the general ferment which was everywhere souring the relations of the Court and country, as directly ascribable to substantial grievances inflicted by the Council on those subject to its jurisdiction: nevertheless the matter has a separable history of its own, a summary of which may not be out of place as an introduction to these arguments.'

The Court of "the President and Council in the Dominion and Principality of Wales and the Marches of the same,” originating in earlier and more disturbed times, was confirmed by Parliament 34 35 Hen. VIII. c. 26., one of a series of statutes for regulating that province, and giving large legislative powers to the King for that purpose. It was armed with discretionary power over such matters as should be assigned to it by the King, "as theretofore had been accustomed and used."

The more noted Council of York had been erected some years earlier without either statute or custom to support it; as had also a third Provincial Council for the Western Parts, which, however, was soon dropt, owing, as Coke tells us2, to strong local opposition. All three Councils are recognised as a meritorious cause of expense to the King in the Subsidy Act

A large mass of materials are collected in a volume of the Cotton MSS. Vitellius C. i. devoted to this s bject and referred to by Mr. Hallam. See also Cott. MSS. Titus B. viii. Many of the same documents, and a great number of others are in the State Paper Office. Mr. Spedding had copied some of the most important, and made extracts from others, before began my task: the publication of the Calendar has made it easy for me to glean some further information.

2 4th Inst. 246.

of 32 Hen. VIII. c. 50.', before the Welsh Act was passed, the point specially singled out for praise being the cheap and speedy justice administered in them to rich and poor. The enactment in 34 Hen. VIII. was therefore not occasioned by any doubt or hesitation of the King about erecting such Courts generally by his own authority, but probably by the necessity for distinctly mentioning what old Institutions were still to stand, amidst so much innovation taking place in Wales: and the question remains quite open, whether the four English Shires with which these arguments are concerned, or Chester and Bristol which had at first been subject to the Council, were in fact at the time conceived to be comprised in the words of the statute.

The sturdiest constitutionalists have admitted the benefits which in certain stages of English society were obtained from such a tribunal as the Star Chamber, curbing local combination, oppression, and corruption: an equitable temperament of the Common Law, as administered by our lawyers, could hardly be dispensed with: the economy of time and costs which may be secured by means of local Courts is now a trite subject: and I know no reason why Henry and his ministers should not be supposed to have meant honestly when these Provincial Courts were established. Nevertheless, without dwelling on the validity of the motives which caused the constant Parliamentary opposition to their great Metropolitan exemplars, it is not difficult to picture to ourselves the abuses of every sort that might gather head in such Courts, when acting at a distance from central opinion and control, under the presidency of noblemen chosen by Court favour and not generally trained in legal habits; exercising a censorial as well as a strictly criminal jurisdiction; unfettered by definite rules of proceeding; and conducting inquiries by examination of the supposed offender, aided in cases of treason and felony by torture in the discretion of the Court; in civil questions staying, setting

This Act, which is not inrolled in Chancery, seems to have escaped notice while the controversy was going on in James's reign; and, strangely enough, Coke, who was aware of it, at all events, when writing the 4th Institutes, cites it only as recognising the existence of the Councils of York and the West.

2 The tenor of the instructions to the Welsh Council, when the Princess Mary was sent down to the Principality, before the Act of Parliament Cott. MSS. Vit. (Č. i.), and the authority to the Northern Council, as stated by Coke (4 Inst. 245), lead fairly to the inference that the discretionary powers, criminal and civil, were at first intended to supplement, not to supersede the Common Law procedure.

This power is openly and without circumlocution given in a series of instructions,

aside, and inverting, within ill-defined limits, the proceedings and principles of the ordinary Courts; and partly dependent. for its support on the fines which it imposed for contempt and offences, and on fees ascertained by a custom of which the lower officials were the ordinary interpreters.

1

Orders for reformation of the Court, which were issued by Lord Burleigh in 1579, and instructions to the President, Lord Pembroke, in 1586, are official recognitions of the existence of maladministration such as might have been surmised: delays, excessive costs, encroachment on the Common Law, extortion by means of fining, and an exercise of the inquisitorial powers of the Court, which even in those days was thought vexatious. It seems reasonable to assume that these abuses were, in part at least, the cause of the efforts which during the first half of Elizabeth's reign were made to have the territorial jurisdiction of the Council restricted; though we must no doubt also take account of the natural resentment of the English at being coupled with the Welshmen, and of disputes of privilege with the Common Law Judges and other local Courts. Chester, so far as appears, was exempted on occasion of a conflict of jurisdiction with the Palatine Courts; but Bristol obtained exemption as a favour to the inhabitants, and Worcester and the other Shires attempted and failed, both by legal proceedings and also by petition, to do the same. In a short Memoir, apparently the one on which the Queen acted in refusing this request, the question is argued very temperately, and entirely on the ground of expediency: the conclusion is that the Court should be reformed, but not restricted.

After the reformation of the Council, we hear no more of it until Lord Zouch became president. He was first sent down at the close of Elizabeth's reign, and his Commission was renewed on James's accession. In October, 1602, we casually learn3 that "he begins to know and use his authority;" that he was slighting the Chief Justice of Chester, the permanent including two consecutive ones, the last in 1602, revised by Coke as AttorneyGeneral. Those of 1607 do not appear from the abstract of them to have contained, and those of 1617 certainly omitted this clause; but perhaps the thing may have been understood by the phrase, "all other good ways and means in their discretion as heretofore has been used by the Council." Rym. Foed. Nov. 12th, 1617.

'Cott. MSS. Titus, B viii.

2 Cott. MSS. Vit. C. i. undated.

3 Harl. MSS. 5253. He is said to have thrown down the cushion laid, according to usage, for the Chief Justice of Chester beside his own, saying, "one was enough for that place."

legal member of the Council; and that "his jurisdiction is already brought in question in the Common Pleas, and the Chief Justice of that Bench"-who would be Anderson"thinks that Gloucestershire, Herefordshire, &c. are not within his Circuit." 1

The commencement of the dispute we are here concerned with was Fairley's Case in the King's Bench, reported shortly, and it seems imperfectly, by Croke, Trin. T. 2 Jac. (1604). Fairley occupied land which he claimed to hold under a lease from a deceased copyholder; the widow claimed to re-enter and avoid the lease, and she obtained an order from the Council that Fairley should "suffer her to have possession till the Court of the Manor had tried the right." Fairley was imprisoned for disobedience to this order, and thereupon sued out a writ of Habeas Corpus cum causâ, from the King's Bench. This writ was disobeyed by the Council" for that none of that nature had ever taken place."2 In the paper from which I take this account it is said it was ultimately not denied by the Common Law Judges that this order "was just." For aught that appears the widow may have been in the right; but I doubt whether the Judges can have said that an order disturbing the possession until the right should be tried was a proper one to make; though they may well have admitted the King's Bench could not meddle with it on the merits, if the cause was within the jurisdiction of the Council.

The character of the King would, I suppose, have been a sufficient impediment, under any circumstances, to have prevented the question of jurisdiction from being brought in a course of legal decision up to the House of Lords3, though

I do not know of any Report of proceedings in the Common Pleas at this time, but a quarrel was on foot between the two Courts as early as 1592. 1 Anderson's Rep. 279.

There was a precedent for one issuing in Lord Pembroke's time, but it is said it was not returned. S. P. O. Domestic, James I. vol. x. 86. In this account of Fairley's case I have followed the authority of a memoir in the State Paper Office, which stands next before the last cited paper. It is entitled "A view of the Differences in question betwixt the King's Bench and the Council in the Marches;" and I take it to be addressed to the Privy Council, or to Cecil, on behalf of the Welsh Council, after the discussion had proceeded some way. I concur with Mr. Spedding in thinking that it bears evident marks of having been of Bacon's drawing or settling.

3 It may be thought that such a course would scarcely have occurred to any one in those days. But if I do not misapprehend the application of a remaik made by Coke at the Council Board on June 15th 1608 Lansd. MSS. 160.) in a discussion on the question of Prohibitions against these Provincial Courts, that "the Lords of the Upper House may determine against the Judgment of the King's Bench or Common Pleas," he contemplated or suggested such a solution: and at an earlier stage, (not later, I think, than 1606,) a memorial on behalf of the Welsh Council vehemently