The first part of the Prooffe, viz. By Statutes.
FRom the preamble of the statute of 34. Hen. 8. (by colour whereof the said countyes are involved) may be collected, the intent of the law, which as Sir Ed. Cooke saith, is a key to open the understanding of it. The words are these, The King of his tender zeale and affection that he beareth towards his obedient subiects of his dominion and country of Wales, &c.
Here is no provision made for English men, Also the clause of attendance sheweth plainlie the meaning of the statut, whereby only the sheriffes and officers of Wales are to give assistance, and attendance, and not those of the foure counties: Therefore not intended to be subiect to that Iurisdiction.
Likewise the statute saith, That the President, and councell, Attorney, and sollicitor there, shall bee Justices of peace in all the dominion of Wales. If the foure counties had been intended, noe doubt they had been accommodated with a commission of peace (as they are not, nor never were.)
Are these words: In the Marches of Wales, or in any other place, where the K. writ doth not run, The enquiry is, 3. Ed. 1. cap. 17. where are the Marches of Wales; the statute answers, where the Kings writ doth not run, but it is and ever was currant in those foure counties. Ergo &c.
No Welchman may purchase lands in the townes of Salop, 2. Hen. 4. cap 32. Hereford, Glou. &c. nor in any other marchant towne, adjoyning to the marches of Wales.
Ergo not marches, for nothing can adjoyne to it selfe. [Page 4]It is said, 20. Hen. 6. cap. 3. that the counties of Gloucester, Hereford, and Salop, be adjoyning to the marches of Wales.
And againe, Bringing goods out of the said counties into Wales, and the marches of the same. Hence apparant, That those counties were not marches, for then they should goe out of marches into marches, which were absurd.
Divers dwelling in Wales, 13. Hen. 6. cap. 5. and the marches of Wales come into Hereford, where Hereford is distinguished, and excluded from being marches of Wales.
27. Hen. 8. cap. 26. Divers Lordships, Marches lying betweene the shires of England, and the shires of the Country, and Dominion of Wales; Is not here a plain description, where to find the marches, viz. within the dominion of Wales, and betweene the shires of England, and Wales?
It appeares there, 32. Hen. 8. cap. 37. that the inhabitants of the Lordships, marches did use at their first entry, to pay to the Lord of the manner, a sum of money for redemption. And 2. and 3. Ed. 6. cap. 13. There was a custome in Wales, to pay tythes of goods given in mariage, but neither the one nor the other ever came, nor were ever used in the foure counties. Ergo &c. Cum multis aliis.
Law Bookes.
Rex Escaetori suo in Com. Salop. & March. salutem. Register. 315.23. B. If Salop were included in the words Marches, it would not have beene distinguished to cumber a court, which is called Breve for brevity sake.
Another writ, Regist. 318 B. 21.6. Hen. 4.10 M. 19. H. [...] Rex Escaetori suo in Com. Glou. & March. eidem Com. adiacen.
A Scire facias upon a fine of land in the march▪ directed to the Sheriffe of Shropshire, who returned the land was in the March, and therefore he could not execute the writ.
When the manner of Burgane in the Marches is in demand, [Page 5]the writ shall be directed to the Sheriffe of Hereford. 21. Ed. 4.3. Fitz H. Nat. B. 259
An issue joyned in the marches of Wales shall be tryed in the county adjoyning, Where the Kings writ runneth.
Rex Escaetori suo in Com. Salop & March. eidem adjacer. if adjoyning, not March.
Records.
In the Parliament Roll, of 16. Ric. 2. Numer. 34. Is an expresse declaration of the house of commons, that those 4. shires are not within the Marches of Wales.
The Parliament Roll of 27. Hen. 6. Membrana 10. sheweth That those 4. counties have been adjoynant to the Mar. of Wales, but not within the said Marches, wherein is recited the like petition in the 20. yeare of the said King, exhibited by the said commons.
The Parliament Roll of 33. Hen. 6. Mem. 3. sheweth, that the said counties of Gloucester, Worcester, Hereford, and Bristow are not within the Marches of Wales.
A commission of Oyer, and terminer, to Iasper Duke of Bedford, running in these words, tam infra Com. Salop, Primo H. 7 Hereford, Glou. Wigorn. & March. Walliae iisdem Com. adjacen. quam infra Walli. &c.
The like 8. Hen. 7.
The like to Prince Arthur 17. Hen. 7. in iisdem Verbis.
Objections.
Object. 1 That the words Marches of Wales, were idle in the statute of 34. Hen. 8. of not draw in the 4. counties.
Answer 1 By the words Wales and the Marches thereof may bee meant Wales, and the limits thereof.
Secondly, the words dominion, and principalitie had not included those counties, newly erected out of the Lordships [Page 6]Marches without the addition of the words Marches.
Objecti∣on. 2 The resiancy of the President and councell hath for the most part, beene in the English counties, and improbable a court should sit where it hath no Jurisdiction.
Answer. The consequence is weak, for by usage or speciall commission, Courts may sit out of the bounds of their Jurisdiction, (as the Queenes Court doth) the Dutchy of Lancaster, Justice in Eyre &c. Besides they sate there for safety, before Wales was reduced to civill government, and since for conveniency of the Princes house, and other like accommodations, and withall they had a commission of Oyer and terminer to inable them.
Objecti∣on. 3 Their long usage and exercise of power over these foure counties.
Answer 1 A subsequent usage cannot inlarge the sence of a word in an act of Parliament, further then the use and custome was, at or before the act.
Answer 2 The Citie of Bristow was within their Jurisdiction, untill 7. Eliza. And the Citie, and countie of Chester, untill 11. of her raigne, and those foure counties untill 17. Car.
Answer 3 It hath beene but Pulsus interruptus, an interrupted sickly power, and pursued even with hew and cry, by the 4. counties.
Answer 4 All judiciall records, Patents, commissions & instructions (even of their owne) since that act have divided the Marches from the 4. counties, which run still in Wallia, & Com. Gloucestr. Hereford. &c. & March. Walliae iisdem Com. adjacen.
Answer 5 The solemne resolution of all the Judges, 2. Iac. reported by Sir Edward Cooke, in the second part of his institutes, and produced before a committee in this present parliament.
Answer 6 The frequent prohibitions granted to the inhabitants of these foure counties, upon this only suggestion. [Page 7] Quia comitatus Anglicanus. And granted to the inhabitants of the very towne of Ludlow, the chiefe place of their residence, and where their honour dwelleth.
Answer 7 The vote and declaration of the house of commons, 18. Iac. whereby they declared their Iurisdiction over the said counties to be illegall.
Answer 8 The generall and constant complaint in all ages of the inhabitants of those counties, against the exercise of that Jurisdiction over them, & presented by severall grand Juries both at assizes, and quarter Sessions, for a grievance, tending to the losse of their inheritance & birthright, and turning the certaine rule of law into the uncertaine rule of discretion.
Here follow the Grievances.
1 FIrst which might suffice for all the rest, the multiplicity of suits commenced in that Court, as appeareth upon search lately made by warrant for a Committee in this present Parliament, whereby there is found, that since the first day of January last, untill the first day of May 1641, there have beene sued out 7524 severall Processe, 1.2, 3, 4 and 5 def. in each of them, and most of them for small and triviall (I might say) triobular things.
2 This makes the report good, that diver [...] beggerly tradesmen get more by that Court, then by selling their wares, for they put 4 and 5 def. in one processe, which costs but 2 shillings 6 pence, which they make every def. pay severally, and if he stand out, the Court alloweth a Noble for each Processe, and the serving of it, and this gives incouragement to plaintifs, and such a Mill can never want griste.
3 A man may sue for five shillings, and recover it, only for forme sake the Attourney will direct him to demand above forty shillings, because the instructions runne so.
4 Many covetous and deceiptfull persons usually sue Processe out of the said Court for small pretended debts, without cause, or colour, and the parties served, to avoid travell and expence (although they never owed the debt, or contructed with the plaintif) pay what is demanded, rather then they will travell in person or send for a dedimus to answer the same (many of the inhabitants dwelling above 50 miles from the said Court, and the wayes extream deepe in the winter season) and upon each dedimus potestatem, the def. (besides the charge of it and his owne expences) must pay the plaintife a Noble costs, so of two evils he chooseth the least.
[Page 9] 5 There were in one morning three severall causes heard in that Court about the killing of one poore Hare by a company of Ploughmen.
6 The penall statutes (though made interrorē) yet these put in execution to the heighth, some time against the intention of the law, as a Gentleman to be fined and imprisoned for shooting in his owne ground, at his owne poultry, to try his peece: and since such offences by act of Parliament have beene limited to the proper County, yet there they have bin punished as misdemeanours, wherein they take upon them to be wiser then the Parliament, because they usually vary from the penalty there imposed.
7 If a master strike his servant (by way of correction) or a farmer a beggar for stealing his corne out of the cock, or sheffe in harvest time, they shall be there questioned, and oftentimes fined, and imprisoned.
8 They try trespasses and other actions, which are locall, and confined to the proper County, and ought to be done by a Jury of 12 men upon oath.
9 Suits in Cities and Corporation Courts (not exceeding 5 pound) are usually removed thither, contrary to the statute of 21 Jac. upon pretence that the said Court is not named (which indeed is true) yet lively described, for the words are, Any Court that hath power or pretendeth to have power, to stay, or remove causes, &c. Now every one knoweth, that the Marches of Wales, have no power (within the 4 Counties) to stay, or remove causes: only they pretend to have power, and so is the very Court intended by the statute, (albeit they will take no notice of it.)
10 Justices of peace, Majors, and Bayliffes of Cities, and Corporate townes, Constables, and other Officers, are often there convented, for executing of their offices against malefactors, and if they erre never so little in formality of justice (although their intention was good and the present [Page 10]necessity of preserving the peace required speedy justice) are often there punished, and if they are dismissed (which is rara avis in terris) yet their journeys are chargeable, and they discouraged to execute their place, and office.
11 Although the statute giveth authority to Justices of the peace to allow and suppresse Alehouses (as they shall think sit) yet the said Court hath intermedled with the same, and limited the number of Alehouses in divers townes, and Villages (even where Justices of peace do dwell.)
12 If a suit be there commenced for trespasse, battery, or the like, and depending the suit, the parties agree, yet for a fine, processe issueth forth against the plaintife for not prosecuting, which is not so in any other Court.
13 If a sentence be there given for payment of money, or the like, if the def. performe not punctually, a new bill is preferred for breach of the order, and the def. fined to the King for the said breach (although it be in a civill plea.)
14 If a Sheriffe have a prisoner in execution for debt, yet by a processe from the said Court in the nature of a Habeas Corpus, or duces tecum. the Sheriffe is commanded to bring the prisoner to the said Court, which if he disobey, they will fine him, and if he performe it, then at the next festivall time, they will inlarge him, or take insufficient bayle, in which case the Sheriffe hath bin inforced to pay the debt.
15 If a Sheriffe, or Bayliffe execute any processe from that Court, for the King, or subject, and the def. bringeth an action of false imprisonment, he cannot pleade not guilty, and give the processe in evidence, but must be inforced to pleade the statute at large, together with their instructions, which never yet could be drawne by the best Clarks, and besides, it will cost above 10 pound.
[Page 11] 16 Double vexation and punishment hath usually beene inflicted by the authority of the said Court. As those that have in the Bishop; Consistory beene punished for incontinency, have afterwards beene punished there for the same offence, and the former punishment not allowed for a plea. Besides punishment hath beene there inflicted by whipping (too severe for a freeborne subject.)
17 The inhabitants of those parts are subject to a double jurisdiction, and oftentimes served to appeare both at London and Ludlow, in one, and the same day.
18 Administrators, and Tutors of minors (who according to the Ecclesiasticall law) have put in good security to the Bishop or his Chancellor, have beene drawne thether, and inforced to put in other security, and make yearely accompt there, to their great travell and charge.
19 Although their instructions extend but to 50 pound, yet they having power to heare all matters of equity, by reason or colour thereof, they, doe Judge and determine matters of any summe, or value whatsoever, not only for goods, but for land.
20 They usually alter and stall possessions and oftentimes upon oathes of prosecutors, wherby men loose their right and inheritance, at least with much charge and difficulty regaine the same.
21 Sequestrations are usually granted, both for lands and goods, for not performing of some decree collaterall for debt, or other things, which is not so practised either at common law, or in Chancery. Besides they sequester copy hold lands, which is not liable to a judgement at law, or any other processe whatsoever, being no estate in the eye of the law, but only ad voluntatem domini.
22 Suits are brought there for titles, and other matters of weight, and many witnesses examined in perpetuam rei memoriam, and otherwise, yet all cast away, though under [Page 12]their seal exemplyfied, for being no Court of Record, they are rejected, and not permitted by the Iudges, to be read at affizes &c.
23 Many suits are there commenced for causes not within their instructions, whereof they will take no notice, but suffer the plaintife, and defendant, to spend much money to bring it to hearing, and then, some they will dismisse, some others they will heare, and sentence, because they are in no danger, only the party grieved may sue forth a prohibition out of the superior Courts at Westminster.
24 The Sheriffes, to their great charge, and travaile, execute many processe, issuing out of that Court, yet others there are authorised to receive the Fees incident for the same, and doe receive it accordingly.
25 Hence it comes to passe that Proclamation, & some other proces directed to the Sheriffes, never comes to their hands, but are returned there, and the Fees taken to the great prejudice of the def. who hath not that notice of the suit which the law intendeth him.
26 They award binding processe against many poore and needy persons, authorising commissioners of small respect to apprehend them, and if they cannot find sufficient securitie (as seldome they are able to doe) to carry them to the next Goale, and so oftentimes they bring them into Corporations, where either they breake Goale, being constrained thereunto by hunger (which will breake stone Walls) and then that Goaler must pay the debt: Or else, if they escape not, they are maintained at the charge of that place, and if a Goaler refuse to take into his custody, any such beggerly fellow, they will fine him.
27 If a Gentleman dwell above a 100 miles out of the jurisdiction of that Court, yet hath some land there lying, and happily may come to receive his rent, or see his land, &c. And then, if some troublesome tenant or other, doe [Page 7]serve him with processe out of that Court, that shall conclude him, and he enjoyned to attend that Court, and to performe the decree, and sentence thereof.
28 If a man be sued in that Court for entry with force, and takes away goods, the plaintife shall recover damages, and the def. be fined to the King, and yet if the plaintife will sue at law for the same thing (as sometimes they do) the def. cannot pleade the former recovery in barre, but is inforced to make a second composition.
29 Many lewd and dissolute fellowes live by serving the processe of that Court and making Affidavit thereof: and though they can neither write nor reade, yet will sweare the serving of 40 or fifty processe at one time, wherein they cannot but oftentimes forsweare themselves, and much prejudice the def.
30 Informers upon penall statuts, adventure to sue there, having no proofe at all, but relying upon the des: examination upon a multitude of Interr. whereby he shall accuse himselfe, against the liberty of the subject, and then (right or wrong) he must give bond with two sureties of 40 pound to abide the hearing: to avoid which trouble and charge the Informer obtaines his ends, viz. a composition.
31 The charge of the countrey is not small, when that Court removes from one place to another with all their incidents and accommodations, (as if the King were going a progresse.)
32 His Majestie, and divers of his officers are great loosers upon fineable writs above 40 pound which are swallowed up by this Court.
33 The authority of this Court is augmented, or diminished as it shall please the King to give instructions, whereby apparant, that it is meerly arbitrary: and once in the time of Queene Eliza.) The Court had power by their [Page 14]instructions (at least did practise power) to enjoyne proceedings at the common law, which although it is not now used against suits at Westminster, yet the inhabitants are still in danger to be subject to the like, by the alterations of the instructions.
34 If the King and wisdome of this present Parliament would not intrust them, nor the like arbitrary Court, with criminall, why then with civill causes?
35 The wages and maintenance of the Judges, and officers there, ariseth out of the mulcts, fines, and punishments of the subjects, which is a very great inconvenience, being well considered, for by reason thereof, fines are, or may be imposed, super quantitatem seu qualitatem delicti.
36 And although the Lord President and Justices now there are honourable, worthy, and just men (as ever were) yet it is doubtfull, whether succeeding times may not place such governours, Justices, and Officers there; which may be more grievous to the people, and whether instructions being altered, or inlarged, the inhabitants may not be in greater subjection: and who would live in feare of alteration of Government.