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 Court3; 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. (C. 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.

3 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.

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. 5353. 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." 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

1 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.

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 remark 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

that tribunal was favourably constituted for upholding the Prerogative and free from the professional bias towards the Common Law, which no doubt existed in the Courts at Westminster. It was, however, by Lord Zouch's act that the dispute was first submitted to the Privy Council and made a matter of State.

It does not appear who had been engaged in Fairley's cause while yet a private one. At this stage we find Coke, Attorney General, acting on behalf of the King's Bench, and Sir John Croke, who seems to have been officially connected with the Council of the Marches', and Bacon engaged for the Council. Several conferences were held between them, and there is extant what purports to be the result of these conferences, involving an admission of the general right and duty of the King's Bench to see that courts of this kind kept within their due limits, with stringent provisions against abuse of the writ of Habeas Corpus; leaving in dispute only the question of the territorial extent of the Council's jurisdiction, and even as to this suggesting a Parliamentary confirmation or extension to them of such power as the Star Chamber exercised. But either this was a mere draft by Coke and never approved by Croke and Bacon, or these latter went further in the way of conciliation than their principals were willing to follow them3, and it was disavowed or retracted. It seems that this point of the four English shires was not present to the mind of the King's Bench when they awarded and maintained their writ; but we have seen that others had raised it long before.

Coke's account of what followed' is that in Michaelmas Term, 2 Jac. (1604), all the Justices and the barons of the Exchequer were assembled by command of the King, and after hearing counsel on divers days, and upon mature deliberation, resolved unâ voce that the said four counties were not within the juris

deprecated some plan which "it was given out" the Judges had agreed upon for empanelling a jury to try the question of the four shires; whether a declaration in prohibition, or an action for false imprisonment, or what other course was intended, does not appear, but I presume there would have been some record on which error might have been brought. S. P. O. vol. x. 88.

"Continual Assistant." See S. P. O. vol. xxxi. 31.; from which it appears that he resigned this office in or before 1607.

3 See another copy in Cott. MSS. Vit. c. 1. with marginal notes retracting or nullifying the admissions, and see also S. P. O. vol. x. 87., in which the substance of these marginal notes alone appears under a heading which corresponds with that of the Harl. MS.

44 Inst. 242.

diction of the Council, and that, inasmuch as they had a limited authority, a prohibition might be granted if they proceeded in any matter beyond it: that thereupon the King ordered the Lord President's commission to be reformed; whereupon Lord Zouch resigned; and yet the commission was not afterwards reformed in all points as it ought to have been.

But this summary, though it may be substantially accurate, at all events compresses the events too much. The judges were certainly consulted, and gave an opinion unfavourable to the jurisdiction over the English shires; and the King's Bench thereupon followed up their original judgment by process against the officer who had Fairley in custody, and (it seems) against other parties, after the intemperate fashion in which it was in those days customary to vindicate authority. Some angry letters from Lord Zouch to Cecil in 1605 countenance the statement that the Privy Council at first took part against him'; and there is good reason to believe that, from illness and disgust combined, he thenceforth ceased from the active duties of his place, and that the authority of the Welsh Council was practically in abeyance for some time within the four shires. It also appears that some new instructions were drawn up, whether issued or not, which may be those here mentioned by Coke. But Lord Zouch is spoken of as still in office in August, 1606.3

In the meantime, he and the Welsh Council were not inactive, and besides collecting precedents and enforcing legal arguments, pressed on the King and his advisers considerations of policy likely to prevail with them. It was in substance urged, that to give up the English shires because they were alleged not to be within the Act of Parliament, was to admit that the jurisdiction of the Court rested only on statute law; that the royal prerogative on which it had rested from the time of Edward IV., backed by the usage of four successive reigns after the Statute, went for nothing, and that the Crown had been usurping during all that time, and all the sentences and judgments given by the Council within those shires had

See also a letter from Sir Herbert Croft, Dec. 19th, 1614, in which he speaks of Lord Ellesmere as having been originally against Lord Zouch.

2 S. P. O. vol. xxxi. 31. It is a memorandum on the differences between these Instructions and the "present" ones, which latter are clearly those issued to Lord Eure in August, 1607. The two are represented as agreeing in the provisions for govern. ing the English shires.

3 In a letter of Carleton's of that date in S. P. O.