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.

1 66 Continual Assistant." See S. P. O. vol. xxxi. 31.; from which it appears that he resigned this office in or before 1607.

2 Harl. MSS. 6797.

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

2

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

1 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 governing the English shires.

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

been coram non judice: that if this were so, it would go hard with the Council at York, founded by mere prerogative; and other Courts might follow. The real advantages of local and summary tribunals were not overlooked: the inconvenience of severing the resort of the inhabitants of the two sides of the Borders to the same Civil Courts was especially urged; the turbulent and Popish' inclination of the gentry of those parts was touched upon; and the agitation was attributed sometimes to their preference of trial by juries whom they could influence or intimidate, and to the clannish following by the common people of the gentry's lead,-sometimes to the increasing number of attorneys hungry for costs 2: and the usual cry was raised, that any change would lead to a revolution.

Some of these considerations might, I think, not unreasonably have produced in a cautious servant of the Crown, at any time, such a feeling of hesitation as is indicated by some marginal annotations by Cecil, on one of the numerous memoirs still extant 3, which he sums up in the words, antiquæ substructiones nec facile destruuntur, nec sola ruunt. But both these and other topics were, of course, dwelt on in the language and with the feelings of the times. The independence and sanctity of the royal prerogative (at least "of this kind,"") were enlarged upon; as was the personal disgrace that would ensue to the King for yielding that which the Tudors had upheld: and the danger of giving a triumph to the already exorbitant and encroaching course of the Common Law Courts was enhanced by a reference to the then recent action of the Parliament of Paris.5

While all this was going on in Council, Parliament met; and in March, 1605 6, a bill passed the House of Commons "for explanation of the 34 and 35 Hen. VIII.," declaring the English shires to be exempt. This failed, I suppose, in the

1 Sir H. Croft, the principal advocate for the shires, turned Papist in 1607, in the thick of the contest: Burke's Peerage and Baronetage. I presume this authority is conclusive on such a matter, but I have come across no contemporary allusion to the

fact.

It may be mentioned as a stray statistical fact that there were reckoned to be about fifty attorneys in each of three of the counties, and a number I could not decipher in the fourth.

3 S P. O. vol. xxxi. 35, 36. Probably early in 1608, as the Calendar places it. 4 This qualitying phrase occurs in the Memoir first cited in this preface, and

reminds one of a similar one in the Maxims of the Law. Reg. 19.

5 In the same Memoir. So late as in July, 1608. Bacon seems to have in private inclined to the opinion, that in the general struggle then going on the encroachments had been more on the part of the Local Courts.-- Commentarius Solutus.

Lords; and another bill was passing through the Commons in the following May, with the same title, when the King gave audience to some members, and made a gracious speech. The next day, on the motion of Sir Herbert Croft, the member for Herefordshire and principal promoter of the cause of the shires, the House resolved "to rest upon His Majesty's grace for the execution of the law;" and the bill was dropt.

We have no record of the terms of the King's promise on this occasion, nor can we exactly fix the order of the steps which were taken for fulfilling or breaking it. Bacon became Solicitor General in July, 1607. Seeing how, from first to last, he was employed in this affair, and the reputation he had of one that had "laboured much against the shires," there can be little doubt that he was consulted at this stage, but we are quite uncertain to what extent the influence of his advice may have prevailed. There is extant in the State Paper Office the draft of a proclamation, which Mr. Spedding informs me is in the handwriting of a person usually employed by Bacon and corrected by himself, which I should be inclined to assign to near this date. It was intended to accompany some “reformed” instructions for both the Welsh and the Northern Councils, "reduced to those limits and restrictions" which were thought fit, and to be obeyed "within the precincts of the jurisdiction of the Council as they should be set down by the said instructions." There is no further indication of what those instructions were; but the policy of this proclamation differs in one very material point from that actually pursued, inasmuch as it contemplated that the instructions, so far as they "concerned ordinary justice,” should be recorded for public inspection. In other respects, its general purport was to insist on the King's resolve, neither to extend nor withdraw the prerogative of the Crown as exercised by his predecessors on any pretence of legal objections, or except "by the advice of the three Estates in Parliament," to whom the King would "always be ready to give a gracious hearing and respect." While thus distinctly basing both Councils on the ground of prerogative fortified by ancient usage, we must suppose it was intended to introduce such modifications and reforms in practice as might conciliate and extinguish the existing opposition.

There is in the S. P. O. vol. x. 88. a short paper written in a very moderate spirit, undated, which I incline to connect with this draft Proclamation, and to con

No such Proclamation appears to have issued; but in August, 1607, Lord Eure was appointed President, with Instructions of which we have only an abstract.' It appears by the Memorandum in the State Paper Office, already referred to, that Coke was one of the Board of Council who attended their drawing up; but we do not know what part he took further than procuring an increase to the salary of the Chief Justice of Chester.

In these Instructions the extraordinary criminal powers of the Council were confined to Wales, and a mere Commission of Oyer and Terminer, and directions to keep four general terms in the year, were given for the four shires. Then, with a recital that a question had been made by divers inhabitants whether the four Counties and their Cities were part of the Marches," in respect of long practice used by the President and Council there, and for ease of the poorer sort in these remote places, not fit to be compelled to come to Westminster for petty causes," power was given to hear and determine all matters of debt and trespass where the damage was laid under 107. Fines were to be levied as heretofore, but if any could not be levied in the four Counties, they were to be estreated into the Exchequer.

A less concession than this might have been satisfactory, perhaps, in a Parliamentary settlement, as the passions of the House of Commons seem never to have been engaged in the controversy. But when the proceedings in the Commons were stayed in reliance on the King's "execution of the Law," it was fully understood that the Judges had declared the Law to be with the Shires, and that any civil jurisdiction, or any powers beyond those of a Commission of Oyer and Terminer, were illegal. To submit, therefore, even to the limited 107. juris

It

sider as substantially embodying Bacon's advice to his clients and to Salisbury, insists on usage and precedents as proving that the four shires were included in the Marches: it urges that the Common Law Judges are not bound by their oath to issue Prohibitions to other Courts where there are reasons of State or of convenience against it: it insists on the utility of the Welch Council, and alleges that though the Statute allows it to judge of matters of inheritance, yet the King's instructions do not and it rather suggests than insists that, besides the Statutory power, the Crown has an inherent right and duty to see to the "Provincial and equal distribution of Courts of Justice and it ends with proposing, "for the determining of all the controversy" that the King should grant a commission for these Shires "such as he granteth for York, and as former Kings granted for Wales and the Marches before the statute was made as to which see note in p. 570.