question: namely, one dated 13 May 1574 against Robert Wilde, who sought to exempt the county and city of Gloucester; and another dated 25th January 1584 against the Mayor of Hereford for refusing to submit to the authority of that Court. And lastly by an Act of Parliament of 18 of Elizabeth, which in confirmation of this usage appointeth the penalties incurred by the justices of Gloucestershire for not repairing Chepstow bridge to be recovered only before the Council in the Marches; before whom at this instant that suit doth depend; which was a motive why they laboured to exempt themselves, that they might retain those great sums which they have levied to this use.

But here it is objected that in the same Queen's time Cheshire was exempted from this jurisdiction, which in former time had been also carried under the same title.

Hereunto may be answered: first, that Cheshire had a peculiar reason, because it was a County Palatine, and had both Chancery and Common Law in itself. Besides that if the power of the Earl of Leicester had not swayed that cause, the reasons happily might then have been stronger to have kept in that shire, than now to put out these. And lastly that the same authority which exempted that one concluded all the rest: for exceptio firmat legem in casibus non exceptis, as the Law saith: and yet besides all this no order or judgment can be shewed by which that shire was formerly exempt, but by sufferance of time. Then to finish this point: If the statute refer to usage, and the usage be confirmed for an hundred years at the least without interruption; and if usage be so potent that it prevaileth against law, as Mr. Attorney hath shewed in the case of Checker Seals,' I may strongly conclude that these shires by good right should continue in the Marches.

And thus much for Law.

The reasons of convenience or inconvenience.

The third and last point is the reason of this change, containing the conveniences or inconveniences which follow. And if salus populi be suprema lex, then though law and usage and prerogative were all against us, yet bonum publicum should be always preferred.

I suppose in Lane's case. See Rep. pt. ii. p. 17.

The consequents then of this renting and discountenancing the government in Wales may probably be these:

1. It will be a dangerous beginning of innovation in the general government of the land. For if the King's Prerogative, the ancient and main foundation upon which this jurisdiction was built, be thus questioned and shaken, then of necessity the Council at York must fall after this; which is not denied; and the Court of Requests must follow; and happily other Courts of equity, which may seem to be blemished in the handling of this cause. And what further way may be opened to Parliament or lawyers to dispute more liberties, may rather be feared than discovered at the first.

2. It will be a blow to the established religion: for it is well known that these marcher shires are overgrown with Papists, who were suppressed only by the justice of this Court: and are since the disgrace thereof so multiplied and encouraged, that the state hath already been troubled with their disorders and routs.

3. It will dissolve the union betwixt England and Wales, by breaking of their great traffic, their mutual alliances, and their equality of right. For what Welshman will traffic with an Englishman when he must travel to London to recover his debt, and then try his action in the English shires? Or what Englishman will marry into Wales, when they are thus sequestered from us as a contemned people? And why should not both again. spoil one another when they have no common justice to keep them in fear? Or when Welsh malefactors may find impunity in the marches, and the marchers in Wales?

4. The nature of these marchers is so notoriously prone to fighting and brawling, that notwithstanding the necessary severity of this Court in the greatest strength thereof, there have been ever more riots and misdemeanours in some one of these shires than any three of Wales: and therefore the lessening of authority in what degree soever must needs increase disobedience and at length danger to the state.

5. If by the wisdom of former ages these shires were added to the government of Wales, partly to sweeten and allay the harsh differences of laws, customs, languages, and affections betwixt Welsh and English, and partly with the ready strength of these shires to bridle the rebellious humour to which Wales by nature and situation is subject; then of necessity they must

return to their old condition of borderers and highlanders, when they are again cantonised the one from the other.

6. As the establishment of this Council was also directed to suppress the insolencies and oppressions of the Marcher Lords; so the disabling thereof will again set them up, and restore the sword of violence to their hands. For all that know those parts must acknowledge that the power of the gentry is the chief fear and danger of the good subject there: and even this is the sum of all their heinous complaints against the President and Council, that for incontinency, striking, and every disorder, they are forthwith molested with process and fines.

7. If it be the blessing of God to his chosen people to have justice administered in every city, it must follow as a curse upon these poor shires, when they shall be driven from home to seek justice at London, where besides their travel, loss of time, and all charges of law, the very expense of their journey will come to more than at the Council the whole costs of their suit. And considering how the Courts at Westminster are already pestered, shall not all England suffer more for despatch, when the suits of these shires, which are half the business of the Council, are put to that heap?

8. If by law it be concluded that the Council in the Marches never had power to hear the causes of these shires, then all the orders and judgments in their cases, whereby many men hold both their goods and lands, as given sub non judice, are quite overthrown. And his Majesty of right should repay all the fines levied there since the beginning of that Court. And then what confusion and what clamour will grow amongst the people? And what new work for those troublesome Attorneys which have stirred all this mud to bring water to their mill?

Besides all these, many other inconveniences may be remembered; as the acknowledgment of wrong and usurpation in the Crown time out of mind: The condemning of the acts and instructions of so many former kings: The present disparagement and overthrow of a Council of Estate; and the depriving of all convenient places of abode: An addition of more scope and business to the potent ministers of the law: together with the scandal, trouble, and doubtful event of change; wherein all the mischiefs cannot possibly be foreseen.

And besides all this, can it be denied that by means of this

Court, established as it now is, all those countries both of Wales and the Marches have been reduced from barbarism, poverty, and disorder, and thus long been maintained in civility and peace? or can any just and important exception he taken against their present proceedings? or is there any ground of all this ado to satisfy present or after times? Why then, I demand with Cassian, cui bono do we hazard all this? specially considering that as that Council now standeth by his Majesty's instructions, whatsoever shall at any time be found inconvenient either in matter or form, may presently be redressed with one dash of a pen; whereas if it be once carried out of his royal hand he shall hardly or never recover like power: and what incongruity soever time shall discover the remedy will be past.

3.

Such being the state of the case upon which it seems that an appeal was made to the Government on the part of the President and Council of the Marches, the question was in what way the government should interfere. The next paper, which appears to be by the same hand as the last, and must also have been written while Coke was still Attorney-General, gives what Mr. Heath supposes to be the substance of Bacon's advice upon this point. It is a fair transcript in the same handwriting as the other, and without any corrections. The original docket was simply "Wales," in Salisbury's hand, over which a more modern pen has written, " Answer to the Judges' reasons: justifying the proceedings in the Court of." But its main object is to recommend a practical measure for determining the controversy; and it might be better described as a

SUGGESTION SUBMITTED TO THE EARL OF SALISBURY FOR THE SETTLING OF THE DISPUTE BETWEEN THE KING'S BENCH AND THE COURT OF WALES.

The President and Council in the Marches of Wales have usually before the statute and ever since determined matters of meum and tuum, as well in the four shires as in Wales, without contradiction; as by precedents of that Court for every shire ready to be shewed may appear; and are warranted so to do by the 9th article of their instructions.

Against this practice the Judges object matter of law and matter of inconvenience.

For Law, they deny that the four shires are within the

marches, and that being not included in the statute of 34 H. 8, they must therefore follow the course of common law, and have these matters determined at Westminster. And that the Judges of the King's Bench, being sworn to do justice to every subject that seeketh it at their hands, cannot without perjury refuse to give prohibitions to any that demand them in these cases.

To the first point hereof we answer, that the Marches were never limited by any written law, but by common reputation only, and that diversely according to the times. And as the Lordships Marchers were esteemed Marches before 27 H. 8, at what time they were extinct, so both before and ever since these four shires in common reputation and also in usage have been held for Marches; as by the precedents of that Court ready to be shewed may appear; which reputation and usage in other cases hath made law, as by Mr. Attorney's own reports may plainly be proved.

For the second point; as the reverend Judges, though sworn to do justice to all according to law, yet many times in mercy and conscience both reprieve prisoners, and stay judgments after verdicts, and forbear prosecutions if cause so require, and that justly because salus populi est suprema lex; so no doubt they may be sparing both in prohibitions and habeas corpus in this case, wherein not only the good of all the people of those shires, but also his Majesty's prerogative royal is so highly engaged.

:

For matter of inconvenience, Mr. Attorney objecteth; that God forbid men's inheritances should be tried by any Court of equity, or by men's discretions only.

To this we answer, that though the statute enables his Majesty to authorize this Court to judge of men's inheritances, yet his Majesty in his instructions never giveth them that power, further than concerneth the installing of possessions, which Mr. Attorney himself denieth not to be fit. The matters then of debt are the chief which are here dealt in; and these are in like sort determined at York, as by their instructions doth appear. And if these petty suits should be drawn to London, all the traffic betwixt the Welsh and English must of necessity decay, and Wales must again grow wild and barbarous, as his Lordship (by whose grave wisdom the last instructions were directed) did of his own