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diction was, in principle, to give up the strength of their case, and to render illegitimate all remonstrance against any subsequent encroachment of the Crown, until (as in fact happened) the whole obnoxious authority of the Council might be restored.

Besides this Constitutional ground of opposition, which was the one mainly insisted on, and the apparent breach of faith on the part of the King, there were causes enough of irritation in the conduct of the matter by the Privy Council and Lord Eure, although the latter asserts, (what his opponents con tradicted, and what I cannot either confirm or deny,) that his administration was free from such harshness and arrogance as had provoked hostility towards his predecessor.

Sir Herbert Croft was put out of the Commission of Lieutenancy and of the Peace, not, it is said, without much difference of opinion in the Privy Council'; and Lord Eure attributes his subsequent opposition to vexation at this slight. The terms of the new Instructions were, as usual, kept private2; and Lord Eure when questioned on the subject seems to have been purposely ambiguous. By his own account he "answered that his Majesty had not exempted the four English Shires from the sole jurisdiction of this Court," and promised "judicial sentence of such causes as by Instructions we should admit ; and by way of comment on this information, a complaint being made about the conduct of a magistrate (and therefore not within their jurisdiction) in a matter concerning a tenant of Sir H. Croft, the Council called the parties before them, and, apparently without disclosing that in fact they had no power, got them to submit to some course of arbitration. Sir Herbert took up the case and obtained a Prohibition.

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The result of all this was, that before Christmas a sturdy resistance was organised against the Council: in Herefordshire, the Bishop and twenty-six of the principal gentry joined in

'Carleton, Sept. 16th, calls it "out of the Commission of the Council of Wales," which I suppose is a loose expression. I take the fact from Lord Eure and official returns. It is possible it was as Papist, and not in consequence of his Parliamentary conduct, that he was thus disgraced. But Sir Roger Owen, who according to Carleton was at the same time displaced, was also a prominent advocate on the same side. See Parliamentary debates, and Sir H. Croft's letter to Somerset, Dec. 19th, 1614.

2 Bacon's Proclamation proves the custom, and Lord Eure's own letter, Feb. 6th, 1607-8, shows it had not been departed from. I have no doubt the contents of the Instructions became known in the course of time-perhaps by letters from the Privy Council to the Sheriffs, enforcing obedience, suggested by Lord Eure in Feb. 1607-8, and apparently written in the following August. See Eure's letter of Aug. 7th.

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urging Sir H. Croft to continue his exertions to free them; and in Worcestershire the Sheriff, Sir John Packington, a veteran courtier of Elizabeth's time, supported his under-sheriff in refusing to obey the precepts of the Court. Lord Eure wrote more than once to Salisbury describing the untenable position in which he was placed, and urging that the powers of the Council in the English Shires should either be raised to something like what they had been, or else altogether given up, and tendered his own resignation if his request were set aside.

It was determined that the question should be taken up by the Privy Council. In April, 1608, the Chief Justice of Chester proceeded to London with records tending to make out the jurisdiction of the Council, and Lord Eure was in readiness to follow when required. The more general question—the first one that had been mooted in Fairley's case-of the right and duty of the King's Bench to issue Prohibitions to other courts, and its extent, was assuming importance, and the "cause of the four Shires," that of the Council of York, and this general question came to be considered together. Bacon, as Solicitor General, was of course concerned in the matter; but up to July he seems to have had no confidential communication of the King's views, to have thought a Parliamentary settlement desirable, but to have guessed that the dignity of the Prince of Wales would be thought at Court to be affected if the Welch Council should have its territorial limits restricted.1

It was out of a decision taken at a meeting of the Privy Council on Nov. 6th, that the arguments here reported arose. The King propounded the question, "whether the article of the Instructions touching hearing causes within the four shires under 107. be agreeable to the law." Coke, now Chief Justice of the Common Pleas and the mouthpiece of the Judges, asked for time and the opportunity of hearing counsel before giving an answer. A somewhat indecorous altercation followed between him and the King; and ultimately it was settled this question, and, it would seem, some other ones touching both Councils, should be argued before the Judges; that the Presidents of Wales and York should instruct their own counsel; and "the King's own counsel should inform the Judges of his desires;" and the Judges were to "hear what any could say

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1 Commentarius Solutus qu. supr. The King did think in 1614 that the matter

concerned the Prince.

against the same, and to return their report what they had heard on both sides, and leave the judgment to the King."

The matter was argued for six days, of which four were taken up by the counsel for the Crown and the Council. I suppose that the extent of the prerogative was not considered to be referred to the Judges, or else it was disposed of before the arguments we have were commenced; and probably no one will now take an interest in the mere question of the legal interpretation of the statute, checked or assisted by the evidence of anterior and contemporary usage: if any do, he will find other arguments on each side in the Cotton MSS. and the State Paper Office. I do not profess to have studied these documents very closely; but the case seems to me very arguable on both sides as the matter then stood: and perhaps the Subsidy Act already referred to, to which I believe no allusion occurs, gives equal handle to either side. It speaks of the Council as established "in the Marches of Wales and the Shires thereunto adjoining." This was after the destruction of the Lordships Marchers of which Bacon makes so much: it therefore helps those who contend that "the Marches" had still their old meaning and were distinguished from the Counties. But then it shews that at the time when it was enacted that the Council should be and remain as heretofore hath been used," that Council with some kind of jurisdiction extended over the adjoining shires and it leaves it unexplained why those Shires and that Jurisdiction are not mentioned at all in the later Statute. What appears to me most striking, both here and in the argument on the Writ Rege Inconsulto, is the ease with which Bacon throws off the tone of the Minister of State and the courtier when he comes to argue before Common Law Judges. It was not a common accomplishment in those days.


The opinion of the Judges was delivered in writing by Coke on Feb. 3rd, 1608-9. Its substance was never published; though pressed for in Parliament. We may therefore infer that it was not favourable to the Crown; and Sir H. Croft was probably well informed when in a letter to Somerset intended for the King's eye3 he says it was generally under

'Lansdowne MSS. 160.

2 See Petition of Grievances, printed in State Trials, vol. ii. p. 519., from Petyt's Jus Parliamentarium.

8. P. O. vol. lxxvi. 53. early in 1614.

stood they reported that "not disputing H. M's. regal power, in mere points of law those four English counties ought not to be under that Government."

The King noted upon this, "I have followed the Judges' advice in this business:" but he does not particularise how and when, and the assertion, to whatever time referred, can, I think, only rest upon some quibble. On this occasion the Judges were expressly confined to the dry legal question; nor can I find a trace of anything at all having been done thereupon, unless perhaps to give some fresh coercive power to the Welch Council.1

If this last surmise be well founded, it may account for the lull which seems to have followed for the rest of the year 1609, if one may judge from the absence of any complaints in the State Paper Office by Lord Eure. But before the meeting of Parliament in 1610 we find the agitation in full vigour, and so far was the King from shewing any reliance on the conformity of his instructions with the opinion of the Judges, that the Chancellor's powers were called in aid of State policy to stay by Injunction the numerous actions for False Imprisonment and motions for Prohibitions to which the malcontents resorted for the purpose of trying the right.

In Parliament the grievances of the four Shires were again brought forward2 and supported by the House at large; but not so earnestly as to risk for their sake the success of the great bargain then under discussion. Nevertheless the King found it expedient once more to stop legislation on the subject by another promise, viz. that "he would after Midsummer then next give leave to any man to try the right." The main business of the Session came to nothing, and Parliament closed

We have already seen that Lord Eure pressed for greater powers as absolutely necessary if he was to hold his ground. Now in Cott. MSS. Vitell. c. i. p. 192. there is a paper which I take to be written after the close of the Session of 1610, in which it is said that "the Instructions that are now are of larger extent than those which were sent down about 3 years since, upon the first complaint." It is possible, but in my opinion very improbable, that the allusion may be to the instructions preceding those to Lord Eure, if they were ever issued.

2 Sir H. Croft suggested they might submit to the Prince of Wales as President. H. C. Journ.

3 In 1614 Sir H. Croft alleged this promise and the breach of it by continued Injunctions, in a letter to Somerset S. P. O. vol. lxxvi. 53. I. The King notes on it "conditional: "-I suppose on the great bargain being brought to a successful issue. In the House, the letter to the Speaker containing the promise was called for the Master of the Rolls, in whose custody it had been placed, professed to have lost it, but acknowledged it was to the effect stated by Sir H. Croft, who had a copy of it. H. C. J. May 20th and 31st, 1614.

with a speech of the King only promising enquiry and not holding out much prospect of yielding in this matter, but engaging never to erect any other such Court but by Act of Parliament.

The struggle was continued out of doors. A Grand Jury presented the Council as a nuisance; 5000 signatures were subscribed to some declaration to the like effect2; the process of the Council was set at nought, and actions brought or threatened. On the other hand, Lord Eure represents all this turmoil as the factitious result of the exertions of a small body of discontented men, and invited investigation by an impartial commissioner, and he gave figures to shew the popularity of the Council as a Small Debts Court.3

Parliament met again in 1614. Sir H. Croft, who was one of those denounced as "undertakers," had endeavoured, before the Session commenced, to gain the ear of Somerset, the new favourite, and win over the King, if not to give up the jurisdiction, at least to keep his promise and let the question come fairly before the Courts at Westminster. In letters already referred to, he went over the whole ground. He professed himself a friend to any general measure for establishing Civil Courts in remote counties, but resented the imputation that the gentry of the four Shires specially needed such a check on their oppressive disposition; and he pointed out that the existing state of things, in which as plaintiffs they could choose their own tribunal, was not effectual for the purpose. He made sundry charges (of venality among others) against the Council, and finally proposed to "answer any objections in His Majesty's presence, that himself may be the judge," which he did "not impugning the extraordinary abilities of those (if he mistook not) that were the chief oppugners:" of whom I presume Bacon was one. The King in a marginal note accepted this challenge, with as large an audience as Sir Herbert might wish, and no doubt would have much enjoyed the passage of wits. However, I find no trace of its having taken place. On

' Carte, Hist. Eng. vol. iii. 794. But I think I have seen somewhere a denial by the King that his speech was so explicit on this point.

2 S. P. O. vol. lvii. 96. lviii. 56. Cott. MSS. qu. supr.

3 The causes tried in the four sbires increased from 1350 in 1608-9 to 3376 in the following year; and he remarks that the plaintiffs had the option of going to Westminster if they pleased.

'Some measure of the sort was brought under the consideration of Parliament when it met. House of Commons Journal, May 18th.

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