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 knowledge and experience well remember, and the Welshmen must be forced to seek foreign trades with the Irish and others; the inconveniences whereof are best known to your Honour; as also that these forgotten wisdoms of our ancestors, who by the union of these shires in traffic, alliances, and common justice reduced them first to civility and peace, should not without manifest and great necessity be changed. And whereas the freedom and birthright of the subject is so much urged, your Honour may be pleased to consider whether in all Magna Charta there be any greater benefit than this-to have near and cheap justice: and whether the Attorneys of the Courts of Common Law inhabiting those shires, from whom all this business springeth, do seek their own or the people's good, when they would draw them an hundred miles and make them spend twenty nobles and a twelvemonth's time to recover forty shillings: and whether as the administration of justice in particular men's causes is necessarily delegated to men of law, so the provincial and equal distribution thereof doth not in all countries belong unto men of state, as a chief branch of the King's prerogative; who as Pater patriæ, and the source of all laws, will ever be more wise for his people than they are for themselves; though in this case every one be sensible enough of his own interest and ease, and of the great difference of charge and expedition betwixt the Council there and the Courts above. But for the determining of all this controversy. If his Majesty will be pleased for the preservation and strengthening of his prerogative in these shires, and for the continuance of the peace and good government thereof, but to grant such a commission unto the Lord President for them, as he granteth for York, and as former Kings granted for Wales and the Marches, before the statute was made; Then it may be hoped that the reverend Judges will give way to h [four or five words worn away here in the MS.] alike; and the people of both places shall find equal care over them, and continue as they have done so many years under this government in unity and peace. The practical measure, therefore, recommended by Bacon at this time, that is in 1605 or 1606,-for settling the difference, (assuming that Mr. Heath is right in regarding this memorial as "substantially embodying his advice") amounts to this. The interference of the King's Bench having begun upon an assumption that it had authority to control the Provincial Court even in matters within its jurisdiction; and this assumption having been subsequently withdrawn, and the justification of the proceeding rested upon the assertion that the four shires were not within its jurisdiction; let them be now brought within its jurisdiction, and the dispute would cease. Now it was not denied that the Council of the North, which had a similar jurisdiction, derived its authority from the King's Commission only, without any Act of Parliament then or afterwards to warrant it;1 and so did this very Council of Wales and the Marches, for several years before the passing of the statute by which it was confirmed. If therefore it was doubted whether its jurisdiction extended to these four shires, let a new commission be issued conferring that jurisdiction upon it. 4. In the earlier stages of the dispute it is possible that such a measure would have answered the purpose. But I suppose that when the question came to be agitated in the House of Commons (as it was in the session of 1605-6) and threatened to take its place among the Grievances, the assumption of such an authority by the Crown (though not so great as that which had established the Council of the North, inasmuch as it would have rested on usage of long standing and till then unquestioned) was thought impolitic and hazardous. It was resolved therefore to let it rest upon the law as it stood, trusting that the appointment of a new President, with reformed instructions, would remove the causes of dissatisfaction. A new President was accordingly appointed in the summer of 1607, a new set of instructions issued, and the following Proclamation drawn up, apparently by Bacon, and with reference to them; though I cannot find that it was ever published. R. PROCLAMATION TOUCHING THE MARCHES.3 It hath well appeared since our coming to the Crown of this our Realm of England how little we affect change and innovation; having maintained and preserved the whole frame of the government, as we found the same, and all estates and degrees in their ancient dignities, liberties, and privileges; even to the VOL. III. + Coke's Institutes, part iv. c. 49. 2 See Preamble of Subsidy Act, 32 Hen. VIII. c. 50. 2 c continuing of particular persons in their services and places, with very rare and sparing removes or alterations: In respect whereof as all our loving subjects are the more our debtors that none of them on their part do offer or presume to make any innovation upon us and our prerogatives and legal jurisdictions, so are we ourselves the more engaged and obliged to make and retain the like measure to our Crown and our posterity which we have freely made and yielded unto our subjects. And although it is and ever hath been our princely resolution to give unto our laws their full force, free course, and right use, in all cases already adjudged, decided, and ruled; and in all cases the nature whereof dependeth wholly upon a legal science and interpretation; So on the other side, where we do find an ancient possession in our Crown without interruption, and a question or doubt newly stirred, and that the cause is likewise mixed with consideration of estate, which cannot fall under the ordinary and vulgar rule of law; we are also in ourselves resolved not to lose or give over, but to continue and maintain, every such ancient possession and practice of jurisdiction, and in no sort to endure, under the pretence of any opinion of law, either the acts of our predecessors to be blemished or questioned, or the rights of our posterity to be diminished or prejudiced; except such alteration should be introduced by the advice of our three estates in Parliament, unto whose counsels we shall always be ready to give a gracious hearing and respect. Whereas therefore it is come to our knowledge that certain questions have been lately moved tending to the impeachment and overthrow in great part of the jurisdictions of our two provincial Counsels established, the one in the Marches of Wales, the other in the Northern parts, which our said Counsels have had a continuance of their authority by the space of four regal descents of this Crown, and the one of them much longer, and were instituted and ordained as well for the ease and succour of the poorer sort of our subjects, as for many other politic considerations, which we reserve to our own censure; and have since from time to time had their authority warranted by instructions under the signature of former Kings; and have had the places of their Presidents supplied by principal persons of the Nobility, and Bishops, and Counsellors of Estate; and the rest of the body of the said Counsel compounded in part of divers great learned men in our laws, some of them Judges; and have had their jurisdiction affirmed by continual references of causes from our Courts at Westminster, and generally obeyed as well by our ministers and officers as other our loving subjects of all degrees; Although we have just cause to think those questions moved to be in derogation both of our power and honour, and thereby mought have been provoked to a more severe and peremptory course herein, yet nevertheless such is our inclination to clemency and moderation as we are willing rather to correct the fault than to deal with the persons whom it may concern; and in our proceeding with the persons, first to warn before we punish; and further also not so to be transported by dislike of the course taken, but that we are content likewise to look into the occasions whence the griefs may arise. First therefore to the end to remove all just ground or colourable pretence of complaint, we have by advice of our Privy Council reviewed and reformed our instructions, reducing them to those limits and restrictions which we thought fittest for the times and the good of our people, and for the avoiding any occasion of abuse in the execution of them, and for the better correspondence and agreement of those jurisdictions with our principal Courts of Justice; which our proceeding, as it cannot but give great satisfaction to all that are dutiful and modest, so we intend thereby to take away all excuse from such as are contemptuous and turbulent; and to the end that the said limitations may be publicly known, we have given charge to our Presidents severally that those parts and articles of our instructions which concern ordinary justice, they do no more keep private, but record them in such convenient place and manner as every man may have access to them, and sight and knowledge of them. And thus having removed all colour and pretence of want of notice of the authority by us given to our said Counsels, or of just exception to the same, we do by these presents publish and declare to all our loving subjects, and do ordain and establish and command, that from henceforth the authority and proceedings of our said Presidents and Counsels (keeping themselves within the compass of our instructions) be duly and fully, without making further questions or practising any manner of evasions, acknowledged and obeyed. And for that purpose we do hereby straitly charge and command as well all our Sheriffs, Undersheriffs, Bai |