But this is so far from countenancing that exposition, as, well noted, it crosseth it; for opposita juxta se posita magis elucescunt: first, it may be the intent of Sir Thomas in the first clause was double, partly to exclude any land in demesne, partly because knowing the land was double, and as some say quadruple, better than the rent, he would have the more scope of revocation under his twenty pounds' value. But what is this to the clause of recompense? First, are there any words secundum computationem prædictam? There are none. Secondly, doth the clause rest upon the words similis valoris? No, but joineth tantum et similis valoris. Confound not predicaments; for they are the mere-stones of reason. Here is both quantity and quality. Nay he saith farther, within the same towns. Why? Marry it is somewhat to have men's possessions lie about them, and not dispersed. So it must be as much, as good, as near: so plainly doth the intent appear, that my Lady should not be a loser. For the point of the notice, it was discharged by the Court. PREFACE. THESE arguments were delivered in the course of a contest of some historical interest, which was carried on, in the Courts, in Parliament, and out of doors, through the greater part of James's reign, and indeed earlier. The dispute, in its legal aspect, is closely connected with large constitutional questions, which then occupied the minds of men; and the discontent which sustained it may, perhaps, be deemed as much a symptom of the general ferment which was everywhere souring the relations of the Court and country, as directly ascribable to substantial grievances inflicted by the Council on those subject to its jurisdiction: nevertheless the matter has a separable history of its own, a summary of which may not be out of place as an introduction to these arguments.1 The Court of "the President and Council in the Dominion and Principality of Wales and the Marches of the same," originating in earlier and more disturbed times, was confirmed by Parliament 34 35 Hen. VIII. c. 26., one of a series of statutes for regulating that province, and giving large legislative powers to the King for that purpose. It was armed with discretionary power over such matters as should be assigned to it by the King, "as theretofore had been accustomed and used." The more noted Council of York had been erected some years earlier without either statute or custom to support it; as had also a third Provincial Council for the Western Parts, which, however, was soon dropt, owing, as Coke tells us2, to strong local opposition. All three Councils are recognised as a meritorious cause of expense to the King in the Subsidy Act A large mass of materials are collected in a volume of the Cotton MSS. Vitellius C. i. devoted to this subject and referred to by Mr. Hallam. See also Cott. MSS. Titus B. viii. Many of the same documents, and a great number of others are in the State Paper Office. Mr. Spedding had copied some of the most important, and made extracts from others, before I began my task: the publication of the Calendar has made it easy for me to glean some further information. 2 4th Inst. 246. 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 Court; in civil questions staying, setting 1 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. This power is openly and without circumlocution given in a series of instructions, |