Archaeologia/Volume 38/The Political Geography of Wales
II.—The Political Geography of Wales. by Henry Salusbury Milman, Esq., M.A., F.S.A.
Read 6th May, 1858.
The historical drama of a country is imperfect and hardly intelligible unless it represent the scenes on which, and the political conditions under which, its action takes place. Its narrative should he accompanied by a contemporary view of the political geography,—of the territorial limits and divisions of the country, so far as they affect or are affected by the course of political events.
That part of our national history which concerns Wales in its relation to England especially requires such illustration.
The political geography of Wales belongs and is confined to the period of its separate political existence; which, however, did not terminate so early as is generally assumed. Wales indeed finally submitted to the English power in the reign of Edward I., but it never became part of the English Realm until that of Henry VIII. It was then annexed by the English Legislature, and politically merged in the united Realm of England and Wales.
The name of the greater country alone has been and is frequently used, not only in popular but in official language, to denote the whole, and the Legislature has declared that in statutes it shall be so understood: yet the name of the lesser survives—a legitimate consequence of, and a perpetual testimony to, distinction of race and language, and an honourable record of independence preserved long after the Anglo-Saxon states had been merged in the kingdom of England.
The political boundary of Wales originally coincided with its physical or geological boundary as laid down by modern science,—namely, the line of the rivers Severn and Dee. But this was soon over-stepped by the Anglo-Saxon invaders, who gradually forced the Welch further to the westward, and established a new boundary, at first indeterminate, but at length defined by Offa's Dyke. The frontier territory traversed by the Dyke was then and long after known as the Marches of Mercia (or England) and Wales.
The precise relation of the Dyke to the Marches, and the peculiar political and legal character of the latter, are derivable from the nature of the Anglo-Saxon Mark, or March; which is thus described by the most accurate authority on the subject:—
"The word Mark as applied to territory has a twofold meaning; it is, properly speaking, employed to denote, not only the whole district occupied by one small community, but more especially those forests and wastes by which the arable is enclosed, and which separate the possessions of one tribe from those of another. The Mark or boundary pasture land, and the cultivated space which it surrounds, and which is portioned out to the several members of the community, are inseparable; however different the nature of the property which can be had in them, they are in fact one whole; taken together they make up the whole territorial possession of the original cognatio, or tribe. The ploughed lands and meadows are guarded by the Mark.
"The most general characteristic of the Mark in its restricted and proper sense is, that it should not be distributed in arable, but remain in heath, forest, fen, and pasture. In it the Markmen had commonable rights; but there could be no private estate. Even if under peculiar circumstances any Markman obtained a right to essart or clear a portion of the forest, the portion so subjected to the immediate law of property ceased to be Mark."
"It is certain that some solemn religious ceremonies at first accompanied and consecrated the limitation of the Mark. What these may have consisted in among the heathen Anglo-Saxons we cannot now discover; but, however its limit was originally drawn or driven, it was, as its name denotes, distinguished by marks or signs."
"No matter how small or how large the community, it may be only a village, even a single household, or a whole state, it will still have a Mark, a space or boundary by which its own rights of jurisdiction are limited, and the encroachments of others kept off. The more extensive the community which is interested in the Mark, the more solemn and sacred the formalities by which it is consecrated and defended. Nor is the general rule abrogated by changes in the original compass of the communities; as smaller districts coalesce and become, as it were, compressed into one body, the smaller and original Marks may become obliterated and converted merely into commons, but the public Mark will have been increased upon the new and extended frontier. Villages may cease to be separated, but the larger divisions which have grown up by their union will still have a boundary of their own; these again may be lost in the extending circuit of Wessex or of Mercia, till a yet greater obliteration of the Marks having been produced through increasing population, internal conquest, or the ravages of foreign invaders, the great kingdom of England at length arises, having wood and desolate moorland and mountain as its Mark against Scots, Cumbrians, and Britons, and the eternal sea itself as a bulwark against Frankish and Frisian pirates."
From this view of the Mark may be derived a clear distinction between Mark and limit, as applied to the territory of this island in early Anglo-Saxon times; both express the idea of boundary, but the former is boundary land, the latter a boundary line. The common boundary of adjoining communities, fully understood, is the common limit of their adjoining Marks.
The limits of the Marks of the Anglo-Saxon kingdoms toward each other were doubtless early ascertained with sufficient accuracy, and recognised in their mutual public transactions. The kingdom of Mercia, emphatically the Mark country, chiefly formed out of the original Mark against the Britons, and always, and at length exclusively, bordering upon them, falls under peculiar considerations. Down to the reign of Offa its western limit seems to have been left undefined, and in fact was perpetually advancing as the Britons receded; while, on the other hand, the Britons were ever withdrawing their settlements to some distance within their line of defence, leaving the intervening space as a protection against their encroaching enemies. And thus the Mark of Mercia toward the Britons ever adjoined a district corresponding in its main features, namely, the Mark of the Britons toward Mercia.
In proportion as the social and political institutions of an infant state become more firmly established, arises the necessity of defining the territorial limits of its authority, and of enforcing their due recognition. Mercia had, under Offa, attained great power and prosperity, and it may well be supposed that this necessity had not escaped his attention. The state of the western border of his kingdom was such as to require a definition of this kind to be made without delay.
The Mark of the primitive settlement, in which no one had an exclusive property, and which remained unimproved, uncivilised, and imperfectly subject to public authority, is described as "unsafe, full of danger; death lurks in its shades, and awaits the incautious or hostile visitant." It presents the germ of those evils which attained their full development in the Marches of Mercia and Wales. The district being of great extent, and partly of inaccessible character, and little controlled by the governments which claimed authority over it, early became the receptacle of lawless and predatory bands, which perpetually disturbed, plundered, and oppressed their more settled and civilised neighbours, and almost with impunity. It further served to conceal the advance and cover the retreat of the more regular invasions, by which the Welch Princes constantly avenged the wrongs of their race, and endangered the power or checked the conquests of the Mercian Kings. It became, in short, a standing menace to the Mercian people and government, daily more intolerable, and calling more loudly for repression.
The primitive Mark was from time to time, as social or political causes arose, reduced by public authority, and, to the extent of such reduction, deprived of its character as Mark—that is, parcelled out among private owners; and, if the Marks of two communities adjoined, such a measure on the part of either was preceded by an agreement as to their common limit. The remedy applicable to the condition of the Marches of Mercia and Wales was analogous, namely, to reduce, and, so far, to unmarch them—to plant regular settlements, and extend efficient government in the waste and lawless district—to confer upon civilised bodies of Mercian subjects a personal as well as national interest in its preservation and improvement, and so to constitute them a firm and enduring bulwark on the frontier. The first step toward this policy was the establishment of a common limit of these Marches, and such a limit was Offa's Dyke.
It was not likely that a nation still powerful and independent would readily acquiesce in a diminution of territory, the consequence of a series of defeats, or would regard otherwise than with hostility a boundary line drawn against itself, partly, perhaps, by its own reluctant hands, or would view with indifference the advance and increase of hostile settlements. The moral and legal character of the Dyke was scarcely sufficient to maintain it inviolate, and the new settlers would scarcely be strong enough at first to hold their own positions, much less to guard the national frontier also. The history, topography, and form of the Dyke all support the probability that, though chiefly and primarily a line of demarcation, it had also a defensive character as against the Welch. The nature of the defence is somewhat obscure. Whether the theory of a system of patrol or ward, maintained, in part at least, by a charge on the neighbouring lands, be established or no, it may be supposed that in time of war the parts of the Dyke covering the natural approaches to the country were occupied by bodies of troops, who were thus enabled to act with advantage against more numerous enemies.
The important place of the Dyke in Anglo-Welch history appears from other attendant circumstances and considerations. A work of such magnitude and permanence could not have been undertaken, much less effected, except in fulfilment of a formal treaty between the rival nations—a treaty facilitating its construction, not only by a truce in the meantime, but also by stipulations for united and perhaps additional and compulsory labour in the thinly-peopled districts through which the Dyke was to be traced. The Mercians, as compared with other Anglo-Saxon nations, had but lately emerged from Paganism, under which they had been accustomed to regard the Mark with peculiar sanctity, and to consecrate its limitation with the most solemn rites. That they did not omit to confer upon this, their greatest and most important boundary line, the highest sanction which their newly-adopted religion would permit, may be concluded from the legend preserved by the biographer of Offa. But "long opposition to the introduction of Christianity had been punished by the absence of the arts and knowledge attending civilisation, as well as of institutions conducive to that object. Mercia has left us neither the name of an author, nor even a meagre chronicle." The records of the treaty under which, and of the extraordinary means by which, Offa's Dyke was constructed, have long since perished.
The construction of the Dyke was immediately followed by the occupation of the Mercian March. "Offa drove the Welch beyond the Dee and Wye, and filled with Saxons the plain and more level regions lying between those rivers and the Severn." The accounts of the gradual occupation of the land on the eastern side of the Dyke and the river Wye by the English, shew that the same policy was continued by the rulers of Mercia, and subsequently of England.
The boundary line of Mercia and Wales, thus established with due solemnity by the authority of both nations, was constantly recognised as such during the Anglo-Saxon age. Cenwulf, the immediate successor of Offa, vindicated it on the north by his famous victory at Rhyddlan. Early in the ninth century Egbert, King of Wessex, added Mercia to his dominions, and adopted its western limit. "Punishments of the most frightful character are denounced against him who violates" the Mark of the primitive settlement. "By Egbert the monarch was a law made, that it should be present death for the Welch to pass over Offa's Ditch, as John Bever, the monk of Westminster, reporteth." "The southern portion of the Dyke accompanies, and sometimes appears to coincide with, the lower course of the Wye. Æthelstan, in summoning the Welch Princes to Hereford as to a frontier town, and confining their subjects within the Wye, was merely confirming the great work of Offa. The passage of the Wye by the Welch was ever regarded as an invasion. In the eleventh century, "when the Britons had invaded and were devastating England, Duke Harald was sent by the most pious King Edward to expel them. With the edge of the sword he reduced the province to peace, and made a law that any Briton soever, who thenceforth should be found with a weapon on this side of the boundary line which he had laid down for them, namely, Offa's Dyke, should have his right-hand cut off by the officers of the kingdom."
Such was the recognised character of the Dyke at the time of the Norman Conquest of England. Neither then, nor ever during the period that Wales remained separate from England, was any other limit of the two countries laid down.
Subsequently to the Conquest the Marches of England and Wales, and, lastly, the remainder of Wales itself, fell under a peculiar system of occupation and government, which superseded this national boundary line, and almost effaced it from history. Offa's Dyke no longer obtained express mention, because no historical or political event turned on the common limit of the Marches, which came to be regarded as one district of uniform character, and to be called, by an obvious abridgment, the Marches of Wales. The practical distinction for legislative and administrative purposes was between the shires of Chester, Salop, Hereford, and Gloucester, according to their ancient bounds, on the one hand, and the Marches on the other; yet the ancient character of the Dyke continued to be recognised in matters of local description.
The system of occupation and government referred to is that under which the Crown of England and its Barons acquired and ruled Wales and the Marches as a vast aggregate of independent lordships. An explanation of this system involves the political relation of Wales to the Crown and Realm of England at successive periods.
The Mercian, and subsequently English, policy of planting settlements in the March of the kingdom toward Wales received a new and aggressive development in the reign of Edward the Confessor. Harald, to whom the government of this March had been committed, emboldened by a series of successes against the Welch, formed the design of occupying their March also, probably as a step to their ultimate conquest.
The entries in Domesday Book, relating to the territory on the west side of the Wye, lead to the conclusion that Saxons were permanently established there in this reign. Doubtless they became so in furtherance of the design, and under the protection, of Harald, who himself crossed the river, and commenced building a fortress at Porth Iscoed on the Severn. His own settlement was indeed soon after destroyed by the Welch, but those of his countrymen in the same district appear to have held their ground up to the Norman period. The hurried and important events of Harald's own short reign left him no leisure for the affairs of Wales; but his policy in this respect was adopted by the Norman Kings of England, and became a system of conquest, gradually overspreading, not only the March of Wales, but also its more settled and civilised districts.
When Edward I. ascended the throne, a native principality of Wales was still surviving, though acknowledging feudal subjection to the English Crown. The remainder of Wales and the Marches, as subjected to the English power, consisted of very numerous Lordships, of which some had been acquired by the Crown itself, and retained in its own possession (in proprietatis dominio), and the remainder, however acquired, were held of the Crown by feudal tenure (jure feudali subjecta), but were not in its possession. These latter were the Lordships Marchers (dominia Marchiarum) and the Barons who held them were called, in reference thereto, Lords Marchers (domini Marchiales).
Some Lordships Marchers originated in the submission of their Welch Lords, who anticipated the gradual but sure progress of the invasion, and saved their lands, by transferring their allegiance to the English Crown; but the greater part were created by conquest.
The vassals of the Crown made conquests by licence of their feudal superior, granted on the usual condition of tenure. This licence was not tacit only, as has been supposed, but often express, as in the charters of King John to Wennowen of Kevelioch, and to William de Braose.
The title of the King to his Lordships in Wales and the Marches rested on the same grounds as his title to the Realm of England,—namely, conquest and submission. The titles of his Barons to their Lordships Marchers were similarly founded. The sole distinction between a Crown Lordship and a Lordship Marcher was the condition of feudal tenure to which the latter was subject, a condition perfectly consistent with the independent sovereignty of the tenant within his tenement, as is evident from the example of many states of continental Europe during the feudal period. All Lordships in Wales and the Marches held by, or in chief of, the Crown were, in respect of internal government, alike independent sovereignties. The King had within his Lordships all royal prerogatives of dominion, jurisdiction, and revenue, not as King of England, but as Lord by conquest or submission. His Barons had within their Lordships Marchers the same prerogatives in their own right as Lords Marchers without any royal grant.
King Edward I. himself finally overthrew the last native government in Wales in the eleventh year of his reign, after which no new Lordship Marcher was, or indeed could be, created. In the following year he issued the famous Statutes of Wales, otherwise called, from the place of their enactment, the Statutes of Rhyddlan.
The instrument containing and authorising these statutes is well described by the Lords' Committee on the Dignity of a Peer, in their Report, as approved by the great lawyer Lord Redesdale. It is not, nor does it purport to be, a parliamentary act, but a charter of the King to all his subjects of the land of Snowdon, and of other his lands in Wales, emanating throughout from his sole authority, and having his own seal affixed. The absolute power of legislation which he assumed is that generally allowed to be inherent in a sovereign on foreign conquest, and was neither more nor less than belonged to every Lord Marcher, as well as to himself.
The King commences his charter by declaring that Divine Providence had brought the land of Wales, previously subject to him by feudal law, entirely into his possession, and annexed and united it to the Crown of his kingdom. This was strictly true of the newly-conquered principality, and in some sense of the more
ancient acquisitions of the Crown, but was quite inapplicable to the Lordships Marchers, which still remained in the possession of their Lords, and were not, and could not be, affected in this respect by a royal charter. If any further argument that this document is not a parliamentary act were wanting, it might be found in this unqualified claim to the possession of Wales, which the numerous Lords Marchers in Parliament would scarcely have admitted. This claim, however comprehensively worded, was effectual only to the extent of the territory in the King's own hands, as is further evident from the enacting part of the charter, which clearly affects that territory only.
The King's domain in Wales thus became annexed to his English Crown as a separate realm or sovereignty. The King, on creating his son, Edward of Caernarvon, Prince of Wales, granted to him by charter (7th Feb. 29 Ed. I. 1301) this royal domain, which thenceforth became the principality of Wales. Additional territories, acquired in the interim, were included in the next charter, that to Edward the Black Prince (12th May, 17 Ed. III. 1343). During two centuries the principality was usually granted to the heir apparent of the Crown for the time being, with, the singular limitation "to him and his heirs, Kings of England;" thus continually and finally revesting in the Crown, but never thereby merging or losing its separate existence. Arthur, son of Henry VII. was the last Prince invested with the principality itself by charter, and exercising jurisdiction in his own name. After his death (2nd April, 1502) his brother Henry was raised to the title, but received no similar charter. Probably the King and his advisers were already considering the irregular and inconvenient relation of Wales to England, and contemplating such legislative changes as were effected in the succeeding reign.
So long as Wales remained separate from the Realm of England, this Anglo-Welch principality within it had a political unity, as distinguished from the Lordships which occupied the remainder of the country and the Marches,—a distinction to be borne in mind in reference to many ancient documents and reports of legal decisions, which are otherwise unintelligible.
The division of Wales into shires can scarcely be said to have begun before the Statute of Rhyddlan. Pembroke and Glamorgan may have been called counties at an earlier date; but the words are not strictly synonymous. The primary meaning of shire is, a division of a realm; of county, the district held or governed by a count or earl. Every shire implies a realm, and was usually committed or left by the supreme ruler to the government of an earl. On the other hand, every county joined to a realm became a shire, or part of a shire. But many counties were not within any realm. Long after the formation of the ancient shires of Wales, the term "county" continued to be applied to Lordships Marchers which never even gave their names to shires, although, of course, comprised in the final shire-distribution.
The historian tracing the origin of the ancient shires of Wales is guided by the analogy of England. The Anglo-Saxon shires were of two classes. Those of the first class were originally distinct royalties, formed by the Anglo-Saxons out of lands acquired from the Britons. Those of the second class arose from the dismemberment of the larger kingdoms, and seem to have been formed by placing one or more wapentakes or hundreds under the government of an ealdorman or earl. In some instances smaller shires have been annexed to a larger district. Formed thus, at various periods and upon different systems, it seems to follow that, the shires were not necessarily administered according to a uniform scheme. Often the same ealdorman or earl presided over several shires, and also held great offices of state or commands: and hence the shire-government was early exercised by deputies.
In Wales the same causes produced the same effects. Welch shires of the first class may be represented by Pembroke and Glamorgan, originally great Lordships Marchers or counties, forming no part of the royal domain consolidated by Edward I. and granted by him and his successors as the principality of Wales, but gradually acquiring the government, and with it the name, of shires; and at length declared and confirmed as such by the supreme authority. Those of the second class derive their origin from the Statute of Rhyddlan.
This Statute names six districts, viz.: 1, Anglesey; 2, Caernarvon; 3, Merioneth; 4, Flint; 5, Caermarthen; 6, Llanpader and Cardigan; but does not purport to erect them into shires, neither does it clearly refer to them as such. The ancient national division into commotes seems to have been adopted as the basis of the new jurisdiction. As the Anglo-Saxon ealdorman or earl often presided over several shires, so the vice-comes under the Statute governed several commotes independent of each other. But every commote had its own coroner elected by itself, its own bailiff, and its own courts, with important powers and liberties. The Statute, however, was doubtless intended to pave the way for shire-government on the English system. Each vicecomital district, or aggregate of commotes, soon acquired a unity in itself, and, by analogy, the name of county or shire. Caermarthen was called comitatus as early as 18 Ed. I., Cardigan in 20 Ed. I., and Anglesey in 14 Ed. II. The commotes fell into a position corresponding to wapentakes or hundreds in England. Subsequently, these shires were more regularly divided into hundreds. It does not appear at what period or by what authority the three shires of North Wales (so called)—Anglesey, Caernarvon, and Merioneth—were so divided. The junction of the lordship of Mouthway (Mowddwy) to the latter shire as a commote by the Act of Union implies that, there at least, the ancient Welch districts had not yet been superseded. A later Act, uniting certain lordships and parishes to Flintshire, constitutes some into a new hundred, and annexes the remainder to one already existing: whence it may be concluded that the close connection of this shire with Chester had led to its early adoption of this English mode of division. The four ancient shires of South Wales remained undivided down to the passing of the Act of Union.
The distinction between Wales and the Marches did not cease with the final conquest of the native principality, but was continued in an altered sense, founded, however, as before, on constitutional and legal differences. "Wales," from the time of the Statute of Rhyddlan, had a twofold meaning. It was employed to denote not only the whole country of Wales as before, but, more especially, the royal domain or principality, including the territories from time to time added to or granted with it. Subsequently, the counties of Pembroke and Glamorgan fell under the royal power, and were included under the same collective term. In other words, "Wales" came to signify the shire-ground as distinguished from the Marches; and thus the name which in an earlier age denoted the native principality—the last refuge of the national institutions—in later times marked the districts of which the government and laws were more closely assimilated to those of the kingdom of England.
Process of time, rebellions and civil wars, and consequent escheats and forfeitures, gradually brought most of the Lordships Marchers into the possession of the Crown; which, concurrently, acquired a great increase of power at home.
King Edward IV., about the seventeenth year of his reign, sent his son Edward Prince of Wales, with a guardian and council, to Ludlow Castle, to assume and exercise there the government of Wales and the Marches. Hence arose the authority of the President and Council of Wales and the Marches, who soon became a recognised and permanent body. They sat by the Royal Commission, and proceeded in judicial matters as a Court of Equity. Their jurisdiction was extensive, and its limits not very clearly defined; and hence they became a powerful instrument in the hands of the Crown, which long successfully resisted their abolition.
The accession of the Tudor dynasty to the English throne was not only flattering to the pride and conciliatory to the spirit, but also conducive to the social and political advancement, of the Welch nation. Soon after that period, the legislation of the English Parliament for Wales, formerly restrictive and severe as for a conquered country, sought rather to reform the people and to assimilate the laws to those of England. Whenever it was possible, the statutes of the Realm of England were framed so as specially to include Wales. Formerly, measures of restraint were chiefly directed against the Welchmen of the Marches by way of protection to the adjoining English counties; now they were also applied to protect the same Welchmen against the oppression of the Lords Marchers and their officers. The "Act for recontinuing certain Liberties and Franchises heretofore taken from the Crown," so far as it affected Wales and the Marches, was preparatory and auxiliary to the Welch Act of Union, passed in the same session.
The "Act for Laws and Justice to be administered in Wales in like form as it is in this Realm," concerns not only Wales in its widest sense, but the March of England toward Wales also. Four distinct measures were deemed requisite for effecting its object, namely: 1, the union of Wales to the Realm of England; 2, the reduction of the Marches to shire-ground; 3, the extension of English laws to Wales; and 4, the extension of the English judicature to Wales. Of these, the two former were fully, the two latter only partially, carried out at this time.
As to the first, the Act, in uniting Wales to, did not confound it with, England. The common boundary lines of realms are not obliterated by political union; they are merely removed into the province of historical and antiquarian science. Their political existence, indeed, terminates; but, for that very reason, no occasion for their subsequent alteration can ever arise, and they remain historically unchangeable. That the union of countries concludes, in point of time, the question of their common limit, is little more than a truism, and applies as well to Wales as to the Anglo-Saxon states; for this comprehension of the former in the united Realm of England and Wales is strictly analogous to the earlier comprehension of the latter in the Realm of England. The extent of Wales, equally with that of Wessex or of Mercia, can only be discussed in reference to the period of its separate existence.
The second measure of the Act reduced the Marches to shire-ground; in other words, completed the shire-distribution of the united Realm of England and Wales, which thenceforth has consisted of fifty-two shires. With some trifling exceptions, the Lordships in the March of England were joined to English shires, and of those in the March of Wales some were joined to ancient Welch shires, and the remainder allotted into five new shires. Thenceforth accordingly the shires of Wales were reckoned thirteen in number. The territory comprised in them is nearly identical with the country according to its ancient limit; which, however, being anterior to, should be considered irrespective of, its shire-distribution.
Thus Wales and the Marches became historical expressions. The laws founded on the political position of the former as external to England, and of the latter as external to the shires, became practically obsolete. This consequence of the Act, in reference to the local administration of criminal justice implied in shire-government, drew an earnest remonstrance from the then Lord President of Wales, who regarded the Welch as yet unfit to enjoy this privilege.
The Legislature aimed at carrying out the third measure by a general extension of English laws to Wales, excepting, however, the rights of the Lords Marchers so far as they were compatible with the King's dominion and jurisdiction, together with certain local customs. But it was in the nature of the case that the full application of this general rule would long be delayed by national attachment to ancient laws, and by the power of vested and expectant interests; and that it was in fact so delayed is evident from many later enactments. The exceptions in favour of the Lords Marchers are probably due, not only to their great territorial influence, but also to the presence of many of them in the Parliament itself.
As to the fourth measure, the Act did not touch the President and Council of Wales and the Marches, nor the Court of Equity before them. It superseded the civil and criminal courts of the Lordships Marchers, which fell under the jurisdiction of the shires in which they were severally comprised. Further, it extended the English judicature to the new Welch shire of Monmouth; but, considering that the four other new shires were far distant from London, and the inhabitants thereof were not of substance, power, and ability to travel out of their own countries to seek the administration of justice, it established local judicatures there; and, for similar reasons, retained those already existing in the eight ancient shires. Hence this measure was of necessity left incomplete, until, in the course of time, and from the progress of society, these reasons should cease to be applicable.
The continuance of these local judicatures subsequent to the union of England and Wales, is the root of the modern dispute as to the common limit of the two countries. As early as the time of Speed, it seems to have been assumed by some, that the provinces of the English and Welch judicatures constituted respectively England and Wales. But neither reason nor authority supports this assumption. The history and antiquities, the language and literature, the established rights and laws of a country, constitute and characterize its nationality, and remain unaffected by a measure merely concerning the administration of justice. The Acts of Parliament concerning Wales passed in the years immediately following, and the Itinerary of Leland, who visited it at this very period, are evidence that these provisions of the Act of Union were not so interpreted by contemporary authority. To blot out the national name of a country solely on the ground that it no longer retains a separate judicature, is an unreasonable and useless change; and, with reference to a part only of a country, such a change is not merely useless, but directly and widely injurious, as breaking the national unity, and so introducing confusion into the general history of the whole.
Eight years after the passing of the Act of Union, these local judicatures of Wales, being found inefficient and inconvenient, gave place to a new and uniform system, created by the "Act for certain ordinances in the King's Majesty's Dominion and Principality of Wales."
The first section of this Act, that "Wales be from henceforth divided into twelve shires," is often adduced in support of the vulgar error respecting the extent of that country. These words, however, do not purport to declare the legal limits of Wales as then understood, but to create a new Wales, by naming the counties of which it shall thenceforth be constituted. This new limitation can only bear a qualified sense; not historical, for an Act of Parliament cannot alter history; nor political, for a political division between two countries already become and still remaining politically one is a contradiction in terms, and can only be compared to a reconstitution by arbitrary limits of the Heptarchy, without touching the integrity of England. Further, that it was not only of a qualified, but also of a temporary character a limitation for a special purpose only, which has now passed away, carrying with it the limitation is evident from the remainder of the Act itself, subsequent legislation, and the best authorities.
The Act comprises a variety of matters independent of its chief object. It contains 66 sections. The first is quoted above; the second confirms the limitations of hundreds, lately made within some of the ancient and all of the new shires, by Royal Commission under the Act of Union. The third continues the President and Council of Wales and the Marches of the same. The sections from 4 to 32 inclusive establish the new judicature. Of the remaining enactments some are rendered necessary by the existence of two separate judicial systems within the same realm; some assimilate certain laws of Wales to those of England; some are local, or personal, or commercial, arrangements; some relate to parliamentary representation; and some reserve certain rights and liberties. Finally, there was a clause giving to the King unlimited power of alteration, revocation, and re-enactment, which was repealed in the reign of James I.
The limitation of Wales to twelve shires by sec. 1, does not apply to sec. 2, which is merely supplementary to a former Act. Neither does it apply to sec. 3, continuing the President and Council of Wales and the Marches thereof, and the Court of Equity before them. The Act does not purport to alter or limit, but to strengthen and warrant, this Court, which still exercised authority over the same territory, although the Marches had become shire-ground. Sec. 1 in effect creates a judicial Wales as the province or scope of the new judicature established by sections 4 to 32, and therefore belongs to that set of enactments only. It lays down an arbitrary limit, which, so far as it serves its purpose, is reasonable and proper, but in all other respects is unreal and useless, and leads to confusion. The use of the term " Wales" in this limited sense in other parts of the Act, and in subsequent Acts not concerning the Welch judicature, involves no inconsistency. Such Acts must, from their very nature, extend to Wales in its full and real sense, but cannot therefore disregard the special sense affixed to the word by Parliament. Hence, to avoid ambiguity, they usually specify, in addition, those parts of it not included in the twelve shires; thus bearing witness, in substantial legislation, to the unity of the country, which, in nominal description, they are compelled to divide.
That such and such only was the meaning of this new limitation of Wales, is further evident from the remarkable proceedings taken during the following century concerning the Royal Commission of the Lord President of Wales and the Marches.
Although the ancient Marches were politically abolished by the Act which made them shire-ground, this Commission continued to be worded as before. "Wales," however, in that instrument, began thenceforward to signify the thirteen Welch shires; but the meaning to be attached to "Marches" was not so clear, and became the subject of an important controversy. It seemed applicable to the remainder of the ancient Marches which had been joined to English shires. But English shires were subject, in their entirety, to the English Court of Equity, and hence arose a conflict of jurisdiction.
In the reign of Elizabeth, the Crown, with a view to terminate this conflict, and not unwilling to extend at the same time the powers of its own officer, took occasion to insert the names of the shires of Salop, Hereford, Gloucester, and Worcester in the Lord President's Commission. In the 2 Jas. I. this Commission, so far as it comprised these four shires, was disputed, as an illegal encroachment of the Crown, on the ground that a Commission unauthorised by Parliament cannot raise a Court of Equity. The question was as to the meaning of the word "Marches" in the Act continuing the Lord President and his Court; the Crown alleging that it meant these four border shires. All the judges were specially assembled to consider this question. Sir Francis Bacon, then Solicitor-General, has fully set out the arguments used by the Crown, and the points which they were intended to establish or refute, in his tract on "The Jurisdiction of the Marches." The case against the Commission, the authorities cited in support of the case, and the decision of the judges, are recorded by one of the most eminent of those judges, Sir Edward Coke. The decision was unanimous against the Crown, and the King declared his intention of reforming the Commission accordingly. It was not, however, afterwards reformed at all points, as it ought to have been, and a Bill to exempt these four shires from the authority of the Lord President was brought into the House of Commons; hut this, after some discussion, was withdrawn, in consideration of a further promise from the King. The evil remained without adequate remedy during this and the following reign, and led to the appointment, by the House of Commons, of a Committee, including the knights and burgesses of the thirteen counties of the Principality of Wales, and of the four shires the Marches of Wales, to consider the jurisdiction of the Court of the Council of the Marches. On the report of this Committee, a Bill to exempt the four shires was brought in, and passed both Houses of Parliament, but never received the Royal Assent, and seems to have been dropped during the political troubles of those times. No legislation on the subject took place during the period of the Commonwealth, and the subsequent re-action in favour of royal power prevented it from being mooted during the reigns of Charles II. and James II.; but no sooner was the Revolution accomplished, than an Act was passed for the total abolition of the Court itself.
This Act was an important step towards unity of jurisdiction in matters of Equity throughout the Realm of England and Wales, but the local judicature of the twelve counties survived in full force to our own day.
An arbitrary limitation of territory, laid down for a special purpose, is inseparably connected with that purpose. They stand and fall together. Cessante ratione, cessat et ipsa lex. Wales, as the province of a separate judicature, was such a limitation. A series of Acts from the reign of Henry VIII. assimilated the procedure there to the English form, and at length the "Act for the more effectual Administration of Justice in England and Wales" abolished the separate judicature, and completed the work commenced at the Union by extending the jurisdiction of the Law Courts at Westminster to the remaining twelve shires,—thus virtually terminating the existence of the judicial Wales.
The popular opinion, that Wales consists of twelve counties only, was true in a certain special sense up to the passing of this Act; since then it has not been and is not true in any sense whatever. It was founded on the words of the Act for certain Ordinances in Wales: it was supported and strengthened by the exceptional position of the twelve counties as a distinct judicial district, a circumstance constantly present to men's eyes, and affecting their immediate business and interests, during three centuries. Its wide prevalence is scarcely surprising to those who have observed how vague and indistinct, for the most part, is the knowledge of Anglo-Welch history and legislation. It is to be marked as erroneous; and not only on theoretical grounds; for it brings confusion into the history, law, archæology, and geography of the whole border district, and is universally adopted in modern books of the latter science.
The line in the map of the united Realm of England and Wales separating off the twelve counties should disappear, as signifying nothing; for the fifty-two counties of the Realm now enjoy not only a political and legal but also a judicial equality. On the other hand, the line of Offa's Dyke and the river Wye should be drawn as an historical limit independent of the shire-divisions. It corresponds, generally speaking, with the ancient distribution of the fifty-two counties into thirteen Welch and thirty-nine English; and that distribution should be adopted, if any be necessary.
- ↑ 27 Hen. VIII. c. 26.
- ↑ 20 Geo. II. c. 42, s. 3.
- ↑ Kemble's Saxons in England, i. p. 42.
- ↑ Ib. p. 52.
- ↑ Ib. p. 44.
- ↑ Ib. p. 47.
- ↑ As to this Dyke see Archæologia, vol. XXIX. p. 13.
- ↑ Arch Camb. third series, iii. 204.
- ↑ Matth. Par. Vit. Offæ II. 975.
- ↑ Lappenberg, Anglo-Sax. Hist. i. 221.
- ↑ Langhorne's Chronicon, p. 292.
- ↑ H. Lhuyd, Brit. Descr. pp. 41, 47.
- ↑ Anc. L. and I. of Wales, i. 183.
- ↑ Lappenberg, Anglo-Sax. Hist. i. 240.
- ↑ Kemble's Sax. in Eng. i. 47.
- ↑ Speed's Theatre of Gt. Britain, Radnorshire; Bever's Hist. is not printed.
- ↑ Necham, according to Camden (Monmouthshire), says, "Inde vagos Vaga Cambrenses, hinc respicit Anglos"
- ↑ Will. Malmsb. Gest. Reg. Angl. (Eng. Hist. Soc. edit) ii. § 134, p 214.
- ↑ Lapp Anglo-Sax. Hist. ii. 252.
- ↑ Joan. Sarisbur. Policraticon, (1639), vi. 6, 345.
- ↑ The relation of Wales to the Crown of England is treated of by Lord Hale in his "Preparatory Notes touching the Rights of the Crown."—Hale's MSS. Addit. in Lincoln's Inn Library, No 9, c. iii. pp. 27—45 (not printed).
- ↑ Kemble's Sax. in Eng. i. 46, note.
- ↑ Arch. Camb. first series, iii. 332.
- ↑ Coke, Entr. Quo Warranto 9, f. 549 b.
- ↑ Ibid. 3, f. 534.
- ↑ "Government of Wales," in Hist. of Ludlow, by R. H. C , p. 109.
- ↑ Ibid. p. 99.
- ↑ Arch. Camb. first series, iv. 141.
- ↑ Charter of the Welch.—John, by the grace of God, &c. to our beloved and faithful Wennowen of Kevelioch, for his homage and service, all lands, &c. as well in North Wales as in South Wales and Powis, as well acquired as to be acquired over our enemies, &c. to hold of us and our heirs, &c. Dated at Poitiers, 4 Dec. 1 John (A.D. 1199).—Rot. Chart. 63.
- ↑ Charter of William de Braose.—John, by the grace of God, &c. to William de Braose and his heirs, all lands, &c. which he hath acquired and which hereafter he shall be able to acquire over our enemies the Welch, to hold of us and our heirs, save Kardigan with its dependencies, which we retain. Dated at Caen, 3 June, 2 John (A.D. 1200).—Rot. Chart. 66 b.
- ↑ Coke, 4 Inst. c. xlvii. p. 240, note.
- ↑ Yr. Bk. 19 H. VI. 12; Harg. L. T. 399; Coke, 4 Inst. c. xlii. p. 223.
- ↑ Coke, Entr. Quo Warr. 9, f. 549 b.
- ↑ Govt. of Wales, p. 107.
- ↑ First Report (1820), div. viii. vol. i. p. 191.
- ↑ Courthope's Historic Peerage.
- ↑ Dodridge's Hist. of Wales.
- ↑ Govt. of Wales, p. 117.
- ↑ Palgrave's Ang.-Sax. Period, i. 116.
- ↑ The statute, as printed in the Record of Caernarvon (1828), and thence adopted in the Ancient Laws and Institutes of Wales (1841), differs in some respects from that in the Statutes of the Realm (1812). There is some confusion between the abbreviations of comitatus and commotus, which words also appear to bear each a two-fold meaning, viz. the county or county court, and the commote or commote court.
- ↑ Ryl. Plac. Parl. pp. 44, 74, 418. Rot. Part. pp. 37, 70, 379.
- ↑ 27 Hen. VIII. c. 26, s. 16.
- ↑ 33 Hen. VIII. c. 13, ss. 3, 4.
- ↑ 27 Hen. VIII. c. 26, s. 20.
- ↑ 27 Hen. VIII. c. 5.
- ↑ Coke, 4 Inst. c. xlviii.
- ↑ 21 Hen. VIII. c. 6; 23 Hen. VIII. c. 5; 27 Hen. VIII. cc. 14, 24.
- ↑ 26 Hen. VIII. cc. 4, 5, 6, 12; 27 Hen. VIII. cc. 5, 7.
- ↑ 27 Hen VIII. c. 24.
- ↑ 27 Hen. VIII. c. 26.
- ↑ H. Lhuyd, Brit. Descr. Fragment. (1568); "Breviary of Britain" (being a translation of the above) (pr. 1573); Price's Descr. of Wales, augm. by H. L., pr. in Wynne's Hist. of Wales (1774); Camden's Britannia (1586); Churchyard's Worthiness of Wales (1587); Dodridge's Hist. of Wales (1603, pr. 1630); H. of Commons' Journals, ii. 57 (1640).
- ↑ State Papers, Hen. VIII. i. p. 454, part ii. let. xliii. Roland Lee to Cromwell, 12 March, 1536.
- ↑ Speed's Theatre of Great Britain, 1611.
- ↑ 28 Hen. VIII. cc. 3, 6; 31 Hen. VIII. cc. 7, 11; 32 Hen. VIII. cc. 4, 13, 27, 37; 33 Hen. VIII. c. 17; 34 and 35 Hen. VIII. c. 26.
- ↑ 34 and 35 Hen. VIII. c. 26.
- ↑ 27 Hen. VIII. c. 26. a. 20.
- ↑ 27 Hen. VIII. c. 26, s. 20.
- ↑ Coke, 4 Inst. c. xlviii. p. 242.
- ↑ 27 Hen. VIII. c. 26.
- ↑ 34 and 35 Hen. VIII. c. 26. s. 3.
- ↑ Bacon's Law Tracts.
- ↑ 4 Inst. c. xlviii. p. 242.
- ↑ H. of C. Journals, ii. 57, 23 Dec. 1640, 16 Car.
- ↑ 1 W. and M. c. 27.
- ↑ 11 Geo. IV. and 1 Will. IV. c. 70.
- ↑ 34 and 35 Hen. VIII. c. 26, s. 1.
- ↑ Camden's Britannia, edit. 1789, vol. i. p. cxxxii.