INTRODUCTION
That portion of the Dominions of the British Empire which retains, in modern language, the name of Wales, preserved a separate political existence for over a thousand years, until in the reign of Henry the Eighth it became a part of the Realm of England, and the statutory incorporation which then took place has not altogether destroyed its separate character even until this day.
The three names "England," "Wales," and "Scotland" may be classed as geographical expressions. They are political names of parts of Britain, which have had varying meanings at different times, as the parts of the island to which they were applied have changed in area. The name "England," first used about the end of the tenth century, was applied to those parts which on the consolidation of the Heptarchy came and remained under the direct rule of the King of the English. The distinction between the English and the Welsh was not only to be found then, as now, in their language, race, and ancestry, but also in the political independence maintained by the smaller country long after the Anglo-Saxon states became consolidated in the Kingdom of England.
The time had been when a natural boundary between the two countries and peoples was approximately marked by the courses of the rivers Severn and Dee, but, owing to the superiority in military skill of the Anglo-Saxon races, the Welsh people were gradually driven back. The earthwork known as Offa's Dyke, constructed in order to keep the Welsh out of the land acquired by the invaders, clearly indicates that the Welsh, though beaten, were not subdued. This entrenchment was an artificial boundary made by Offa in 779 A.D., which extended from the estuary of the Dee to the mouth of the river Wye. The debatable and fiercely contested land on both sides of this boundary was then, and subsequently, designated the "Marches of Mercia (England and Wales)"; it was a large district, difficult of access, subject to little control, the dwelling-place of lawless and predatory bands, who plundered, disturbed, and ravaged the adjoining territories.
A.D. 940.—The laws and customs which were observed by the Welsh, until the time of Edward the First, are to be found in the ancient Laws and Institutes collected, codified, and promulgated by Howel the Good in A.D. 940. Caradog of Llancarvan states that "Howel Dda constituted and gave lawes to be kept through his dominions which were used in Wales till such time as the inhabitants received the lawes of England in the time of Edward the first, and in some places long after." A remarkable gathering of Welsh representatives, consisting of clergy, chieftains, and delegates from every commote in Wales, was convened by Howel at Ty Gwyn (Whitland in Caermarthenshire), to examine the customs and ancient institutions of Wales. The duty imposed upon these representatives was that of framing wholesome laws on the basis of the ancient national laws, and of promulgating a code which bears witness to the care and perspicuity of its framers and to the nature of the national customs of the Welsh people. From this code, we find existing at that period three great divisions of Wales, namely, (1) Gwynedd, including the greater part of what is now known as North Wales, with its capital at Aberffraw; (2) Powys, roughly speaking Mid Wales, with its capital at Shrewsbury (Pengwern); and (3) Deheubarth, or Southern Wales, with its capital at Dynevor (near Llandilo). For our purpose, it is unnecessary to examine this collection of Welsh laws, or to determine whether this definite organisation of Wales was permanent or not. The authoritative edition is that published by the Record Commissioners in 1841, edited by Aneurin Owen, and intituled "Ancient Laws and Institutes of Wales: comprising laws supposed to be enacted by Howel the Good, modified by subsequent regulations under the native princes prior to the conquest by Edward the First; and anomalous laws consisting principally of institutions which by the Statute of Rhuddlan were admitted to continue in force." This collection clearly shows that the Welsh people held most tenaciously to their own laws and customs and to their national independence. They would submit neither to the arms nor to the laws of their persistent invaders, and this spirit continued to distinguish the nation for centuries afterwards. The laws and customs collected and promulgated by Howel Dda denote a high standard of legal proficiency, containing, it is true, many barbarisms, but comparing not unfavourably with the contemporary laws of the English; and it is remarkable that there were few alterations to be made when English statesmen began to devise amendments to them.
The systematic subjugation of Wales was attempted by William the Conqueror, when he organized a chain of great Earldoms settled along the border lands and in South Wales. This territory was divided into Lordships Marchers, some of them having originated in the submission of their Welsh owners, who had anticipated the success of the Norman power, but the greater part of these Baronies Marchers was acquired by conquest. Royal licences to make war upon the Welsh were granted by the Norman Kings to their vassals for services rendered, upon the usual conditions of feudal tenure, and in the Lordships so acquired the system of jurisprudence was dependent upon the will of the Lords, who exercised supreme power. Through these districts, during the Norman period, castles of great strength were built and garrisoned for military purposes and for offensive and defensive operations of war. Towns grew up around these strongholds, English settlement was encouraged, and municipal charters were granted with distinctive provisions marking the different laws and privileges applicable to the new settlers and the Welsh inhabitants. Within these districts, the Norman-English laws were, for the most part, administered, but in many of the territories the Welsh were allowed to enjoy their ancient customs when the same did not conflict with the interests of their invaders.
The following charter, granted by King John, shows the policy pursued by the English Kings:—
Charter of William de Braose.
"John, by the Grace of God, etc. to William de Braose, and his heirs all lands etc. which he hath acquired, and which hereafter he shall be able to acquire over our enemies the Welsh to hold of us and our heirs save Kardigan and its dependencies which we retain. Dated at Caen 3rd June, 2 John a.d. 1200 (Rot. Chart.)."
And we find that Henry the First gave permission to Gilbert Fitzrichard de Clare to enter into Cardigan and Pembrokeshire in the following terms, "Thou wert continually seeking for a portion of the lands of the Britons from me, I will now give thee the land of Cadwgan son of Bleddyn: go and now possess it."
This system of legalised pillage and authorized plunder ceased when Edward the First obtained the submission of Wales to the English power, for after the Statute of Rhuddlan no new Lordships Marchers were, or could be, created.
The Lords Marchers had greater power in the Marches of Wales than the feudal lords possessed in England, for the control of the English Monarchs was not so strongly maintained over them. The result was that the "custom of the march" developed, and they became semi-independent magnates who were allowed to raise and maintain armies of their own and to make private war at will.
But throughout the Norman period the greater part of the Principality remained in the hands of Welsh princes, who ruled, according to their own customs and laws, over the territories which had not been seized by the marauding Barons of the Marches. Within these lands, the nominal political superiority of England was fitfully accepted, but practical independence was enjoyed by the Welsh chieftains in the internal government of their own provinces, and there the old national laws and customs were of full force and effect.
Magna Charta and Wales.
A.D. 1215.—In the great Charter of Liberties, sealed by King John on June 15, 1215, we find the first mention of Wales in the constitutional documents of our Realm. Although not a parliamentary statute, it has been printed at the commencement of the English Statutes, and requires notice inasmuch as the whole of the constitutional history of England has been described as being a commentary on this Charter. This Great Charter is the commencement of the formal history of English constitutional liberty. It secured from the astute sovereign who was forced to submit to it, a definite recognition of the old constitutional rights which he had constantly violated, and a pledge that he would not further evade them. In three of the clauses of this Charter, we find the evidence of the power and influence of Llywelyn the Great, who reigned in Wales from 1194 to 1240, the most important figure in Welsh mediæval history. He seized his opportunity when England was divided and weakened, and stemmed the English tide of conquest by destroying some of the most important of the Norman-English castles in Wales. He was, although married to King John's daughter, allied to the English Barons in their struggle with that sovereign, with the result that three clauses, numbered 56, 57, and 58 of the Great Charter, describe, protect, and preserve the privileges of the Welsh King, and restored to him the hostages and charters which had been obtained by the English sovereign as security for peace.
The Legislation of EDWARD the First. The Statutum Walliæ.
In 1255, the sole ruler of Wales was Llywelyn ap Gruffydd, and from this year until 1282 a bitter and prolonged struggle took place between him and the English as to the retention of sovereignty in Wales. Edward (afterwards Edward the First) in 1254, had been granted by his father, Henry the Third, the Earldom of Chester, and came to Gwynedd to view his lands and castles. By the Treaty of Shrewsbury made on September 25, 1267, Llywelyn was recognized Prince of Wales, and overlord of all the Welsh magnates, excepting Meredith ap Rees, the representative of the old line of princes of South Wales. The Perfeddwlad or Middle Country, comprising the four cantrevs of Rhos, Dyffryn Clwyd, Tegeingl and Rhuvoniog, forming the district lying between Chester and the Conway, Edward's old patrimony, were ceded to Llywelyn, and although the latter promised to surrender many of his conquests, he was allowed to remain in possession of great tracts of land in Mid and South Wales. This treaty did not bring lasting peace to Wales and the Marches. In 1276, Eleanor de Montfort, betrothed to Llywelyn, while on her way from France to be married to him, was captured and detained as a prisoner by Edward the First. Llywelyn could only obtain her liberation by signing articles in which he agreed to do homage to Edward and to cede to him the Perfeddwlad. By these articles, the ancient rights of the Welsh people in this district were preserved, but when Edward took possession of it, he began by converting it into shire-ground and introducing Norman-English laws instead of the Welsh laws and customs. Edward at the same time re-established the shire organizations of Caermarthen and Cardigan. The WELSH people under Llywelyn broke out again into rebellion, and Llywelyn died in battle on December 11, 1282, at Pont Orewyn, near Builth. On Llywelyn's death, his possessions passed to the English King, and two years afterwards, the important Statutum Walliæ—the Statute of Wales—was enacted at Rhuddlan by Edward the First, on Sunday in Mid-Lent[1], 1284. It is the first great Act for the Principality, settling the civil and legal administration of Wales for nearly three hundred years.
A.D. 1275.—In the year 1275, the Statute of Westminster the First (3 Edward i, c. 17) was significant of the growing power of the central administration, and the new policy to be pursued towards the Lordship Marchers. Theretofore there was no jurisdiction in the English Courts over Wales. The maxim was, Breve regis non currit in Walliam: "the King's Writ runneth not into Wales; and the Lords Marchers had regal powers within their Lordships; but, by the Statute of Westminster the First, it was provided that English law should be of effect within the courts and lands of the Marches of Wales.
A.D. 1284.—The Statute of Wales (12 Edward i, c. 1), was drafted upon the report of a Commission appointed by Edward before Llywelyn was finally subdued. The Commission (dated at Westminster, December 4, 1820) was issued to Thomas (Becke) Bishop of St. Davids, Reginald de Grey, and Walter de Hopton, appointing them to examine upon oath "unsuspected persons both Welsh and English," in order to obtain information respecting the laws and usages by which the Kings, his predecessors, had been accustomed to govern and order the Prince of Wales and the Welsh Barons of Wales and their peers and others their inferiors, and all particulars connected with such laws and usages. These Commissioners were commanded to appoint certain days and places for carrying on this inquiry, and to return and account to the King within three weeks of Easter. An order was also issued to all Justices, Sheriffs, Bailiffs, and other officers of the King in Wales, requiring them to cause to appear on the days appointed, all such witnesses as might be able to give information on the subject; and also requiring that they should attend upon, and render every assistance and advice to the said Commissioners, in order that all needful information might be obtained. This inquiry comprised fourteen interrogatories to be put to each of the witnesses. The Commissioners examined in all, 172 witnesses—that is, 19 in Chester; 53 in Rhuddlan; 36 in the White Monastery (probably Oswestry); 22 in Montgomery, and 42 in Llanbadarn Vawr. The interrogatories and the answers of the witnesses may be found in the appendix to Wotton's Leges Wallicæ. A translation is given in the paper on the "Historical Account of the Statute of Rhuddlan," by the Rev. Thomas Price (Carnhuanauc). The majority of the witnesses undoubtedly furnished evidence showing, that within the area of the Commissioners' jurisdiction, the English judicial system was replacing Welsh usages and laws. The evidence is, however, neither convincing nor satisfactory. Many of the witnesses, like William Launtelyn, Knight, on being sworn and diligently examined, said that they knew nothing. "The frequent profession of absolute ignorance and some rather evasive replies suggest that the witnesses were either carefully selected, or else under the influence of fear or motives of self-interest gave replies which they thought would be satisfactory to the English authorities. The survival of Welsh Customs, as to which there is ample testimony even as late as Tudor times, tends to confirm one's suspicions, but on the other hand the commission's questions dealt chiefly with procedure and the rights of barons and landed proprietors; and it may be urged that the super-session of Welsh law in regard to that part of the corpus juris was not inconsistent with the retention of Welsh usages in regard to other parts, or as to the holdings of land by inferior tenants in particular lordships."[2] The Commission extended only to a limited portion of Wales, viz., to the four Cantreds of Perfeddwlad, Iâl or Yale, Ystrad Alun (Mold), Montgomeryshire; Cardiganshire, part of Caermarthenshire and the Welsh Border from Chester to Bishop's Castle.
The Statutum Walliæ was not a parliamentary statute. It was the King's Charter "to all his subjects of his land of Snowdon, and of other his lands in Wales." It emanated throughout from his sole authority, and his own seal was affixed thereto. The absolute power of legislation which was assumed by Edward was that which belongs to the Crown after the conquest of an insurgent and independent country, but, although not the result of parliamentary deliberation, it was drawn up by the advice of the nobles of the Kingdom, and is included in the recognized Statutes of the Realm. It remained on the Statute book until it was repealed by the Statute Law Revision Act, 1887. It was "the most comprehensive code that any English legislator issued during the Middle Ages."[3]
The Statute of Wales is frequently referred to as the Statute of Rhuddlan, although there was another legislative Act, issued at the same time, by Edward, which is distinguished by the name of the Statute of Rothelan (12 Edward i). This was a royal ordinance, regulating the Exchequer, not requiring parliamentary authority.
The Statute of Wales commences with a preamble reciting what was conceived to be the political condition of the country at that time. It states that Wales, with its inhabitants, had hitherto been subject to the King by feudal right, but that Divine Providence, amongst other gifts, had "wholly and entirely transferred the land of Wales with its inhabitants" to the King's dominion. It was desired that the country should be governed with due order to the "honour and praise of God and of Holy Church and the advancement of justice." It was stated that the King having diligently heard, and fully understood "the laws and customs of those parts hitherto in use, had abolished some of them, allowed some, corrected some, and commanded certain others to be added thereto," and that the country was annexed and united unto the Crown of the Realm of England as a member of the same body.
The Statute provided that the Justice of Snowdon was to have the custody and government of the peace of the King in Snowdon, and the lands adjoining, and that he was to administer justice according to original writs of the King "and the laws and customs underwritten." Gwynedd and its appurtenances were divided into the three shires of Anglesey, Carnarvon, and Merioneth, and were collectively put under the Justice of Snowdon, whose seat was to be at Carnarvon, where Courts of Chancery and Exchequer for North Wales were to be established. The district forming the County of Flint was to be obedient likewise to the Justice of Chester. In South Wales the shires of Cardigan and Caermarthen were reorganized, and put under the jurisdiction of the Justice of West Wales, whose Chancery and Exchequer Courts were appointed to be at Caermarthen.
The officers under the existing English shire system, such as Sheriffs, Coroners, and Bailiffs, were introduced into Wales. County Courts summoned by the Sheriff, who was the special representative of the King, were to be held monthly in the newly formed counties to deal with criminal cases and civil causes. Felons and criminals were to be indicted at these courts by the four adjacent townships, whilst the kindred of a dead man (termed "the Welsherie"), and accused persons were to be detained until the next coming on circuit of the King's Justice.
Twice in the year, once after the Feast of St. Michael, and once after Easter, the Sheriff was to make his "tourn" in the several commotes, at which all freeholders, and all others holding lands and dwelling in that commote (except men of religion, clerks, and women) were to attend. The "commote" or "cymwd" was selected because it was the most ancient division of Cymric land. The "cantref" was a collection of "cymwds." The "cymwds" varied in size. There are several comparatively modern lists of these ancient divisions in existence, which show that they were well recognized in later times: they are mentioned in the laws of Howel Dda for administrative and legal purposes, and were doubtless in existence during all the mediaeval history of the Country.[4] At his "tourn" the Sheriff, by the oath of twelve of the most discreet and lawful freeholders, or more at his discretion, made inquiry as to certain matters duly specified in section 4 of the statute, principally offences of a criminal character.
The Sheriff was to inquire, inter alia "of Mascherers, that sell and buy stolen meat knowingly; of Whittawers, that is, those that whiten hides of oxen and horses, knowing the same to have been stolen, that they may not be known again; of Redubbers of stolen cloths, that turn them into a new shape and change the old one, as making a coat or surcoat of a cloak and the like; of them that shear sheep by night in the folds, and that slay them and any other beasts; of them that take and collect by night the ears of corn in autumn and carry them away; and of them that give lodgings to persons unknown for more than two nights, etc., etc."
All the men of the whole "commote" were sworn and required to make due presentment as to the capital and lesser offences arising within their district. In capital offences they were to inform the Sheriff secretly of the names of the offenders to prevent their escape, but this secrecy was not required in the lesser offences. This grand jury brought in their verdict or presentment, and the Sheriff proceeded, if necessary, to arrest the persons implicated.
The bailiffs of the "commotes" administered justice to parties in suits. One Coroner at least was elected in every commote. He was chosen in the full County Court, by royal writ, and took the oath of office before the Sheriff In cases of dangerous wounding and homicide the Coroner required the Sheriff or Bailiff of the Commote to summon all persons of twelve years and upwards of the town wherein the casualty happened, and of the four adjoining townships. The Coroners were to make inquiry as to all the facts surrounding the crime, secretly giving up the names of the accused in writing to the Sheriff or Bailiff of the Commote, who committed the alleged offenders to prison until the King's Court was held. The goods of the accused were seized and valued, and a record of the facts of the case was enrolled, after the inquest, to be placed before the Justice.
It was provided that when a thief, manslayer, or other malefactor, availed himself of the very ancient custom of privilege of sanctuary, that is, fled to obtain the protection afforded by the Church, the Coroner was to summon all the good and lawful men of his neighbourhood, and to cause the abjuration of the realm by the fugitive in the following manner. The felon was to be brought to the church door, a seaport was assigned for him by the Coroner, and then the felon abjured the realm. A time-allowance was given to him to reach the seaport, and he was to be set on his journey on the King's highway bearing in his hand a cross, being commanded to depart the realm as speedily as possible, turning neither to the right hand nor upon the left. This privilege entailed perpetual banishment into a foreign Christian country. His lands escheated; his chattels were forfeited; and if he came back he was outlawed.
Forms and precedents in full of the original writs to be used in actions at law, together with the letters patent to the King's Justices, are prescribed by the fifth section of the Statute; such as the writ of Novel disseisin (issued to the Sheriff at the request of the person disseised or dispossessed of land, commanding the Sheriff to summon a jury of twelve free and lawful men to decide whether the dispossession had been lawful and then to report to the Justice of Assize); also the writ of Mort d'ancester (giving authority to the Sheriff to summon a jury to determine whether the plaintiffs ancestor was seized or possessed of the lands in question at the day of his death, and if the plaintiff was the lawful heir). There are other writs set forth in the same section, after the model of the same writs in English Jurisprudence.
Actions for personal trespasses wherein the damages did not exceed forty shillings were pleaded before the Sheriff in the County Court; above that sum, before the Justice of Wales. Pleas of lands were not to be determined by wager of battle nor by the grand assize. The procedure is fully set out in the Statute. In trials of assize of Mort d'ancester, the claimant of the property could be resisted, if illegitimate, on the ground of bastardy, a fact which was inquired into by the Bishop of the place, who certified the result of his inquiry to the Chief Justice of Wales.
The Assizes were to be taken in the respective counties before the Justice twice, thrice, or four times yearly. Causes in actions relating to land, immovables, and movable property were to be tried before juries. There were to be formal pleadings before the case was tried, viz., documents in which the grounds of action and issues were clearly expressed. It was, however, specially enacted that any formal defect in these pleadings was not to fall within that hard rule which was the reproach of the Roman law at one time, and of the English law at a later period, viz., that a technical mistake vitiated the whole proceedings. He who failed in a syllable was not to fail in his cause.
Trespasses were punishable by fines, payment of damage, imprisonment, the trespasser being tried by his "country," that is, by his neighbours.
A woman's right to dowry had not been recognized in Wales until this Statute. It was then introduced, and a woman's dower was said to be twofold,—(a) where there was an assignment of the third part of the whole land belonging to the husband which was his during her coverture, and (b) when a son with his father's assent endowed his wife. The writ of reasonable dower was provided for cases under (a).
Trials relating to real property were always to be before a jury of good and lawful men of the neighbourhood, chosen by consent of the parties, and those relating to personal actions were to be according to the Welsh laws, as the people of Wales had been accustomed. Under the Welsh laws, in personal actions the evidence of witnesses was relied upon, but if no such evidence was procurable, then testimony by "purgation" was resorted to.
But it was expressly enacted that in criminal cases the English laws were to be followed and used.
The 13th section of the Statute of Wales regulates the very important question of the division of landed property at death. Herein Edward's policy of recognizing and perpetuating the ancient laws and customs of the Welsh is shown. The Welsh rule of law was that the inheritance, at the death of the head of the family, became equally divided among the male children—a custom which is termed "gavel-kind" in English law. It therefore differed from the general English custom of primogeniture. The Statute enacted that in Wales the inheritance was to be divided equally among the heirs male, as it was wont to be "from the time whereof the memory of man is not to the contrary." Two alterations in the Welsh law were made for (a) bastards were not to share with the lawful heirs or inherit, and (b) upon the failure of male heirs the inheritance, was to descend to females, "although this be contrary to the custom of Wales."
The Statute of Wales closed the purely Welsh period, and heralded the introduction of English institutions into the Principality. Although the new political organization came into effect at once, the new legal provisions of the Statute of Wales took a considerable time in ousting and superseding the ancient Welsh laws.
In the Peniarth MSS. there is a copy of the Statute in Welsh, from which it appears that Edward ordered that two copies in Latin and one copy in Welsh should be kept in every commote for reference.
It will be seen that this Statute, based upon an extensive inquiry into Welsh laws and customs, laid down definite, well-considered, and effective procedure. It is striking evidence of a desire to adapt the procedure of the English legal system—modified by pre-existing national customs—to the wants of the Welsh people as understood by Edward and his advisers. The minute directions given in this enactment for the holding of the county courts, are the best evidence of the powers of the English shire moots existing at the end of the thirteenth century,[5] and they show clearly the defining and organizing process which was so remarkably developed by lawyers who advised Edward the First in the government of England. "The England that saw the birth of English law, the England of Magna Charta, and the first parliaments, was a much governed and little England."[6] A great part of the statute was highly technical, but the main purport of it shows the King's attempt to introduce into Wales a system that would, and did in fact, only require expansion to bring it into harmony with the necessities of a separate nationality. For more than two centuries after this Statute came into force the Principality of Wales remained isolated from the operation of general political and legal reforms, being specially legislated for, separately administered, and except upon two occasions as is pointed out hereafter, unrepresented in the English Parliament.
In September, 1284, EDWARD commenced a royal progress through Wales to complete the administrative changes which he had instituted. Starting from Flint, with his principal officials, he passed through several districts, settling disputes, and establishing peace throughout the Principality. Finally he arrived in the lordship of Glamorgan, belonging to the Earl of Gloucester, who received the King as if he were a brother potentate. Edward did not again visit Wales until 1291, when he came to put an end to the overreaching pretensions of the Lords Marchers.
At the end of the thirteenth century Wales comprised a territory which was divided as follows:—
(1) Into Lordship Marchers, numbering about 140, held of the English Crown according to feudal right, by Welsh chiefs or Norman Lords. These Lordship Marchers existed not only on the borderland between Wales and England, but also in the interior parts of what is now the country of Wales.
(2) The "Principality," which consisted of the territories held by Llywelyn ab Gruffydd when conquered by Edward. The legal term for this land was Parcella Principalitatis Walliæ. It included the commotes organized under the Statute of Wales into the counties of Anglesea, Carnarvon, Merioneth, parts of Flintshire, Caermarthenshire, and Cardiganshire. Edward in 1280 had established a County Court at Caermarthen, and entered into possession of the counties of Cardigan and Caermarthen.
(3) The lordship of Glamorgan and the County palatine of Pembroke. The lowland portions of Glamorganshire constituted the Lordship of Glamorgan, the uplands being retained by Welsh chieftains, but the Lordship did not extend to the modern limits of the County. Pembrokeshire had been granted in 1138 to Gilbert de Clare and was "in ancient tyme a County Palatyne and noe part of the Principalitie of Wales,"[7] and these lordships "of which that of Glamorgan was the most complete, were something very like States, and the skill and strength of that mighty monarch, Edward the First, was called in to undermine the too great independence of lords of his own race."[8]
An excellent map of Wales and the March at this period is published with volume iii. of the "Political History of England," by Professor Tout. "The Lordships of the March were not directly influenced by Edward's legislation. They continued to hold their position as franchises until the reign of Henry the Eighth, and under Edward the Third were declared by statute to be no part of the principality, but directly subject to the English Crown. Yet the removal of the pressure of a Native principality profoundly affected these districts. The policy of definition made its mark even here. The liberties of such Marches were defined and circumscribed, and whilst scrupulously respected, were incapable of further extension. The vague jurisdictions of the Sheriffs of the border shires were cleared up. Gradually the Marcher lordships passed by lapse into the royal hands, and even from the beginning there were regions, such as Montgomery and Builth, which knew no Lord but the King. All this was, however, an indirect result of the Edwardian conquest. Strictly speaking, it was no conquest of Wales, but merely of the Principality, the ancient dominions of Llywelyn, to which most of the Crown lands in Wales were joined."[9]
As the Statute of Wales did not apply to the Lordship Marchers, law and justice was administered therein according to the laws and customs of each particular lordship by officers appointed by the lord. After that statute, the legal position of the Lords Marchers and their rights became a matter of grave import. The powers of the Welsh Princes had been abolished, and the custom of the March had to be settled. Between 1284 and 1291 many private wars occurred in Wales and the Marches, arising out of the conduct of the Lords Marchers. Edward the First returned to suppress this lawlessness, and the matter was brought to a head by the remarkable dispute between Gilbert, Earl of Gloucester, who was the ruler of the Lordship of Glamorgan, and the Earl of Hereford, in whose private jurisdiction the lands now forming the County of Brecknock were situate. Edward interfered, and in 1290 formally called on the Earls by proclamation to put an end to their hostilities. He summoned the Lords Marchers in order to determine the question whether they were to be obedient to the Crown or not. A court was convened at Llanthew, near Brecon, in 1291, at which Hereford appeared, but Gloucester did not. The King was at Amesbury in Wiltshire at this time, and hearing of Gloucester's action, he summoned a fresh court at Abergavenny for Michaelmas, 1291, at which both nobles appeared. There Edward presided, and the "scene when the day came, must have been impressive; one of our strongest and most law loving Kings was in full court, sitting in Judgment on the proudest of the old Norman aristocracy, on the deep and difficult question of the royal prerogative to override custom." Both Earls were imprisoned, their estates were confiscated, and by this trial Edward the First crushed the privileges of the Lords Marchers, and curbed their independent and tyrannical jurisdictions during his time. In the reign of Edward the Second, when the Crown was in the hands of a weaker King, the Lords Marchers resumed their old privileges, which were asserted and continued until the Tudor period. For a detailed and valuable account of Wales and the private wars in the Marcher Lordships, the work of Mr. J. E. Morris on the "Welsh Wars of King Edward the First" should be consulted.
The Ordinances of Edward the Second. 1315-6.
A.D. 1315-6.—After the Statutum Walliæ there is no legislation relating to Wales until the reign of Edward the Second (who was the first Prince of Wales), when two Ordinances were promulgated by that King which are of importance and are printed with the statutes hereafter. They were Ordinances concerning the customs of West Wales, South Wales, and North Wales, and are to be found in Rymer's Fœdera.
An Ordinance differed from a Statute. A Statute was enacted by the King in Parliament and became a permanent addition to the law. An Ordinance was an executive act issued by the King in council, usually of a tentative and temporary nature; it could be recalled by the King; it was not enrolled in the statute book, although it might be converted into a statute. These Ordinances of Edward the Second altered and amended certain provisions of the Statutum Walliæ, and dealt with various grievances of the different parts of Wales. It will be noticed that Edward the Second declares therein that he was born in Wales, a statement of value in considering the disputed question as to the place of his birth. On reading these Ordinances carefully it will be seen that there are points of difference between them. Both deal with the custom of Amobragium, but nothing is said in the North Wales Ordinance of Westva, Blodwyte, complaints of felonies and torts, and the superabundance of bailiffs.
In dealing with Amobragium, or "Amobr" (the fee payable to the Lord by his tenant on the marriage of the latter's daughter), the Ordinances set up a limit of time (within a year) when the fine could be enacted, and declared also that it should be levied only in those cases in which under the Princes of Wales it could be levied. These fines were farmed out to "amoberers," who greatly oppressed and impoverished the people. Westva was the "gwestva" of the Welsh laws, a fixed payment of food in lieu of the entertainment with which in earlier times the free tenants were obliged to supply their lord. Bloodwyte was the fine inflicted for causing wounds or bloodshed. Under the Statute of Wales the Sheriff was obliged to diligently inquire concerning bloodshed by the oath of a jury, but by the ordinance of West Wales and South Wales the jurisdiction of the Kings's Bailifs was enlarged and they were directed to ascertain "by view" as to this. In the West Wales and South Wales Ordinance we find that where complaints concerning contracts and trespass between Englishmen and Welshmen were to be decided by inquest, one half of the inquest was to be composed of Englishmen and the other half of Welshmen worthy of trust The North Wales Ordinance had no provision to this effect, but it is probable that this was also the general practice throughout North Wales and required no such provision. Judge David Lewis in dealing with these Ordinances says[10] "that an exhaustive legal commentary on the ordinances is impossible with the materials available at present. The period between the Statutum Wallliæ and the incorporation Statute of Henry the Eighth is a dark period in Welsh History, awaiting the examination of much material lying in the Records of the time. It may be possible after such an examination to answer the questions how the mixed Jury of Welshmen and Englishmen worked in practice. Did the English judges who came round take to it kindly? Were the juries addressed in both Welsh and English? How was this managed when the Judge knew no Welsh, and what part did the Latimer (Lladmerydd=Interpreter) play?"
The North Wales Ordinance related to freemen and religious persons and removed the burdens which were placed on the former. The customary taxes due from villeins and strangers were to be taken as they were levied by the former Princes of Wales, and freemen were not to be taxed unless the ordinary revenue was insufficient. The sons of freeman who wished to take holy orders had not been allowed to do so without obtaining a licence. Under the Ordinance of North Wales, where a freeman had two sons, one of them was allowed to take orders without a licence from the King or Justiciar. Freemen were allowed to sell and give lands to other free Welshmen, but not to prelates, religious persons, secular officers, who, under pretence of their office, had been able to coerce the people to make such sales or gifts.
A.D. 1353-4—In the reign of Edward the Third the Ordinances of the Staple (27 Edward 3, stat. 2. c. 18), prohibiting English merchants from exporting wool under pain of death, were promulgated (1353), and provision was made therein that the men of Ireland and Wales might take their wools and leathers for sale to the staple markets of England.
In 1353, certain statues were made at Westminster, the first of which confirmed Magna Charta and all statutes before made and used. The Second (28 Edward 3 c. 2) enacted that all the Lords Marchers of Wales should be perpetually attending and annexed to the Crown of England and not to the Principality of Wales, "in whose hands soever the same principality be or hereafter should come." Edward the third had two objects in securing this measure—firstly, to convince his arrogant nobles that he was entitled to their complete allegiance, and, secondly, to limit the power or possible pretensions of any Prince of Wales who might be heir to the throne.
The Coercion Period.
During the fourteenth century the Welsh people lived under wretched political conditions. The policy of English statesmen aimed at the extirpation of every vestige of Welsh patriotism and nationality. English officials, traders, and settlers came to the country under the protection of the powerful castles, which, originally established by the Norman Kings, were rebuilt and strengthened to keep down the native Welsh. Oppression, violence, and tyranny followed in the train of these settlers. There are abundant signs during this period that the Welsh people resented the new officials and English ways, and that they struggled desperately and continuously against the dominant race. In the Lordships Marchers the stern, ruthless, and unjust rule of the over-lords provoked the Welsh to several abortive insurrections. Great abuses existed owing to the harsh and severe measures adopted by the new officials, and keen and bitter struggles ensued.
In 1400, the seething discontent of the Welsh broke forth under Owen Glyndwr's leadership. He was the last great Welsh military leader. His mysterious personality and soldierlike qualities produced a stimulating effect upon his despondent fellow-countrymen. At first an ubiquitous guerilla leader, he became subsequently the head of the most important revolt of the Welsh against the harsh rule of their conquerors. Welsh students from the universities of England, Welsh labourers working in England, Welsh soldiers who had served in France as mercenaries, flocked to his standard, and for fifteen years Glyndwr defied and successfully resisted the English power. He attacked the fortified castles of the rulers, and the greater part at one time or another fell into his hands. His daring, his magnetic and mysterious personality, and his rapid and deadly strokes at the official rulers made him feared. In 1404, he summoned Welsh parliaments to Dolgelly and Machynlleth. His aim was the independence of the Welsh Church and the freedom of his country. The establishment of two universities, one in North Wales, the other in South Wales, was projected by him.[11] He became an ally of the King of France and of Hotspur, and generally instilled dread into the English authorities. Under these circumstances it is not surprising to find legislative measures of a repressive character passed by the English Parliament.
A.D. 1400-1401.—The general character of the Acts relating to Wales and Welshmen, from 1400 until the accession of the Tudor dynasty, is that they were coercion measures, designed for the purpose of crushing the national spirit of the Welsh people. Six coercion Acts were passed in 1400-1401. They laid down that no Welshmen, "wholly born in Wales" could purchase lands or tenements within England nor within the Boroughs or English towns of Wales. A Welshman could not obtain the privileges of a citizen or burgess in any city or borough or merchant town; could not become a municipal officer, and was forbidden to carry armour in any city or town on pain of imprisonment. Exemption from these statutes was often granted to certain Welshmen as a special favour. In consequence of the complaint that "the people of Wales—sometime by day, and sometime by night"—distrained and seized upon the cattle and goods of their English neighbours in counties adjoining the Marches of Wales, it was enacted that upon failure of redress the English were permitted to arrest all persons with their goods and chattels coming out of Wales and to retain them until full satisfaction was made to the complaining parties. If a Welshman committed a felony in England, and repaired to Wales, the English officials in Wales were directed to execute him, upon a certificate given by the King's Justice. The Lords Marchers were to keep "sufficient stuffing and ward" in their castles in Wales in case of riots. No Englishman could be convicted at the suit of any Welshman in Wales, except by the judgment of English justices, or by the judgment of Englishmen resident in the Principality.
A.D. 1402.—In 1402, nine further coercion Acts were passed. One established that Englishmen were not to be convicted by Welshmen in Wales. Another, in order "to eschew many diseases and mischiefs which have happened before this time in the Land of Wales," ordained that "no waster, rhymer, minstrel nor vagabond be in any wise sustained in the land of Wales to make commorthies or gathering upon the people there." This was probably directed against the bards who were engaged by Owen Glyndwr in rousing the martial spirit of the Welsh, and against the "gwestwyr" or purveyancers employed also by him to collect money and provisions {cymortha) for the insurrection. Another Act forbade "congregations and councils," unless they were for an evident and necessary cause, or were held by licence of the chief officials of the Lordships. Welshmen were not to carry arms without special licence; no food or armour was to be sent into Wales and an English Constable was appointed to prevent and seize such supplies; no Welshmen, unless he were a Bishop or a Temporal Lord, could possess a castle or defend his house. No Welshman could be made Justice, Chamberlain, Chancellor, Treasurer, Sheriff, Steward, Constable of Castle, Escheator, Coroner, Chief Forester, Keeper of the Records, or Lieutenant in any part of Wales or of the Council of any English Lord, except Bishops in Wales. For the more sufficient custody of the "Land of Wales" all castles and walled towns were to be kept by Englishmen, and it was ordained that an Englishman married to any Welshwoman of the amity or alliance of "Owain ab Glyndwr, traitor to our Sovereign Lord"—or to any other Welshwoman—could not be put into office in Wales or its Marches.
A.D. 1407.—In 1407, two statutes were passed concerning felonies and robberies in Wales, after complaints had been made to the King by the Commons, at a parliament held at Gloucester, on October 20th of that year.
George Owen of Henllys says that: "By this it may be seen that those cruel Laws of Henry the fourth proceeded of malice against the whole Nation, for he made no such Laws against the rest of His Subjects of France who Revolted and Rebelled against him neither did he ever attempt to establish any Law for the good and quiet government of Wales or for the Abolishing any Cruel or Inconvenience which he found Grievous. But all his Laws were general Scourges and punishments against the whole People of the Country of Wales being then his Subjects and his Son Prince of Wales. We in England to this Day have not made the like against the Spaniards or any other Capital Enemies to this Realm."[12]
A.D. 1413-4.—In the reign of Henry the Fifth two repressive statutes became law: the first, in 1413 (1 Henry 5, c. 6), provided that no actions should be brought by Welshmen in respect of injuries sustained by them during the rebellion, except upon pain of paying treble damages, suffering imprisonment for two years, and making fine and ransom before being delivered out of prison; the second, in 1414 (2 Henry 5, c. 5), gave power to Justices of Peace within certain Counties of England to inquire into and determine charges against Welshmen who had committed offences "with force and arms in the manner of war, sometimes by day and sometimes by night," in the bordering English counties.
A.D. 1425-1429.—In 1425 and 1429 two Acts were passed giving powers of amendment in records of the Courts to Justices in certain cases, but it provided in both Acts that they were not to extend to records and processes in Wales.
A.D. 1430.—In 1430, a personal statute confirmed all the previous judgments and processes against Owen Glyndwr (or Glendwrdy) and those who were his heirs or of his blood, on account of the "horribility of his so many treasons."
A.D. 1441-2.—Under Henry the Sixth (by 20 Henry 6, c. 3) Welshmen were to be adjudged guilty of high treason for committing offences that had not been effectually prevented by the preceding penal acts; and (by 20 Henry 6, c. 7) foreign merchandise, coming to England through Wales without paying customs duty, was to be forfeited and the offending party was to be tried in the county next adjoining in England.
A.D. 1444-5,— In 1444, an Act (23 Henry 6, c. 4) against Welshmen, who were indicted for treasons and felonies, was passed, alleging that outlawed persons of Wales and the Marches came to slay, burn, rob, and do other offences in the County of Hereford; and directing that a hue and cry was to be raised against them by the officers of that County. In this Act it is also alleged that persons living in Wales and the Marches, so indicted and outlawed, came into the said County, to cities and burghs, to fairs and markets, sometimes by night, to there sell and buy merchandize and "tarry 2, 3, 4 days or more at their will and after return into their countries without execution of the law made upon them by the Sheriff of the said County." Fines were to be inflicted upon persons conversant with the hue and cry who did not assist in the arrest of such outlaws.
In the same year we find (see Rot. Parl., vol. v. pp. 104, 155) the English living in the English towns in Wales earnestly petitioning that the previous legislation, excluding Welshmen from bearing office in Wales, should be kept strictly in force.
A.D, 1446.—In 1446, all statutes against Welshmen were confirmed, and grants of privileges to welshmen in North Wales were made void.
A.D. 1448-9.—In 1448 (by 27 Henry 6, c. 4), the legislation of 1441 concerning "Welshmen who take away Englishmen" was extended until the next Parliament, and in 1449, by 28 Henry 6, c. 4, it was made a felony for persons in Wales and certain other districts to take away men and goods under colour of distress. This was to prevent the great assemblies of persons, riots, mayhems, and murders which were occasioned by such actions, and was not to prevent distresses which were lawful by the common law of England.
Towards the end of the fifteenth century, Wales and the Marches could not accurately be described as a peaceful country, for according to Sir John Wynn in his history of the Gwydr family, "in those dayes in that wide worlde every man stood upon his guard and went not abroad but in sort and soe armed, as if he went to the field to encountre with his enemies." Hallam says that the Welsh frontier was constantly almost in a state of war, which a very little good sense and benevolence would have easily prevented, by admitting the Welsh people to partake in equal privileges with their fellow subjects. Instead of this, the mischief was aggravated by granting legal reprisals upon Welshmen.[13]
The internecine strife between the various Lordship Marchers, the privileges of the Marcher Lords, their oppression of the Welsh people, their tyrannical administration of justice in their Courts, and the hostility of the Welsh people to English official rule, were the chief causes of this deplorable state of affairs. A strong central government was required, and this became possible in the reign of Henry the Seventh, to whom the powers of the Marcher Lordships had passed through the death of Richard the Third. All the estates of the Earldom of March had become forfeited to the Crown, and in 1488, an Act relating to the Crown Lands provided that in future all grants in the Marches were to be made under the great seal of England.
With the accession of the Tudor dynasty the coercion period passed away. Henry the Seventh (Harry ap Tudor) was a Welshman. Sir Rhys ap Thomas, a Welshman, was largely instrumental in placing him on the throne. Henceforth, flattered by the knowledge that a King, proud of his Welsh ancestry, was ruler of Great Britain; treated with a sympathy they had never previously experienced; and judiciously managed by statesmanlike legislation based upon the concession of equal rights and full privileges, the people of the Principality and Dominion of Wales entered upon a more peaceful era.
The Tudor Period.
A.D. 1495.—During the twenty-four years of the reign of Henry the Seventh, the only Act that had special reference to Wales was passed in 1495. It is a private Act (11 Henry 7, c. 33). It made void divers leases and offices "within the Principality of South Wales, North Wales, and in the County Palatine of Chester and Flint and in divers other Castles, Manors, Lordships, Lands and Tenements in the Marches of Wales, and in the Counties of Hereford, and Salop, parcels of the Earldom of March." This was done because "much less rent was reserved to the King and Prince of Wales than might be reasonably required," In this Act, there are many provisions made in favour of certain officials such as the "Porter of Beeston Castle; the Master Forester of Snowdon Forest; Sir Rhys ap Thomas, the Chamberlain of South Wales and Captain of the Castle of Aberystwyth," &c., &c.
It was during the reign of the great Tudor monarch, Henry the Eighth, that the most important statutes relating to Wales were passed. The strong personal character of that King, the importance of his initiative, his extraordinary power of carrying the nation with him, and his paternal but despotic policy, thinly disguised under constitutional reforms, are seen throughout the provisions of the many Acts relating to Wales passed by his subservient Parliaments.
In this reign, the abuses of clerical privileges were vigorously attacked by Parliament. In 1515, a Bill was introduced to limit "benefit of clergy." In the same year a petition was presented to the Crown, complaining that clergymen declined to bury their parishioners unless they were rewarded by the most precious jewel, suit of clothes, or other possession of the deceased person; and praying that every incumbent should be compelled to bury the dead or to administer the sacrament to the sick upon penalty of £40.[14] Nothing was done in answer to the petition until 1529, when a Committee was appointed to draft a Bill dealing with these mortuary fees.
Mortuary fees were one of the "enormities of the clergy" which were highly oppressive and irritating. The clergy exacted mortuary dues not only from the fathers of families, but from widows, children, and servants. Poor men were driven by the curates to sell their goods in time of sickness "if there were such goods as were like to be their mortuaries." If a man died in one parish and had a household in another, mortuary fees would be claimed by the clergy in both places, and no religious burial would take place until they were paid. Mortuaries were demanded in many places where they had been previously unknown, and were "taken in such a manner that it made the people to think that the curates loved their mortuaries better than their lives."
A.D. 1529.—The Bill went through the House of Commons; but met with great opposition in the House of Lords from the Bishops. "My lords," said the Bishop of Rochester, in the Upper House, "you see daily what Bills come hither from the common house and all is to the destruction of the Church." Serious differences arose between the Lords and Commons as to the passing of the Bill, and it was only after the interposition of the King that the Act (21 Henry 8, c. 6) was reluctantly passed by the peers. Under its provisions, no mortuary was to be taken of any person who should have less than ten marks in effects, nor except where the payment had been usual, nor in more places than one. No mortuary fees were to be taken for children and femes covert. By the sections relating to Wales, no mortuaries were to be there demanded except where they had been accustomed, and in those parts they were to be taken as specified in the Act, but it was provided that the Bishops of Bangor, Llandaff, St. Asaph, and St. Davids were to take such mortuary fees of the priests within their dioceses and jurisdictions as heretofore they had been accustomed, "Mortuaries were thus shorn of their luxuriance; when effects were small, no mortuary should be required; when large, the clergy should content themselves with a modest share. No velvet cloaks should be stripped any more from a rector's grasp; no shameful battles with apparitors should disturb any more the recent rest of the dead. Such sums as the law would permit should be paid thenceforward in the form of decent burial fees for householders dying in their own parishes, and there the exactions should terminate."[15]
It was not until 1713 (by 13 Anne, c 6) that these special privileges were taken away from the Welsh Bishops. They were then abolished because the demand for and payment of the same impoverished the clergy, and lessened the small provision which the Welsh clergy generally were able to make for the support of their families. This abolition was accompanied by compensation to the Welsh Bishops. The Bishops of St. Asaph and Bangor and their successors were respectively to be entitled to the profits and advantages of the first rectory which should become void after June 24, 1714. To the Bishopric of Llandaff, the Treasurership, with the prebend belonging thereto, was to be annexed and united for ever; and to the Bishopric of St. Davids, the prebend of Llangammarch, with all its profits and benefits, passed as compensation.
A.D. 1534—In 1534, an Act (26 Henry 8, c. 4) was passed designed to prevent the undue resort to "jurors in Wales, by the friends and kinsmen of offenders on trial for felonies and murders whereby the jurors were openly and notoriously suborned to acquit the accused." It was therein enacted that a bailiff should be sworn for the true and diligent keeping of the said jurors; and that he, under the Justiciar's direction, "should not give the jurors any bread, drink or meat, fire or light, and should not suffer them to speak to any person nor speak to them himself, except to demand of them their verdict." If the juries gave an untrue acquittal, "contrary to good and pregnant evidence," upon notice or complaint to the Lord President and others of the Council of the Marches, the jurors might be bound over, together with the Justiciar, Steward or other officer, before whom such untrue verdict was given, to appear and be examined before the Lord President and Council of the Marches as to whether they had so misbehaved, and if this were proved, the jurors were liable to fine and imprisonment.
In the same year, a measure (26 Henry 8, c. 5) was passed to prevent the escape of felons from Gloucestershire and Somersetshire "over the water of Severn" into South Wales, The keepers of ferries over the Severn were forbidden to convey in their boats any manner of persons, goods, or chattels between sunset and sunrise, excepting passengers whom they knew and could answer for.
The next Act of 1534 (26 Henry 8, c. 6) describes the turbulent state of the Welsh people, still full of discontent at the presence of the English garrison. Its preamble recites that the "people of Wales and the Marches of the same not dreading the good and wholesome statutes and laws of this realm, have of long time continued and persevered in the perpetration and commission of divers thefts, murders, rebellions, wilful burning of houses, and other scelerous deeds, to the high displeasure of God, disquiet of the King's well disposed subjects, and disturbing of the public weal, which deeds were so rooted and fixed in the same people, that they were not likely to cease unless some sharp correction and punishment was provided." All persons, when duly summoned, were to appear at the Sessions courts or the courts of the Marches. On account of the unlawful exactions by the officers in the Lordships Marchers in Wales, where they had rule and authority, and on account of their wrongful committals to prison of the King's subjects, the King's Commissioners or Council of the Marches were empowered to send for the said officers, and the persons whom they had illegally imprisoned. If the illegal imprisonment were proved, then the Commissioners had power to order the said officer to pay to the injured parties the sum of not less than 6s. 8d. for every day of the wrongful detention besides a fine to the King's use. No weapons were to be brought into any court holden in Wales or the Lordships Marchers, or to any place within a distance of two miles from the same courts, nor to any town, fair, church or other assembly (except upon a "hue and outcry" made of any felony or robbery), nor into the highways, except by the command and assent of the Justices or other officers. No persons, without leave of the said Commissioners, were to make collections or exactions of goods or money under colour of marrying their children, saying or singing their first masses or gospels of any priests, or for the redemption of murders or felonies or for any other cause. No games of running, wrestling, or leaping were allowed; the game of shooting with the bow only was permissible. The punishment prescribed was one year's imprisonment and fine. The Courts were to be held in the most peaceable places, and any person casting anything into any Court was punished by imprisonment "any custom before this time to the contrary notwithstanding." (This referred to the ancient custom of casting "arthel" Exiles who to avoid punishment, fled from the jurisdiction where they had committed a crime and placed themselves under the protection of the Lord of the commote, who undertook to defend them, were called gwyr arddelw (men of avowal), arthelmen, or 'advocarii.) Felonies committed within the Welsh Marches were made triable in the adjoining English county, and an acquittal in the courts of the Lordships Marchers was to be no bar against indictment in the ordinary courts within two years after the commission of the offence. The Justices in England could issue process into the Marches against offenders, and were to certify outlawries and attainders to the officers of the Marches, who were to convey the offenders into England, The liberties, laws, and privileges of the Lords Marchers were to be preserved. Offences committed in Merionethshire were to be tried before the King's Justices of North Wales in Carnarvonshire and Anglesey (repealed in 1566); and the officers of all the Lordships Marchers were required to assist in securing culprits who escaped from one Lordship to another. The Lords Marchers had pretended to use a custom and privilege that none of the King's ministers and subjects could enter to pursue and apprehend such offenders.
A later Act of 1534 (26 Henry 8, c. 11) punished Welshmen attempting any assaults or affrays upon the inhabitants of Herefordshire, Gloucestershire, and Shropshire. The inhabitants of these counties had been beaten, maimed, grievously wounded, and sometimes murdered for attempting to pursue felons into Wales or the Marches, so a penalty was imposed of one year's imprisonment over and above the punishment inflicted in the ordinary course of law.
The last Welsh Act of 1534 (26 Henry 8, c. 12) was "An Act for purgation of convicts in Wales" ordering that Welsh clerks convicted of petty treason, murder and other offences were to give surety before two Justices of the county where the ordinary's prison was situated, or else of the adjoining county. By a previous Act (23 Henry 8, c. 1) the ancient privilege of "benefit of clergy" had been taken away in England from criminals and clerks convict, who were thereafter required to provide sureties for good behaviour before two Justices of the Peace. Inasmuch as there were no Justices of the Peace of the quorum at this time in Wales, clerks in holy orders who were convicted were required to give such sureties in Wales before two Justices of the Shire.
By the several statutes of 1534, the King aimed at removing the trials of serious crimes from the jurisdictions of the Lordships Marchers. These Acts paved the way to a more thorough organization. "Over and above the unwillingness of juries to convict, the chief source of disorder lay in the regalities of the Lord Marchers. Here were a number of little kingdoms to which criminals could resort without fear of punishment or extradition, where, if fines were levied, they were levied for private profit, and not in open court, and where magnates like Lord Worcester or Lord Ferrers derived a revenue out of "the manifold selling of thieves." In the lordship of Magor there were living in those times five malefactors guilty of wilful murder, eighteen guilty of homicide, and twenty thieves and outlaws. Such a situation was clearly intolerable, and Henry's government determined to put an end to it by converting the lordships into shire ground."[16]
A.D. 1535.—An Act of 1535 (27 Henry 8, c. 5) provided for the appointment, under the Great Seal, of Justices of the peace. Justices of the quorum, and Justices of gaol delivery for certain counties in Wales. These Justices were to have and exercise the same powers as similar Justices had and exercised in England; and they were to administer the criminal laws observed in the English counties, in order to put an end to the offences committed in the Welsh counties. The various Sheriffs and other peace officers of the King were obliged to attend upon the said Justices for the purpose of executing their precepts and processes, as was done in the English shires. The Justices of the peace and the Clerks of the peace were to be entitled to the same fees and allowance as in England. The receipts of the several counties and the Sheriffs' accounts were to be made at the King's Exchequers at Carnarvon, Caermarthen, Pembroke, and Cardiff, as was done by English officials at the King's Exchequer in Westminster. Another statute of the same year (27 Henry 8, c. 7) abolished certain unlawful and unreasonable customs then existing "contrary both to the Law of God and man" in some of the forests of Wales, where payments had been exacted from those travellers who passed through, unless they carried "tokens" or were "yearly tributors or chensers." Travellers found or espied twenty-four feet out of the highway lost a joint of their hands and all their money, and were also liable to a fine to the foresters. Beasts straying were accustomed to be captured, confiscated and marked with the forest mark, and to repossess themselves the owners thereof had to buy them back. All the King's subjects were thenceforth to be permitted to pass through the forests without paying toll, and stray cattle were to be restored to their owners upon repayment for their keep when detained. The abuses of these Welsh forest customs have their parallel in the forest laws and customs of the early Norman Kings.
The "Statute of Uses" (27 Henry 8, c. 10) was an important measure of reform, enacted in 1535. On two previous occasions the passing of this statute had been defeated in Parliament. According to the common law of England, land was not subject to testamentary disposition, but descended according to the ordinary feudal rules. A custom had grown up of leaving estates in "use" or upon trust, and the Court of Chancery in England recognised that the cestui qui use possessed an equitable estate in land devised for his benefit. The liberty of testators had thus developed, depriving the over-lords of many of the privileges incident to the feudal system. The passing of this measure was not favoured by the gentry, but it was procured by ingeniously setting forth the embarrassing evils arising from these fictitious conveyances. It was therefore declared that persons entitled to the use of lands were to be to all intents and purposes the lawful possessors, and consequently to be liable to all the incidents of feudal tenure, just as if the lands had been made over to them by formal grant or conveyance. The 16th section provided that the Act was not to be prejudicial to any persons born in Wales or its Marches, and that they should hold any lands, &c., according to the tenor and under the authority of the same.
In the same year, in order to prevent the exportation of leather, an Act (27 Henry 8, c. 14) was passed forbidding tanners to export hides or leather, but by section 7 of the Act, untanned hides of beasts killed within Wales and its Marches were allowed to be sold and exported by any persons "except only by tanners and such as had tan houses." This was part of the paternal legislation frequently indulged in by the early Tudor Parliaments.
A later Statute (27 Henry 8, c. 24) of the same year shows that Henry secured all the executive and judicial power in the realm of England, Wales and the Marches, by uniting all authority under the "Imperial Crown of this Realm." He alone was to be Lord and Ruler. It was part of the plan for rendering the process of law more effectual by placing every judicature in the Kingdom in his hands.
The first of the important measures of Henry the 8th, by which Wales was, in 1535, admitted into the English polity, is entitled " An Act for Laws and Justice to be administered in Wales in like form as it is in this Realm" (27 Henry 8, c. 26).
Its preamble recites, in the imposing style of Tudor English, that the "Dominion, Principality and Country of Wales" was and ever had been incorporated, annexed, united, and subject to the "Imperial Crown of this Realm as a very member and joint of the same, whereof the King's most Royal Majesty of very right, is very Head King Lord and Ruler," yet because in that same Country Principality and Dominion divers rights, usages, laws and customs were far discrepant from the laws and customs of England, and also because that the "people of the same Dominion have and do daily use a speech nothing like nor consonant to the natural mother tongue used in England, some rude and ignorant people have made distinction and diversity between the King's subjects of this Realm, and his subjects of the said Dominion and Principality of Wales, whereby great discord, division and sedition had grown between his said subjects." In order to extirp all the "sinister usages and customs" and to bring the subjects of his Realm and of his said Dominion of Wales to an amicable concord and unity, it was ordained that Wales should be incorporated with England, and that "all persons born, or to be born" in Wales should have all the liberties, rights, privileges, and laws which were enjoyed in England. It is in this preamble that the first instance is to be found where the Sovereign of England is unequivocally styled "King" of Wales.
By section 2, the Welsh laws of inheritance appertaining to the descent of manors, lands, and other hereditaments were abolished, and the laws of inheritance and other laws of England were to be used and executed in Wales in lieu thereof, but it was also provided by the 35th section of this Act that "lands, tenements, and hereditaments lying in Wales," which have "been used time out of mind by the laudable customs of the said country should be departible among issues and heirs male as if this Act had never been had nor made." These two sections seem inconsistent. The intention evidently was that persons who relied upon any right under the ancient Welsh system of tenure were called upon to prove that it existed before the time of legal memory. The apparent variance was, however, remedied by the complete abolition of Welsh customs and rules of descent in 1542 (34-35 Henry 8, c. 26, s. 91); although the Welsh system of gavelkind still prevails in respect of customary lands in some manors of the Vale of Glamorgan, the manor of Talley in Caermarthenshire, Bishopston in Gower, and Liswerry and Pencarn in Monmouthshire.
The disorderly and turbulent Lordships Marchers within the Dominion of Wales, lying between the shires of England and the existing Welsh shires were dealt with by uniting some to English counties, and leaving the others to Wales. The lordships apportioned to Wales were formed into five new counties: viz., the shires of
The following old Welsh counties were enlarged by the addition of various lordships, viz.:—
Glamorgan received nine, Pembroke twelve, Cardigan three, and Merioneth one; and other lordships were annexed to three of the English border counties.
The boundaries of the new Welsh counties were expressly defined, and their head or shire towns selected. The shire court of Brecknockshire was to be holden at Brecknock; that of Radnorshire, at New Radnor alternately with Rothergowy (Rhaiadr Gwy), or Rhayader, subsequently altered to Presteign by's. 118 of 34-35 Henry 8, c. 20, 1542; that of Montgomery, alternately at Machynlleth and Montgomery; that of Denbighshire, alternately at Denbigh and Wrexham. In Monmouthshire, Monmouth was selected as the head town, the shire court to be there and at Newport alternately, and all actions in Monmouthshire were to be heard and determined as in an English shire. The position of Monmouthshire is somewhat anomalous. Technically it has been an English county since this Act, but it is often for administrative purposes, and sometimes by legislation, treated as part of Wales, or grouped with some of the Welsh counties. A large proportion of its inhabitants are Welsh in origin, in language, and habits, and the industrial development of the county has been closely allied to that of its adjoining shire, the county of Glamorgan.[17]
It was declared, by section 9 of this Act, that as the new Welsh counties were far distant from London, and because their inhabitants were "not of substance power and ability to travel out of their country to seek the administration of justice" the King was to have his Chancery and Exchequer at the Castles of Brecknock and Denbigh. The sheriffs and shire officials were ordered to render yearly accounts to a Baron of the Exchequer appointed for the purpose.
In the new shires a separate judicial system was instituted. Justice was to be administered according to the laws of England, and according also to such other customs and laws used in Wales as the King in Council should allow and think expedient, requisite, and necessary, and after such form and fashion as justice was used and ministered within the three ancient shires of North Wales. The Welsh language was abolished in all the courts. All proceedings were to be carried on in the English tongue; no person using the Welsh speech was to enjoy or hold any office within the English realm, Wales, or the King's Dominions unless "he used and exercised the English speech or language."
By this measure the right of parliamentary representation was conferred upon Wales. One knight was to be chosen and elected to the sitting and future Parliaments for each of the shires of Wales. For every borough being a shire town (excepting Merioneth) one Burgess was to be likewise chosen. Two knights of the shire were to be elected for the county of Monmouth, and one Burgess for the borough of Monmouth. Fees to these representatives—"such fees as other knights of the Parliament" had—were to be levied and paid.
On only two occasions before the passing of this Act is there any record of Wales being represented in the English Parliament. The first was in 1322, when twenty-four members were summoned as representatives from South Wales and the same number from North Wales to appear in the famous Parliament of York which enunciated the great constitutional principle that all legislative changes required the assent of the three estates of the Realm. The second occasion was in 1326-7, when forty-eight representatives appeared at Westminster in the Parliament which deposed Edward the Second.[18] From the passing of this Act of 1535 to the great Reform Act of 1832 there was no further change in the number of parliamentary representatives for Wales.
Every lay and temporal Lord Marcher, by the 14th and 30th sections of this Act, was to retain all his privileges and hold his accustomed courts. This was extended to ecclesiastical Lords in the reign of Philip and Mary (1-2 Philip and Mary, c. 15).
The "laudable customs" in vogue in the three ancient shires of North Wales were saved, together with the liberties of the Duchy of Lancaster within Wales. It was expressly provided that the vested interests of persons who had enjoyed fees or offices should not be disturbed during their lives. It was also enacted that Henry's Act of 1534 (26 Henry 8, c. 6), which dealt with the trial of murders and felonies committed within any Lordship Marcher in Wales, and provided for the trial of those offences in the next adjoining shire of England, was not to be affected in any manner.
That this Act of 1535 was only meant to be an instalment of legislation is shown by sections 26 and 27. Section 26 provided that after the prorogation or dissolution of that Parliament, the Lord Chancellor was to appoint a Commission to inquire into and view the shires of Carmarthen, Pembroke, Cardigan, Monmouth, Brecknock, Montgomery, Radnor, Glamorgan, and Denbigh, for the purpose of dividing them into hundreds, as in the English shires. There appears to be no record of this commission or its report. Rowland, in his Mona Antiqua, states that copies of the proceedings of these Commissioners were deposited in the office of the Chamberlain and Auditors of North Wales, and that Sir William Gryffydd caused them to be translated by one Jenkin Gwyr, and that they were entitled "the extent of North Wales," and section 3 of the later Act of 1542 also indicates that the Commission did its work. Section 27 provided also for a Commission to inquire and search out by all ways and means all the laws, usages, and customs used within the Dominion and Country of Wales, and to report to and advise the King in Council within a specified time, so that all such laws, if considered expedient and necessary, should be preserved and observed. No record of this Commission is to be found.
The great power of Henry, with the subservience of his Parliament to his strong will and capacity, is exhibited by the 36th section. This enacted that his Majesty could suspend or revoke any part of this Statute at any time within the next three years, provided that the suspension or revocation was made under the Great Seal and proclaimed in every shire of Wales. His Majesty was also empowered to erect courts in Wales within five years after the end of the Parliament then sitting,
A.D. 1536.—In 1536, the King received parliamentary authority (28 Henry 8, c. 3) to allot the townships of Wales at any time within the next three years, and to name and assign the shire towns. In the same year a statute (28 Henry 8, c. 6) was passed continuing the Act of 1534 (26 Henry 8, c. ii), against Welshmen making affrays in the Counties of Hereford, Gloucester, and Salop, until the last day of the next Parliament. It may be here observed that, so far as lawlessness was concerned, Wales did not stand alone at this period, for Henry also had occasion to deal with rebellion and disorder in almost every part of his realm.
A.D. 1539.—In 1539 it was stated, that owing to more pressing business, the King had not had time to proceed with the allotment of townships in Wales, so an Act (31 Henry 8, c. 11) extended this power for a further period of three years.
A.D. 1540.—The Act "for the Trial of Treasons in Wales" (32 Henry 8, c. 4) provided that treasons committed where the original writs in Chancery "commonly runneth not" should be tried by the oaths of twelve men of the shire before the King's appointed Commissioners. Persons accused of treason or misprision of treason within the Principality and Dominion of Wales and the Marches of the same might be tried wheresoever the King should appoint, and by Commissioners of oyer and terminer, provided always that peers of the realm were to retain their ancient privilege of trial by their peers.
In the same year, by the Act (32 Henry 8, c. 27) for the resumption at Calais, Berwick, and Wales, reciting that "whereas divers subjects of the King had by sinister and subtle means obtained divers grants and letters patents of offices within the King's Dominion of Wales, contrary to the common wealth of the country there: and also to the great disquieting vexation and trouble of the King's loving and obedient subjects," it was ordained that, from September 1, 1540, all such grants should be made void and of no effect.
Another Act of 1540 (32 Henry 8, c. 37) enabled executors to recover and maintain actions for arrears of rent due to the testator: but, by section 2, it was not to apply to the manors or lordships or dominions in Wales or in the Marches whereof the inhabitants had been accustomed time out of mind to pay certain sums of money to every lord or owner of such lordship, manor, or dominion as duties on forfeiture.
A.D. 1541-2.—It was ordained by 32-33 Henry 8, c. 3, that Welsh cloths made in North Wales should be folded in pleats and cuttles as was done in other parts of the realm, so that buyers might plainly see the breadth and goodness of their purchases. This was done to prevent the complaints against the makers for having craftily rolled these cloths in such manner as to prevent the buyers ascertaining the making and measurement of the same. In the next year (by 34-35 Henry 8, c. 11) we find another Act for the true making of Welsh frises and cottons in the towns of Caermarthenshire, Pembrokeshire, and Cardiganshire. This states that the manufacture in these towns had decayed and that "foreigners husbandmen and graziers" living in the country outside these towns were making their own wool into frises and cottons "after the most false and deceitful manner that may be." So to remedy this, it was ordered that the said frises and cottons should be of proper weight and measured as specified therein.
A.D. 1542.—The second great measure of Henry the Eighth's reign affecting Wales became law in 1542. It established a new but independent system of law courts in Wales, a system of judicature which lasted for nearly three centuries, and in efficiency and simplicity was in advance of the technical and more complex legal system obtaining in England.
It is intituled "An Act for certain Ordinances in the King's Majesty's Dominions and Principality of Wales" (34-35 Henry 8, c. 26), and its object was, as is stated therein, for the "good rule and order of the Dominion Principality and Country of Wales." It recites that it was passed at the humble suit and petition of the King's subjects in Wales, so that his said subjects "may grow and rise to more wealth and prosperity."
The Dominion, Principality, and Country of Wales was henceforth to be divided into twelve shires, eight of which were shires of long and ancient time, viz.:
|
Glamorgan. |
Caermarthen. |
the remaining four being the new shires of
|
Brecknock. |
Radnor. |
which had been constructed and defined by the Act of 1535. These new counties, having been divided into hundreds as was provided for by legislation, the division was confirmed by this Act.
The new system of courts called the "King's Great Sessions in Wales" were to be held twice in every year. The twelve shires were divided into four circuits, each comprising three counties, presided over by one Justice, learned in the laws, to keep the Great Sessions. Later, in 1575, another Justice was added to each circuit (18 Elizabeth, c. 8).
The circuits were—
| Chester | Denbighshire | under the Justice of Chester. | ||
| Flintshire | ||||
| Montgomery | ||||
| Caernarvon | Caernarvonshire | under the Justice of North Wales. | ||
| Merionethshire | ||||
| Anglesey | ||||
| Caermarthen | Caermarthenshire | under the Justice of Caermarthen, &c. | ||
| Pembrokeshire | ||||
| Cardiganshire | ||||
| Brecknock | Radnorshire | under the Justice of Radnor, &c. | ||
| Brecknockshire | ||||
| Glamorganshire |
The Justices, appointed under the Great Seal, were to hear all manner of pleas, actions, and criminal matters according to the laws, statutes, and customs of England. They were given the same powers as the King's Chief Justice and other Justices in the English Courts.
The Great Sessions were to be held for six days in every shire, of which fifteen days' notice was required to be given by proclamation.
Official seals were prescribed. All writs and processes were to be sealed. There are still extant seals which, within the Principality of Wales, were the chief emblems of sovereignty in Wales. This important and striking series of seals were known as the Royal Judicial Seals of the King's Great Sessions in Wales, and cover a period of three hundred years.[19] Stewards of manors were to continue to hold their courts, but were expressly forbidden to inquire into felonies. Officers of incorporated towns, according to their lawful grants and laudable customs, were to continue to hold pleas and to determine actions, provided that they followed the English laws and customs, and not Welsh laws, and provided also that in personal actions the issues joined should be tried by a jury of six men, as had been the custom in divers places in Wales. Power was granted to the King to dissolve boroughs which had their grants from the Lords Marchers, and in their place to erect others, and the King "was pleased and contented of his most gracious goodness" to allow existing officials to enjoy their ordinary fees for life. Regulations for judicial seals, fines, and fees were minutely set forth. For making process and entering process an official called a "prenotary" was appointed for each circuit. "The Prothonotary, or chiefe registrar, draweth all the pleadings, entreth and engrosseth the Records and Judgments in civil causes and ingrossing Fynes."[20] A marshal and crier were to attend upon the Justices, as in the English Courts. They were paid by fees, and upon the acquittal of a felon the marshal received fourpence and the crier a penny.
In addition to the Justices of Great Sessions the Lord Chancellor appointed eight Justices of the Peace and one "custos rotulorum" for each shire. This provision was extended in 1693 (5 W. & M., c. 4) by allowing the King to appoint as many Justices as he pleased. These Justices of the Peace met quarterly, and for urgent matters at other times. The President of the Council of Wales, the Justices of the Great Sessions, the King's Attorney and Solicitor were put in every commission of the peace. The Justices of the peace were qualified to sit "if of good name and fame, even if they did not dispend £20, and even if not learned in the law." They appointed two substantial gentlemen or yeomen, in each hundred, to be chief constables for the conservation of the peace. Sheriffs, the chief executive officers of the county, were to be nominated yearly according to English fashion by the President of the Council and Justices of Wales to the Privy Council, on the Morrow of All Souls (crastino animarum), altered later (by 24 George 2, c. 48) to the Morrow of St. Martin. The Welsh Sheriffs formerly had been elected for life, and, it is said, "sought more to enrich themselves by the office than to see justice administered." Sheriffs rendered accounts to the auditor for Wales, each sheriff having a yearly fee of £5. An escheator, who attended to the King's revenues and seized all escheated goods and forfeited lands, was appointed for every county. The sheriffs were to hold their monthly county courts and their hundred courts for pleas under forty shillings, as was the custom in England. In these courts, and also before Stewards in courts Baron, the trials were to be decided by the verdict of six men or by wager of law (the latter being a proceeding which consisted in a defendant discharging himself on his own oath, bringing with him at the same time eleven of his neighbours as compurgators to swear that they believed his denial to be true). The sheriff was to provide gaols and to continue to hold his "tourn" once after Easter, and once after Michaelmas. Fines were not to be inflicted in murder cases or felonies and no agreement between prosecutors and felons was to be made without the consent of the Justices of Great Sessions. No sale of stolen property in any fair or market was to prevent the true owner from seizing or recovering the same. The Welsh custom of tracking stolen property was recognized as legal, and the sale of any manner of beasts out of market was forbidden except upon credible testimony. By the 68th section two coroners were to be elected in and for every shire, as was done in England. The appointment was made by the freeholders of the shire, but since 1888 it has passed into the hands of the County Councils.
Errors of judgment before the Great Sessions in real actions or mixed actions (i.e., actions partaking of the nature of both real and personal actions) were to be redressed by writ of error in the English Chancery; errors in personal actions were to be redressed before the President and Council of Wales, and urgent or weighty causes were to be directed into Wales by special command of the Lord Chancellor or the King's Council in England. There are many matters of minor importance dealt with in this Act, such as scales of fees and charges, tallages (taxes), aulnages (customs duties on cloths), regulations as to sealing of cloths and forbidding cloths made at home from being put to sale, subsidies and charges for knights of the shire, and retention of franchises and customs.
The town of Haverfordwest was made a county, with the right of returning one burgess to Parliament, and was placed under the jurisdiction of the King's High Justice of Pembrokeshire.
By this statute the Welsh system of land tenure and partition on death was finally abolished, and the 91st, 92nd, 93rd, 101st, and 128th sections are worthy of attention. The leading principle contained in these sections was that all lands in Wales were to be held subject to English tenure and not to be partible among heirs male after the custom of gavelkind, but should descend to the heirs according to the course of the common laws of the Realm of England. Lands were to be sold and mortgaged also according to English law.
As we have already noticed, the privileges of the Lords Marchers had been preserved by the 30th section of the Act of 1535. By the 101st section of the Act of 1542 the liberties, franchises, and customs of the Lordships Marchers were to be maintained according to the Statute of 1535 in those Lordships which had come into the hands of King Henry the Eighth after the suppression of the monasteries and by purchase or attainder. The private rights and private property of the Lords Marchers were not to be affected. In 1849, in the case of the Duke of Beaufort v. Smith (19 Law Journal Reports, Exch., p. 97), it was held that s. 101 of 34-35 Henry 8, c. 26, did not interfere with the private rights claimed by the Lords Marchers of Wales as lords of manors or owners of the land. This was a case where the Duke of Beaufort, as lord of the manor of Kilvey in the county of Glamorgan, claimed certain tolls. This manor is referred to in the Statute 27 Henry 8, c. 26, s. 14 (1535), and its liberties and customs were saved by the 30th section of the same Statute. The defendant relied on the 101st section of the Act of 1542, alleging that the tolls claimed in 1849, being levied irrespective of any tenure, were taken away by that section; but in giving the decision of the Court Baron Rolfe held that the section was only intended to destroy the rights and privileges of the Lords Marchers as quasi conquerors, and did not refer to their private rights.
By the 102nd section peaceable possession by any persons for the space of five years of any lands or tenements in Wales was protected. The King's power is shown further in the 119th and 120th sections, which gave him power to make laws for Wales and to alter those existing at his pleasure. Such alterations and laws were to be of the same strength and effect as if they were made directly by authority of Parliament.
The Court of the President and Council in Wales and the Marches was for the first time formally established by the 4th section of this Statute. The history of this Court demands attention, for it played a most important part in the constitutional history of Wales.
The "Court of the Council in the Dominion and Principality of Wales and the Marches of the same" was one of the extraordinary Courts of the Tudor and Stuart periods. It was not altogether a new body created by this Statute, but a development of an institution, the "Prince's Council," which had existed ever since the time of the first English Prince of Wales for the purpose of administering his estates The Long Parliament partially abolished it; the Restoration revived it; and the Revolution of 1688 finally abolished it. By its organization an important step was taken towards the union of England and Wales, for the Principality and the Marches were for the first time united under one rule.
This Court was created for the purpose of establishing and maintaining order in the borderland which had been the scene of so much disturbance and misrule for years. The most turbulent districts within its jurisdiction were those which subsequently formed the counties of Radnor, Montgomery, and Denbigh. The following lordships are repeatedly mentioned as the haunts of criminals, viz.: Elvael, Arwystli, Kerry, Caedewen, and Cyfeiliog; and, according to Bishop Lee, Presteign was the place "where the thieves were thickest." The lordships of Chepstow and Gower in South Wales, the lordships of Oswestry and Powys, the shires of Merioneth and Cardigan were noted for their disorder, but the Marcher Lordships of Northern and Central Wales appear to have been the worst.
Up to the middle of the sixteenth century the main work of the Council consisted in punishing this lawlessness with which the Common Law Courts were powerless to deal. During the succeeding half century it acted both as a judicial and also as an administrative body—the instrument of the Privy Council in Wales and the Marches. During this period the dignity of the Council increased, and its organization became fixed; but the cases with which it dealt were less serious than in earlier years, and by the end of the sixteenth century its decline had commenced. In the seventeenth century it was mainly a Court for the settlement of petty suits, and the elaborate establishment which had descended from the days when Princes had kept Court at Ludlow seemed unnecessary.
The Council sat permanently at Ludlow, but met also occasionally at other places. It held Sessions at Hereford, Bewdley, Shrewsbury, Worcester, Gloucester, Tewkesbury, Hartlebury, Bridgnorth, Oswestry, and Wrexham. Bishop Lee, that "stowte travellinge president," went further afield in his duty, for he scoured Wales as well as the Marches in his search for criminals. Lee was President of the Council from 1534 to 1543. In company with Sir Thomas Englefield, the Chief Justice of Chester, he travelled through the country, studied its men and manners, discerned the secret roots of disorder, and set himself to pluck them out. The power of inflicting the death sentence was so lavishly exercised under his rule that it was said that within the space of six years over five thousand men were hanged. It was on his advice that the penal acts of 1534, which have already been noticed, were passed.[21] Another great President was Sir Henry Sydney (1559-1586), famous for his justice and mercy.
The area of the Council's jurisdiction was a debatable point, constituting the historical legal controversy of the seventeenth century, which, although in form concerned with the jurisdiction over the four English border counties, really raised the question of discretionary governments in general. In this, as in so many other cases, broad constitutional issues were argued on the narrowest legal grounds. The matter came to a head on November 3, 1608, when the Privy Council, with the Judges of England, met to decide whether James the First could by his own prerogative, and the statute of 34 Henry 8, c. 26, give power to the Lord President and Council of the Marches to exercise jurisdiction within these counties. The case was argued for six days. Coke led for those who denied the King's prerogative, and Bacon appeared for the President and Council. The Judges refused to decide the questions submitted to them, stating that if the matter came before them judicially, they would determine it to the best of their ability. It was during this controversy that Coke upheld the reputation of the English Bar for independence. There was great wrangling between him and King James. The Judges were consequently given time to reconsider the matter. Their written opinion was given on February 3, 1609, but it was never published.
The point of greatest interest in the history of the Council is its relation to the central and local authorities. It was subordinate to the Privy Council and closely connected with the Star Chamber. It exercised a considerable measure of control over local Courts and local officials, especially over sheriffs and justices of the peace, and was thus a link between the central and the local government, facilitating thereby the working of the new institutions created for Wales by the legislation of Henry the Eighth.
The Council of the Marches was also useful in carrying out the administrative work of the Privy Council. The administrative duties of the Lord President and his colleagues were extremely varied. Besides its military and economic functions, the Council was utilized for many other purposes. Proclamations were sent down to the Lord President for publication in Wales and the Border; he was expected to suppress false and seditious rumours, and to strengthen the hands of the Government in every possible way. Among the miscellaneous duties devolving upon him may be mentioned the collection of money for the repair of St. Paul's Cathedral; the supervision of certain royal forests, the removal of weirs and stakings in the Severn, and the arrangements for an Eisteddfod. Just as the Privy Council deliberated on all affairs of State, so in his narrower sphere the Lord President of Wales was responsible for the good administration of the counties within his jurisdiction. Perhaps his position cannot better be summed up than in a letter to the Earl of Bridgewater from the Vice-Admiral of North Wales. "Nothing within this yr jurisdiction of Wales can be strange to your Lordship, for that your Lordship is the true Center wher all other lines meete, and what is within the knowledge of any man of qualitie and understanding will be sure to finde a way under you."
In their decline, as during the period of their activity, the Court of Star Chamber and the Council of the Marches were closely linked. Much of the unpopularity of the latter body arose from its resemblance to the Star Chamber which in the England of the seventeenth century was a hated instrument of the royal prerogative. In the many articles of complaint against the Court of the Marches its resemblance to the Star Chamber is nearly always mentioned, and it is not surprising that both Courts were overthrown together.
The Council of the Marches also supervised the working of the Courts of Great Sessions. Thus in 1573 they were ordered by the Privy Council to see that there were two justices attending in person on each circuit at the Great Sessions to try the criminal cases before civil causes were disposed of.
The best description of the working of the Great Sessions and their relations to the Council of the Marches in the sixteenth century is given in George Owen's Dialogue on the Government of Wales. He points out the inconvenience of holding the Great Sessions in Lent when oats are being sown, and in August and September during the corn harvest. He adds that the Justices do not give enough time in hearing equity cases, and that many suitors are compelled to come before the Council of the Marches, which gives judgment more speedily and at less expense. Appeals in personal actions lay from the Courts of Great Sessions to the Council. Instances of the conflict of jurisdiction between the two bodies were not common, although there were many complaints in general terms of persons being drawn from remote parts of Wales to attend the Council. But it is obvious that sessions held twice a year in each circuit for six days at a time were inadequate to deal with the mass of legal business arising out of the rapid economic changes which were taking place in Wales.
The Council also exercised authority over the courts of the various boroughs within its jurisdiction. The sheriffs in Wales were bound to execute all lawful commands of the Lord President and Council. Several letters referring to the nomination of sheriffs are extant in the Welsh Shrievalty Papers (Bundle 6) among the Bridgewater MSS. Some of these are lists of leading gentry, with notes as to their fitness for office, e.g., " John Vaughan of Glan y Llyn, Esq., very fitt for estate, not for his discretion, but his wife discreete."
From George Owen's Dialogue we gather that supervision of the Welsh sheriffs was highly necessary, owing to their practice of erecting new Hundred Courts for purposes of extortion. The Council, he says, had grievously fined sheriffs for keeping such courts, and in Brecknockshire the practice had been stopped.
A close connection may be traced between the Council of the Marches and the characteristic local official of Tudor times, the Justice of the Peace. Welsh Justices of the Peace were appointed by the Chancellor of England on the advice of the President, Council, and Justice of Wales. The Lord President was expected to choose suitable persons, and to keep them up to their work. He and the chief members of his Council were usually on the Commissions of the Peace for Wales and the Border Counties.
The Lord President was, usually, Lord-Lieutenant of the Counties of Wales and the Border Counties. In this capacity he performed military duties. In the seventeenth century, especially after the Restoration, his duties were merely those of a modern Lord-Lieutenant on an extensive scale.
In 1640, the fifth Parliament of Chales the First (the Long Parliament) was elected. Oliver Cromwell, a Welshman by descent, was one of its members. By this victorious Parliament a sweeping measure of constitutional reforms was carried out. The principal supports of the government of the Stuart kings were attacked and destroyed. The Star Chamber and its kindred institutions, viz., the Court of High Commissions, the Council of the North, and the Council of the Marches were the first dealt with. They had all degenerated into submissive instruments of the royal prerogative and the Stuart pretensions to absolute power. A special committee was appointed to consider their extraordinary jurisdiction. The knights and burgesses of the Counties of Wales and of the four adjoining English shires, the Marches of Wales, together with all the lawyers in the House of Commons, formed part of this committee. With a promptitude and decision not generally found in modern parliamentary commissions relating to Wales, this committee resolved that—
"(1) The jurisdiction of the Courte of the President and Counsell of the Marches of Wales as it is now exercised is a grievance of the subjects of those partes."
"(2) That the Courte of ye President and Counsell of the Marches of Wales is useless to the subjects of the 13 Countyes and fitt to be taken away by bill."
Following this report the Act, 16 Charles 1, c. 10, involving the suppression of the Star Chamber and the Court of the President and Council in the Marches of Wales, received the royal assent.
The civil work of the Court of the Marches did not however cease; it continued until the outbreak of the rebellion, and was resumed at the Restoration in 1660. It was finally abolished by 1 William and Mary, c. 27 (1688). The grounds of suppression in that year were summarized as follows:—
(1) That the Court had been found by experience an intolerable burthen to the subject, contrary to the Great Charter, the known laws of the land and the birthright of the subject, and the means of introducing an arbitrary power and government.
(2) That matters determinable there may be redressed in the ordinary course of justice within the shires of the Principality.
The Courts of Great Sessions occupied the place of the Court of the Marches in civil and criminal matters arising in Wales until their abolition in the nineteenth century.
Between the Court of the Council of the Marches and the Common Law Courts at Westminster there was always a deep-seated jealousy, derived from professional dislike and an objection by lawyers to special jurisdictions. The arbitrary and extortionate fines of the Court of the Council of the Marches; its encroachment on the Common Law Courts; its failure to adhere to the duties imposed upon it; and its punishment of offences which had been already dealt with by the Ecclesiastical Courts, hastened its end. Before the close of the seventeenth century it had become also the willing servant of the royal will and prerogative, and, when confronted with the growing political strength of the people, its fall was inevitable.
In George Owen's Dialogue we find, however, that like many another institution which has degenerated, it contained some good features. It was, he says, "the very place of refuge for the poore oppressed of this country of Wales to flie unto. And for this cause it is as greatly frequented with sutes as any one Court at Westminster whatsoever, the more for that it is the best cheape Court in England for ffees and there is great speed made in trial of all causes."
The Council lived too long. If it had ended with the sixteenth century its record would probably have been higher. Its work had been done long before 1641. Wales had ceased then to be lawless and turbulent, and the ordinary courts of the land would have been sufficient for the maintenance of order and the settlement of disputes.
A full and accurate account of the history of this Council is to be found in the remarkably interesting and learned thesis written by Miss Caroline A. J. Skeel, D.Lit, F.R.Hist.S.
A.D. 1543.—The final legislation relating to Wales in the reign of Henry the Eighth occurred in 1543. It was (35 Henry 8, c. 11) an "Act for the due payment of the fees and wages " of members of Parliament. Every knight of the shire was to receive four shillings per day for his attendance in Parliament, and for so many days as were reasonably spent in going to and returning from Parliament. Every citizen burgess (borough member) was to receive two shillings per day. The sheriffs of the counties of Wales and Monmouthshire were to have full power to levy and collect the same, and were liable to a fine of £20 if they did not accomplish their duties within two months. The principal officers of the boroughs were also deputed to perform similar duties in providing for the payment of their local parliamentary representatives. The burgesses were, under this Act, to have a voice in the election of their members. The assessment for these payments was to be made by two Justices of the peace.
This Act was rendered necessary because the fees payable under the Act of 1535 had been negligently levied. It remained in force until its repeal by the Statute Law Revision Act, 1856, but the rights under the Act of 1535 were not repealed until the Statute Law Revision Act of 1887. The ancient right of English members of the House of Commons to receive "wages," though it has long fallen into desuetude, was not created by any statute, neither has it ever been repealed by statute. It was a right to receive 4s. a day, if a knight of the county, and 2s. a day if a citizen or burgess, "and so it hath been time out of mind, which is particularly expressed in many records." It is worthy of note that the Acts of Union relating to Scotland and Ireland do not contain any reference to or provision for the payment of members of Parliament.
Upon reviewing the main features of the Acts of Parliament bringing about the legal union of the Dominion of Wales with England, it will be useful to summarize briefly the most important points which appear in this period of transition from mediaeval to modern times.
The policy of the Tudor monarchy—a Welsh dynasty—in ruling Wales was that of establishing, so far as laws could establish it, a complete equality between the two nations; in delegating local government and administration to the people of Wales themselves; in introducing the whole system of English local government by permanently setting up the shire system; in uniting Wales with England by means of wise and far-seeing legislation; in paying deference to the national characteristics and aspirations of the Welsh people; in breaking up the Lord Marcherships; in removing the oppressive rule of the English officials, and in putting an end to the policy of coercive and repressive government.
In giving to Wales a separate judicature peculiar to the Dominion, although it was a system mainly administered by English lawyers and English-speaking judges, justice was brought within the reach of Welsh litigants. The Courts of Great Sessions became, in a sense, a national institution.
The admittance of Wales to parliamentary representation; the distribution of offices and honours to the Welsh nobility and gentry; and the gradual restoration of local government in lieu of the tyrannical rule of strange lords, led to and resulted in a better understanding between the two nations.
Even the rigorous proscription of the Welsh language by Henry the Eighth did not last long, for within twenty years a great change came over Parliament and the government of the country, which is evidenced by the statute passed in 1562 during the reign of Elizabeth for the translation of the Bible and the Divine services into the Welsh language. In this recognition of the Cymric tongue there was contained the seed of a great movement which had far-reaching results.
The historical consequences of the introduction of English land laws, entailing the abolition of the system of Welsh land tenures, were important Welsh tribal customs and tenure were ousted by a long and difficult process. Not even the vigour of Tudor administration could by statutory process alter the ancient national conditions. The result has generally been that the smaller holdings of the Welsh yeomen have gradually disappeared and following the legislation of Henry the Eighth the modern landlord system, with its great estates, has been developed.
After the time of Henry the Eighth Wales made rapid progress. There was a strong national revival. Professor Tout, in "Wales under the Tudors," says, that "Schools were set up; a Welsh college founded at Oxford; Welsh grammars, dictionaries, histories were written; many Welshmen rose to eminence in the service of their Church, both in Wales and England. Agriculture prospered now peace was secure and markets accessible. As Churchyard, the Welsh poet, sang in describing the Worthiness of Wales:—
"Markets are good, and victuals nothing dear,
Each place is filled with plenty all the year;
The ground manured, the grain doth so increase
That thousands live in wealth and blessed peace."
"The coal mines of Flintshire and Glamorganshire were developed. The Society for the Mines Royal, set up in 1567, opened up the lead mines of Cardiganshire. The extinction of piracy made the coasts safe for trade. Many Welshmen emigrated into England and won good positions in camp, court, and mart. Everywhere the policy of the Welsh line of English Kings had proved abundantly successful."[22]
Although the modern physical boundary of Wales was and is arbitrary, although it coincides neither with race, language, nor physical configuration, yet it was clearly defined by the Tudor legislation, and the fierce, debatable border-land, the scene of so much suffering and ruin, has since that period ceased to be the fruitful cause of national enmity.
A.D. 1547. —In the first year of the reign of Edward the Sixth (1 Edward 6, c. 10) a technical measure, designed to complete the efficiency of the judicial procedure in Wales, became law.
A writ of exigent was a writ issued by the King's Justices commanding the sheriff to summon a defendant to appear and deliver himself up upon pain of outlawry. Outlawry meant putting a person out of the law for contempt in wilfully avoiding the execution of the process of the King's Court. Although now abolished in civil proceedings, it is formally kept alive in criminal procedure by the Forfeiture Act, 1870 (33-34 Vict., c. 23). But in the old English laws relating to crime and wrong, it was the law's ultimate weapon, involving not merely escheat and forfeiture, but a sentence of death. Later it was extended to civil procedure, with lessened penalties. Ample opportunity was given to a defendant for appearing before he was treated as contumacious, and the sheriff demanded his appearance from county court to county court. The King's Justices could order a writ of exigent to issue, and thereupon a proclamation was made bidding the defendant come in to the King's peace, and in case of non-appearance, ordering that he should be outlawed, but no man could be outlawed until his appearance had been so demanded in five successive county courts.
Before the Act of 1535 founding the several shires of Wales, the King's writ did not run in Wales, and by an Act of 1514 (6 Henry 8, c. 4) proclamations awarded upon writs of exigent could not be directed into Wales, but only to the sheriff of the county next adjoining. By this Act of 1547, such writs and proclamations were to be issued by the King's Justices at Westminster against any persons dwelling in the Dominion and Principality of Wales, and to carry out its provisions the sheriffs for the counties of Wales and Chester were to have deputies in the Courts at Westminster to receive all writs, so that persons resident in Wales were to be outlawed in the same manner as in England.
A.D. 1548.—It appears from a clause in an Act passed in 1548 (2-3 Edward 6, c, 13, s. 16) that the tithe question was one which even at that time commanded the notice of Parliament. A custom then existed in many parts of Wales that "the parsons and curates in those parts" levied tithes on "such cattle and goods as hath been given with the marriage of any person." This custom was expressly declared by Parliament to be "grievous and unreasonable especially where the benefices are else sufficient for the finding of the said ministers and curates." Tithes on marriage goods were therefore abolished, notwithstanding the existence of any such custom. No compensation for vested interests was furnished by this Act.
A.D. 1554.—In this year was passed an Act touching the sea sands of Glamorganshire. In order to prevent the damage caused in that county owing to sand being driven by the "outrageous course and rage of the sea" to land by storms and winds, authority was given to Commissioners of Sewers to take steps to save the good ground lying on the sea coasts from hurt and destruction. Leland, in his Itinerary of Wales, which he made in 1536-1539, describes the sea coast referred to in the following terms: "From Newton to Kenfike Ryver a 6 miles. Of these 6 miles 3 be high cliffes on the shore; the other low shore and sandy grounde. For the rages of Severn Se castith ther up much sand. From Kenfik to Aber-Avon a 2 miles by low shore, parte morisch and sandy with the rages of Severn."
In the same year (by 1-2 Philip and Mary, c. 15) the privileges of the Lords Marchers temporal were extended to spiritual Lords Marchers, whose interests had been forgotten in the previous Act of 1535.
A.D. 1557.—During the same reign an Act (4-5 Philip and Mary, c. 2) came into operation "for the having of horse armour and weapons in Wales." This was intended for the better defence of the realm, but in the 18th section a proviso was inserted whereby the Act was not to extend to persons dwelling within the counties of North Wales and South Wales. These were required only to find one long-bow and one sheaf of arrows, over and besides such other armour as it was the custom to provide. This Statute repealed all other Acts respecting the keeping of armour and horses, and shows the quantity and kind of armour and weapons that were to be furnished and kept, at that time, by persons of different estates. It is possible to ascertain from its terms the proportion of the several kinds of troops maintained then for national defence. The military authorities of that period were not very solicitous to introduce the general use of fire-arms into the country, for they considered the Welsh long-bow equal in efficiency to the small firearm or arquebus (known also and referred to in this Act as the Haquebut or Hachbutt).[23] The skill and reputation of the Welsh archer with his long-bow had been firmly established for centuries. Giraldus Cambrensis describes the bows in his time as made of wild elm, unpolished, rude, and uncouth, not only calculated to shoot an arrow to a great distance, but also to inflict very severe wounds in close fight. The bow-armed Welsh from Gwent and Morganwg were the allies of Edward the First. Henry the Seventh in 1508 by statute forbad the use of the cross-bow, in order to induce the more frequent practice of archery. Henry the Eighth encouraged and practised the use of the long-bow. It is uncertain when the long-bow of the Welsh ceased to be carried into battle, but it was not used after the early part of the seventeenth century.
A.D. 1558.—The ancient customs and liberties of the inhabitants of Anglesey, Flint and Carnarvon as to landing foreign merchandise and the payment of customs were preserved to them by 1 Elizabeth, c. 11, s. 11.
A.D. 1562.—In 1562, by the 31st section of 5 Elizabeth, c. 5, it was provided that the wines of France could be brought into the ports of Cardiff, Newport, Carnarvon, Beaumaris, and other ports in Wales in limited quantities. By the 6th section of 5 Elizabeth, c. 23, passed in the same session for correcting the laxity that had crept into the practice in the ecclesiastical courts with reference to the process of excommunication, we find that Writs de excommunicato capiendo in Wales, where the Queen's writ did not then run, were directed to be sent to the Chief Justice or Justices there, and were not to be returnable to the Queen's Bench in England. In the same year an Act (5 Elizabeth, c. 25) extended a previous measure made in 1542 as to the summoning of jurors. The latter was a "wholesome and profitable statute" concerning the appearance of Juries in Nisi Prius, which did not apply to the twelve shires of Wales in certain cases. It was deemed necessary to remedy the procedure in the Courts of Great Sessions of the Principality in this respect. In civil and criminal trials in the latter courts, where, by reason of the default of the jury or of challenges to the jury, there was not a sufficient number of the jurors empanelled to try the issues, the Judge was to direct the sheriff to add to the jury panel the names of a sufficient number of persons qualified to act as jurymen who might be present or could be found. These jurors were called tales de circumstantibus.
But the Act for the translation of the Bible and the Divine Service into the Welsh tongue (5 Elizabeth, c. 28) was the most interesting and important result of the legislation of 1562 relating to Wales. It commences by stating that "the Queen, like a most godly and most virtuous Princess, having chief respect and regard to the honour and glory of God, and the soul's health of her good subjects," had, in the first year of her reign, ordered a Book of Common Prayer to be used throughout her Realm of England, Wales, and the Marches of the same, "that thereby Her Highness's most loving subjects, understanding in their own language the terrible and fearful threatenings rehearsed in the Book of God against the wicked and malefactors; the pleasant and infallible promises made to the elect and chosen flock; with a just order to rule and guide their lives according to the commandment of God might much better learn to love and fear God, to serve and obey their Prince and to know their duties towards their neighbours, which Book, being received as a most precious jewel, with an unspeakable joy of all such her subjects as did and do understand the English tongue, the which tongue is not understanded of the most and greatest Number of all her Majesty's most loving and obedient subjects inhabiting this Her Highness's Dominion and Country of Wales—being no small part of this Realm: who therefore are utterly destitute of God's Holy Word, and do remain in the like or rather more darkness and ignorance than they were in the time of Papistry." The evil condition of Wales in matters of religion at this period is described by Strype in his Life of Archbishop Parker, and is confirmed by this preamble.
The Bishops of Hereford, St. Davids, St. Asaph, Bangor, and Llandaff and their successors were therefore required to take order amongst themselves for the soul's health of the flocks committed to their charge within Wales, and were commanded to see that the whole Bible should be translated into the British or Welsh tongue.
The whole Divine Service was to be used and said in the British or Welsh tongue. The parishioners were to pay one-half of the cost of the books and the vicar or parson the remaining half. If the bishops or their successors neglected to carry out these provisions each one was to be fined £40, to be levied on their goods and chattels.
By the 2nd section of this Act (which section was repealed in 1863) it was also provided that the services were to be said in the Welsh tongue until the Bible was translated; and once every week at least the Articles of the Christian faith, the Ten Commandments, and the Litany, with such other part of the Common Prayer as was appointed, were to be read in the Welsh tongue.
The Bible and the Prayer Book in the English language were also to be bought and placed in every church throughout Wales, to remain in convenient places within the said churches, "that such as understand them may resort at all convenient times to read and peruse the same, and also such as do not understand the said language may, by comparing both tongues together the sooner attain to the knowledge of the English tongue."
The Reformation in England had not deeply affected Wales. The majority of the Welsh-speaking people had accepted the Tudor policy affecting the Church with equanimity. They continued in their old beliefs just as if no Parliamentary measures relating to ecclesiastical affairs had been passed. They returned under Mary without difficulty to their old faith, and under Elizabeth Protestantism again secured their qualified approval. It was during the reign of "Good Queen Bess," owing to the efforts of able, zealous Welshmen, and the Act with which we are now dealing, that the real Reformation in Wales began. In 1567, the first Welsh New Testament and the Welsh version of the Prayer Book were published by William Salesbury and Richard Davies. But the translation into Welsh, as ordered by this Act, of the whole Bible did not occur until 1588, when Dr. William Morgan did the work. This translation vitally influenced the religious and literary life of the Welsh nation; it gave a new stimulus to the continuance of the Welsh language; it produced a demand for education; and laid the foundations of the modern national movement in Wales.
A.D. 1566.—In 1566, by 8 Elizabeth, c. 20, the provisions of sections 6-10 of 26 Henry 8, c. 6 (1534) as to the trial of felonies in the county of Merioneth were repealed. The Act of 1534 had directed that not only were such offences, when committed in the county of Merioneth (one of the three ancient shires of North Wales), to be tried in the next English shire adjoining, but at the discretion of the Justices they might also be heard and determined in the counties of Anglesea and Caernarvon. This was a state of affairs declared to be "much to the discredit of the inhabitants of Merionethshire," so the jurisdiction in Anglesea and Caernarvon was taken away by Parliament, and Merionethshire ceased to be singled out for special legislative treatment.
A.D. 1575.—Additional Justices were appointed for Wales by 18 Elizabeth, c. 8. This statute referred to the Great Sessions, and declared that by the good administration of justice "the same Principality and Dominion of Wales, and the said County Palatine of Chester, are reduced to great obedience to her Majesty's laws, and the same greatly inhabited, manured, and peopled," and that one Justice in each circuit was unable to deal with the many great and weighty cases which arose. It was therefore provided at the most humble petition and suit of Her Majesty's subjects of the said Principality and Dominion of Wales that there should be two justices learned in the laws in every of the said circuits who, with their associates, should hold the Courts of Great Sessions.
A.D. 1584.—By a statute promulgated in 1584 (27 Elizabeth, c. 9) a system of registration of the transfer of real property was devised for Wales. The various writs of "fines and recoveries" were to be enrolled on parchment An office of enrolment was instituted in every Welsh shire and in the county of Haverfordwest, wherein all fines and recoveries were to be enrolled. These enrolments were to be examined and signed by the Justices of Great Sessions. A large number of these "pedes Finium" are preserved in His Majesty's Record Office, and it is said that they are almost, if not absolutely, complete for some of the counties of Wales.
A.D. 1605.—In 1605, it was provided (3 James 1, c. 17) that no persons were to incur any penalty for selling Welsh cottons which were not sealed as containing certain breadth, length, or weight. It was also provided that no Welsh cottons were to be searched or tried in the water by any one except the buyer.
A.D. 1623-4.—The benefits arising from the manufacture of cloth in Wales were referred to in the preamble of 21 James 1, c. 9. It was stated that in this manufacture many thousands of the poorer sort of the Welsh people had been set to work in preceding ages, whereby, having free liberty to sell to whom and where they would, they were not only relieved and maintained themselves and their families in good sort, but also grew to such wealth and means of living as they were thereby enabled to pay and discharge all taxes imposed upon them for the relief of the poor and for the service of the King and the Commonwealth. The drapers of Shrewsbury had obtained some orders of restraint whereby the inhabitants of Wales were much prejudiced in the freedom of the market for the buying and selling of their cloths "to their great damage, as was verified by the general voice of the Knights and Burgesses of the twelve shires of Wales and of the County of Monmouth." In 1622, the clothiers of North Wales and Oswestry had complained that in spite of the order in Council for re-settling the market at Oswestry the Shrewsbury drapers still tried to draw all the trade thither, and the dissatisfied Welshmen requested the punishment of the chief offenders against their privileges.[24] It was enacted therefore that Welsh cloths should be freely bought and sold; that they should be freely exported to foreign parts, paying customs; but that Welsh cloths should not be sold "by any foreigners" by retail within the town of Shrewsbury or any other corporate town or privileged place contrary to any lawful charter then in use.
Apart from the clear view presented in this Act of the social and industrial prosperity of a large class of the Welsh people at this time, it also shows that the general opinion of the Principality was formally deferred to and consulted upon a question materially affecting its inhabitants.
In consequence of the loyalty and dutiful subjection of the subjects of the Dominion of Wales, the section of the Act of Wales of 1542, giving King Henry the Eighth power to alter any laws or make any new laws concerning the Dominion or Principality of Wales, was repealed by 21 James 1, c. 10. All distinction between the subjects of England and Wales was abolished, "His most excellent Majesty tendering the common and constant good of the said country and Dominion of Wales."
Section 5 of a further Act of the same session (21 James 1, c. 28) regulated the quantity and quality of Welsh cottons. By the nth section of the same Act the cruel laws, which formed the coercion acts of Henry the Fourth, together with the Act passed in 1446-1447 confirming all statutes against Welshmen, were formally repealed.
The Commonwealth Period.
During the period of the Commonwealth there were four statutes directly relating to Wales which require notice. They are not to be found in the Statutes at Large, because for lack of any royal assent they were not Statutes in the legal acceptation of the term.
These Acts were not considered or passed by the House of Lords, for that legislative body was abolished on February 6, 1649, by a resolution, passed without a division, of the remnant of the House of Connmons. The latter body then claimed for itself the name and authority of the Parliament of England, and resolved that the "House of Peers in Parliament is useless and dangerous and ought to be abolished."
A.D. 1648.—The first of these Statutes, passed in 1648, dealt with the sequestration of South Wales and the County of Monmouth. The House of Commons requiring revenue, inflicted severe penalties on those counties which had taken a prominent part in the Civil War, fines being imposed upon each county, accompanied by directions as to the manner of payment and how the compositions of these payments were to be made. The total sum of fines thus levied upon the several counties for their respective delinquencies was £20,500, made up as follows:—
| £ | |||
| On the | County of | Pembroke | 3.500 |
| " | " | Cardigan | 3,000 |
| " | " | Carmarthen | 4,000 |
| " | " | Glamorgan | 3.500 |
| " | " | Brecknock | 2,000 |
| " | " | Radnor | 1,500 |
| " | " | Monmouth | 3,000 |
| £20,500 |
A number of persons were nominated in the Act to act as Commissioners to carry its provisions into effect.
A.D. 1649.—The second statute of this period, passed in 1649, is known as "the Act for the better propagation of the Gospel in Wales and redress of some grievances." It created a commission of seventy-one persons empowered to eject such clergy as they judged guilty of any delinquency, scandal, malignancy, or non-residence" and to supply their places with "godly and painful men." The Commissioners were to manage the profits of all sequestered livings, which they were to divide, as specified in the Act, between the wives and children of the ejected ministers, the approved preachers and schoolmasters, and the widows of godly ministers. For the maintenance of the new preachers the Commissioners could appropriate the revenues of all parochial benefices "which now or hereafter shall be in the disposing of Parliament or any other deriving authority from them." The funds obtained from these sources were to provide stipends not exceeding £100 per annum for the new ministers, and not exceeding £40 per annum for the new schoolmasters. Allowances not exceeding the yearly sum of £30 might be made to the widows and children of godly ministers. Pensions amounting to one-fifth of the value of the benefices were to be granted to the ejected ministers. The Commissioners obtained the control of large sums of money under this Act.
Full powers were granted to the Commissioners as a Committee of Indemnity to deal with all acts of high misdemeanour, oppression, and injury, the only appeal being to the Committee of Indemnity which sat in London. The provisions of this Act were strictly carried into effect. About 185 benefices passed into the hands of the Commissioners, and the vacant places were filled with vigorous substitutes. "The most conspicuous of the intrusive ministers was Vavasor Powell, a perfervid Welshman, who was able to speak to his countrymen in their native tongue and who, by the sincerity of his own life, gained numerous converts even in that unpuritanical land."[25] Under this Act charges of malignancy, either alone or in conjunction with other offences, were preferred against about twenty clergymen. "Delinquency " was charged in a few cases, "insufficiency" in a dozen cases; "plurality" was complained of in some instances; and a number of incumbents were charged with unbecoming conduct, chiefly drunkenness. Two Cardiganshire incumbents were charged with keeping alehouses. Itinerant preachers were appointed by the Commissioners rather than a settled ministry, and a great number of the parishes were provided with preachers selected from the humbler class of the population.
When the Act expired in 1653, Oliver Cromwell authorized the Commissioners to "go on cheerfully in the work as formerly, to promote these good things, and to protect men in the said work." This they did until the restoration of Charles the Second.
A.D. 1649.—Later, the third statute, "An Act for the admitting of the six Counties of North Wales to a general composition for their delinquency," was passed in 1649 "at the humble and earnest request of divers of the inhabitants of the said Counties." The total sum inflicted as fines upon these Counties was £24,000, made up as follows:—
| £ | |||
| On the | County of | Denbigh | 3,000 |
| " | " | Flint | 2,000 |
| " | " | Carnarvon | 4,000 |
| " | " | Merioneth | 3,000 |
| " | " | Montgomery | 3,000 |
| " | " | Anglesey | 9,000 |
| £24,000 |
to be paid to the Treasurers at War for the army. Commissioners were appointed in each county for the purposes of the Act, and there were provisions therein excepting certain classes of delinquents from any pardon or benefits. Compensation was also to be made to certain persons who had "done very good and faithful service to the Commonwealth, some of them having had their houses burnt, and their whole estates kept from them for divers years by the enemy (to their total ruin) for their affection to the Parliament."
A.D. 1659.—The fourth statute, passed in 1659, was "An Act for taking the accounts and redressing of grievances concerning the tithes and church livings in Wales, and for advancement of religion and learning there." Under the Commonwealth the executive power was vested in the Cromwellian "Council of State," which was empowered by this Act to appoint persons within the counties of Wales and Monmouthshire to take the accounts of the Act for the better propagation of the Gospel in Wales. The Commissioners were required to value the church livings, tithes, and ecclesiastical revenues; to inquire how many ministers and schoolmasters had been ejected since 1649, and how many were fit to be restored; to ascertain how many livings had become void since the said year; to whom the patronage belonged; how the respective churches and parishes had been supplied, and what were the qualifications of those who supplied the same, &c., &c. All grants or leases of any glebes or tithes belonging to any parsonage or vicarage with cure of souls, made by the patron and incumbent after February 22, 1649, were rendered absolutely void.
A.D. 1662.—Two years after the Restoration of Charles the Second, the famous Act for the Uniformity of public worship and for establishing the form of making, ordaining, and consecrating Bishops, priests, and deacons in the Church of England (13-14 Charles 2, c. 4) became law. It reenacted the Uniformity Act of 1 Elizabeth, c. 2 (1558-1559) and subsequent Acts of the same character. It aimed at obtaining universal agreement in public worship, and with this object the Book of Common Prayer was directed to be used in all parish churches and chapels within the Kingdom of England and the Dominion of Wales.
By section 27, the Bishops of Hereford, St. Davids, St. Asaph, Bangor, and Llandaff were to "take such order among themselves for the soul's health of the flocks committed to their charge within Wales," that the Book of Common Prayer should be translated into the Welsh tongue; that the whole Divine Service should be used in the Welsh language by the ministers and curates throughout Wales, where the Welsh tongue was commonly spoken; that printed Welsh and English copies of the Book of Common Prayer should be placed in the parish churches at the expense of the parish before May 1, 1664, so that "such as understand them may resort at all convenient times to read and peruse the same, and also such as do not understand the said language, may by conferring both tongues together, the sooner attain to the knowledge of the English tongue."
By this Act, which came into force on August 24, 1662 (and was not repealed until the reign of Queen Victoria) every minister, in order to be qualified to hold a living or to legally conduct any public religious service, was required, if not episcopally ordained before, to submit to be episcopally re-ordained; to declare his unfeigned assent and consent to everything contained in the Book of Common Prayer; to take the oath of canonical obedience; to engage not to endeavour to make any change or alteration of government either in Church or State; and to hold it unlawful, upon any pretence whatsoever, to take up arms against the King. The general provisions of this Act were to apply to the Dominion of Wales, as well as to the Kingdom of England. In answer to this Act, over two thousand ministers in England, and one hundred and six ministers in Wales, refused to subscribe to the required declarations, preferring ejectment from their livings, with imprisonment, poverty, and suffering. The Act of Uniformity of 1662 was followed by, and administered rigorously in conjunction with, the Conventicle Act of 1664 and the Five Mile Act of 1665. Legislation of this character had the effect which it generally produces. Wales remained for more than a century in a precarious condition in matters of religion (and adopting the words of the preamble to the Act of Uniformity) to the "great decay and scandal of the reformed religion and to the hazard of many souls."
A.D. 1692.—By section 15 of 4 William and Mary, c. 24, jurors in every county of the Dominion of Wales were required to have a qualification of £6 per year in estate, provided that any person could serve upon the Tales in every county if he had an interest therein of three pounds by the year. In England the figures were respectively £10 and £5.
A.D. 1693.—In this year the 55th section of 34-35 Henry 8, c. 26 (1542), which had limited the number of Justices of the Peace in any of the shires of Wales to eight, was repealed by 5-6 William and Mary, c. 4. The Crown was to have power to nominate and appoint any number of Justices of the Peace in Wales as was fitting and convenient, according to the ways and methods followed in such appointments in England. Notwithstanding the terms of the repealed section, the number of Justices therein prescribed had been frequently exceeded.
A.D. 1695.—A statute (7-8 William 3, c. 38) was passed in 1695 enabling the inhabitants of Wales to dispose of their property and personal effects by will. It abolished an ancient custom in Wales, whereby widows and children of persons dying there were entitled to a certain portion of the soods and chattels of their late husbands or fathers (called the "reasonable part"), notwithstanding any previous disposal thereof by will or deed, and notwithstanding also that a competent jointure had been made by settlement. By this custom, if a testator left neither wife nor child, the whole was at his disposal. If he left a wife without a child, or if he left a child or children only, his property was divided into two equal parts, one of which he could dispose of by will (called the "dead's part"), the other half belonged to the widow or to the child or children. If he left both wife and children, then the division was tripartite, the wife took one share (the "wife's part"); the child or children took another share (the "bairn's part"); while the remaining share could be disposed of by the testator in his last will and testament. This custom was equivalent to the law which is still retained in Scotland. By this Act, the restricted powers of bequest in Wales were abolished, and widows, children, and other relations of testators were wholly barred from any claim on his personal estate otherwise than was provided for by his will.
A.D. 1697.—By 1 Wiliam and Mary, c. 27 (1688) which abolished the Court of the Marches, it was directed that Judgments and Decrees passed before June 1, 1689, were not to be repealed. As that clause had become ineffectual, because no provision had been made authorising the Courts at Westminster and the Courts of the Great Sessions of Wales to execute or carry into effect any such judgments, an Act of 1697 (9-10 William 3, c. 16) gave powers to the King's Chancery, the Court of Exchequer, and his Majesty's Court of Great Sessions, to issue execution upon every judgment so made, and to review, affirm, reverse, or rehear the same.
A.D. 1698.—In 1698, by 11-12 William 3, c. 9, the provisions of two general Acts for the prevention of frivolous suits (namely, 22-23 Charles 2, c. 9, s. 9, and 43 Elizabeth, c. 6) were extended to the Courts of Great Sessions for the Principality of Wales, so that in actions of trespass, theft, battery or other personal actions, where the damages were found to be under 40s., the plaintiff was not to recover more costs than the damages so found. Sheriffs in Wales were not to hold prisoners to special bail in small actions because it was oppressive and vexatious.
A.D. 1713.—In this year the Act for taking away mortuaries within the Welsh dioceses was passed (13 Anne c. 6). Its provisions have already been noticed.[26]
A.D. 1715.—In the first year of George the First it was made lawful for his Majesty to grant the Crown regalities and lands in North and South Wales and Cheshire to the Prince of Wales, in such manner and form as the Principality of Wales and Earldom of Chester had formerly been granted to the Princes of Wales.
A.D. 1716.—An Act (3 George 1, c. 15) was passed in this year for the better regulating of the office of sheriffs. By section 20, sheriffs in Wales were directed to take the old form of oath on their accession to office, and not to adopt the new form of oath provided for sheriffs in English counties, and by section 22 they were directed to submit their accounts to the Auditor of Wales. These sections were repealed by the Sheriffs' Act of 1887. After the passing of 1 Williamand Mary, c. 22 (1688), which took away the Court of the President and Council of the Marches of Wales, sheriffs were nominated yearly by the Justices of the Great Sessions of Wales in their respective circuits. After 1845, by the operation of 8 and 9 Victoria, c. 11, the Welsh sheriffs were nominated and appointed at the same time and place as the sheriffs for the English shires, and by the Sheriffs Act of 1887 (50-51 Victoria, c. 55, s. 31) the counties of Wales were placed on the same footing as the English counties in respect of the law relating to sheriffs and under-sheriffs.
A.D. 1721.—By 8 George 1, c. 25, s. 6, Judges and officers of the Courts of Great Sessions in Wales were required to enter their judgments in the Court records, stating the time when so entered.
A.D. 1730.—Owing to the evil practices and abuses which had arisen before 1730, in the summoning of jurors, an Act (3 George 2, c. 25) was passed for the better regulation of juries. Section 9 thereof regulated the practice of summoning jurors in Wales.
A.D. 1732-3.—It was directed by section 3 of 6 George 2, c. 14, that the proceedings in the Courts of Great Sessions were to be in the English language. This followed an Act (4 George 2, c. 26, 1730-1) establishing the use of the English language in courts of justice within England and Scotland, and remedying the mischiefs arising from the proceedings in those courts being carried on in an unknown language.
In England, for many centuries, Latin had been the language of voluminous official and judicial records, and it was not dislodged from this position until 1731. French slowly supplanted Latin as the literary language of the English law, and "legal proceedings were formerly all written in Norman or Law French, and even the arguments of counsel and decisions of the Court were in the same barbarous dialect, an evident and shameful badge, it must be owned, of tyranny and foreign servitude."[27] The Acts of Parliament were written in French until the fourth year of the reign of Henry the Seventh, but they were exclusively printed in English after that date. The Act of 1730-1 enacted that the records of the Courts, as well as all other legal proceedings, were to be in the English tongue and language only, and not in Latin or French, or any other tongue or language whatsoever. In the Courts of Wales it had been previously ordained by 27 Henry 8, c. 26, s. 20, that the English language was to be used, and not the Welsh language. There is very little evidence available at present to determine whether Welsh was used in the Courts of Great Sessions, either in the oral or written proceedings, to any extent whatsoever.
The statute of 1732-3 cleared up the doubts which had arisen upon the application of the Act of 1730-1, and English was to be used thenceforth in all the Courts in Wales.
A.D. 1746.—A very important clause affecting Wales was introduced in an Act (20 George 2, c. 42) passed in 1746 to enforce rates and duties upon houses, windows, and lights. It was declared by the 3rd section that where "England" only should be mentioned in any Act of Parliament it should be deemed to comprehend Wales and the town of Berwick-upon-Tweed, a town which was originally part of Scotland. Although the other portions of this Act have been repealed this clause still remains law. We find also in the 3rd section of 7-8 George 4, c. 53, passed in 1827, that in all Acts of Parliament relating to the revenue or excise, Wales was to be included where "England" or "Great Britain" was mentioned. This was re-enacted in 1890 by 53-54 Victoria, c. 21, s. 38 (1).
A.D. 1758.—In an Act of 1758 for the relief of debtors (32 George 2, c. 28), the 11th section provided that the Justices of the Great Sessions in Wales were to hear and determine in a summary manner complaints as to any abuses arising where gaolers, bailiffs, and others employed in the execution of legal process had in their respective offices been guilty of misconduct towards prisoners under arrest.
A.D. 1767-1772.—By the Act (8 George 3, c. 14, 1767-8) Parliament directed that the sheriffs of the several counties in Wales were to provide necessary lodging and other accommodation for the Justices of Great Sessions when on circuit, and an allowance not exceeding ten pounds for each county and for each sessions, was to be made by the Auditor, out of the land revenues of the Crown derived from the Principality of Wales, to the sheriffs for the said expenses. By a further Act (12 George 3, c. 30, 1772), owing to the considerable surplus accruing from the stamp duties appropriated for the payment of the salaries of the Welsh Judges, it was ordered that increases of salary should be made from and after April 5, 1772, to the Judges, but subject to a reasonable abatement if the surpluses did not continue and were insufficient.
A.D. 1773.—An Act (13 George 3, c. 51) was passed to discourage the practice of commencing trifling and frivolous suits in the Courts at Westminster upon causes of action arising within Wales, and of trying the said actions in the nearest adjoining English county to that part of the Dominion of Wales in which they had arisen. The origin of the Courts at Westminster assuming this jurisdiction over causes in Wales, and directing the trial in the adjoining English county, does not distinctly appear. But undoubtedly this practice had existed for a considerable time, and was firmly established; in fact, it was said by Lord Ellenborough, C.J., in 1814 (see Goodright against Williams, 2 Maule and Selwyn's Reports, p. 274), to have been a practice which had originated in the common law, and to have been followed time out of mind. The practice was to try all issues arising in South Wales in Herefordshire, and actions from North Wales in the county of Salop. It was a practice which was the subject of considerable controversy, and there is a very learned and elaborate argument on the point in Hargreave's Law Tracts. We have already pointed out that section 6 of 26 Henry 8, c. 6, provided in 1534, that felonies and serious criminal offences arising within the Lordships Marchers of Wales were to be tried in the next adjoining English county, which provision was afterwards confirmed by the 85th section of 34-35 Henry 8, c. 26, but the general practice in civil suits was said to have prevailed (see Ambrose against Rees, 11 East's Reports, p. 370) even before the time of Henry the Eighth. How this practice was affected by the jurisdiction of the Courts of Great Sessions is a matter upon which at present, owing to the absence of material information, we are unable to throw much light. But the truth most probably is that the assumption of the English Courts to exercise this jurisdiction, and to continue this practice, was founded on mere usurpation, and, like many other usurpations of jurisdiction, was supported by legal fictions. This Statute of 1773 provided that, after January 1, 1774, when actions arising within Wales were brought in any of his Majesty's Courts of Record outside Wales, and the plaintiff recovered a debt or damages under £10, no costs were to be given to him, and the defendant was to be entitled to a non-suit unless the Judge certified that the cause was proper to be tried in England, or that a question of title was involved. (The limit of £10 was subsequently altered in 1824 to £50.) Welsh Judges were authorized to appoint a deputy in certain cases. Special juries were to be struck in the Courts of Great Sessions as in the Courts at minster, the party applying for a special jury being required to pay the fee for striking such jury, being not more than one guinea to each special juror for such service, except in causes where a view was had. Welsh Judges were empowered to appoint persons to take affidavits concerning proceedings in their circuit, but no Commissioner authorized to take affidavits could do so during the time for holding the Great Sessions. The Justices of Great Sessions might authorize any person to take recognizances of bail. Other matters relating to procedure are dealt with in this Act, which concluded by ordering that in all cases where penalties were fixed by any statutes, and which were directed to be recovered in the Courts at Westminster, they might be recovered in the Courts of Great Sessions.
A.D. 1793.—An Act in 1793 (33 George 3, c. 68) further dealt with and remedied certain inconveniences which were found to exist in proceedings in the Courts of Great Sessions and in the County Courts of Wales. In cases where judgments had been obtained in the Courts of Great Sessions, and the persons or effects could not be found within the jurisdiction of those Courts, any Court at Westminster might issue execution. Clauses in the Act of 1542 relating to the Sheriffs County or Hundred Courts were repealed.
A.D. 1809.—By 49 George 3, c. 127, s. 5, in 1809, a further augmentation of four hundred pounds as salary was made to the Chief Justice of Chester, to the Second Justice of Chester, and to each of the Justices of the Great Sessions for the Counties of Wales.
A.D. 1812.—By the Act (52 George 3, c. 155), in 1812, which applied to England and Wales, certain statutes relating to religious worship and assemblies and persons teaching or preaching therein were repealed, and persons affected thereby could claim exemption upon producing a certificate of having made and taken certain oaths and declarations required by this Act. By section 10, the penalty for producing any false certificate was fixed at £50, which penalty could be recovered in WALES at the Courts of Great Sessions.
A.D. 1824.—The business of the Courts of Great Sessions had greatly increased before 1824, and it was found from experience that suitors experienced many inconveniences from the delays occasioned by the want of powers in the Welsh Judges to make alterations in the practice, in order to assimilate the procedure to the Courts in England. Therefore an Act (5 George 4, c. 106) was passed in that year enlarging and extending the powers of the Judges in the several Courts of Great Sessions in Wales and amending the laws relating to the same. Until the abolition of these Courts, the uniform course of practice which was followed was regulated mainly in accordance with this Act, and such of the preceding Acts as were applicable. It is not necessary to refer here to all its provisions, but some may be noticed. Before this Act, whenever a suit was commenced in any Welsh county every stage of the legal proceedings had to be followed in that county; and all further proceedings, whenever the Sessions for such county ended, were suspended until the ensuing Sessions. By the 11th section the Welsh Judges were empowered, when Courts were sitting in any county, to make rules and orders in suits depending in the other counties. By the 12th section, when the Courts were not sitting in Wales, the Welsh Judges were authorized, if necessary, to make orders in London or other places outside the jurisdiction. By the 13th section, writs could be issued from one Welsh county to another. By the 19th section, the Act of 1773 relating to the trial of Welsh causes at the Assizes in the next English county was repealed, and in lieu thereof it was provided that if an action were brought wherein the plaintiff did not recover £50 he was to be non-suited and the defendant was to recover costs against the plaintiff, unless the Judge certified that there was a title to the land in question, or that the case was proper to be tried in such English county. The intention of this clause was to prevent the parties from resorting to the English Courts in actions under £50, thereby materially increasing the business of the Great Sessions. By the 29th section, the qualifications of jurymen of the Courts of Great Sessions were fixed to be an estate of freehold or copyhold of £8 yearly value or upwards, or any life interest or estate for the term of ninety-nine years of the yearly value of £15.
The WELSH Judicature.
A.D. 1830.—On July 23, 1830, an Act (1 William 4, c. 70) was passed to put an end to the separate jurisdiction for the Principality of Wales, and to make more effectual provision for the administration of Justice in England and Wales.
As this Act abolished the last vestiges of distinction in legal procedure between England and Wales, it is proposed to summarize the leading characteristics of a system of jurisprudence which had lasted in the Dominion of Wales for three centuries. It was in many respects superior to that prevailing in England, besides being familiar to the Welsh people, and adapted by long use to their habits and customs.
It was brought into permanent existence, as already stated, by the Act of Henry the Eighth, in 1542, promulgated upon the basis of reports made by Commissioners after inquiries on the spot, and it was too favourably said by Barrington "to contain a most complete code of regulations for the administration of justice, framed with such precision and accuracy that no one clause of it hath ever yet occasioned a doubt or required an explanation." It received the approval of two of the greatest of English jurists, Lord Coke and Lord Bacon. Coke refers to the Welsh Courts as the "excellent, venerable variety of seats and courts of justice, with their proper jurisdictions, according to the laws of England—the golden metwand, whereby all men's causes are fully and evenly measured"; and it was observed by Lord Bacon that they were founded by an Act that had required no further explanation!
But in the early part of the nineteenth century, when public attention was given to the very necessary reforms that were demanded in the technical absurdities and vexatious requirements of the English laws, the special judicature of Waleswas (probably quite unnecessarily) included in the scope of the proposed innovations.
In 1780, Burke had in his "plan for the better security of the Independence of Parliament, and the economical reformation of the civil and other establishments" included a Bill "for the more perfectly uniting to the Crown the Principality of Wales and the County Palatine of Chester and for the more commodious administration of justice within the same." He said, in the House of Commons, on December 18, 1780, that he thought that the addition of a judge to each of the English Courts at Westminster would be sufficient for Wales, but his original plan was to abolish five out of the eight Welsh judgeships which existed, and to throw the counties into districts. His opposition to the Welsh judicature was on account of expense, and not upon general grounds. In 1798, a Select Committee of the House of Commons on finance in Courts of Justice recommended that the four Circuits in Wales should be amalgamated.
Another Select Committee was appointed by the House of Commons to examine into the administration of Justice in Wales. This Committee made an interim report in 1817, and in 1820 further evidence was submitted by it, without any report being presented. In 1821 they made a final report. This was not adopted, but the Act of 1824 (which has already been noticed), without disturbing the Courts, established a uniform course of procedure. After a long and heated controversy and many debates in both Houses of Parliament, the statute of 1830 was passed, terminating the authority and jurisdiction of the Courts of Great Sessions.
Wales had enjoyed its own separate judicature, with its own technical machinery, for the most part independent of the London Courts. Writs were issued, actions commenced and decided without any reference to the Courts at Westminster.
The four Welsh circuits in 1817 contained altogether, exclusive of the County of Chester, a population of 611,788 persons. For these circuits, eight paid judges were required, but they had no right to any pension on retirement. The salary of the Chief Justice of Chester, at the end of the history of the Courts of Great Sessions, was £1,630 per annum; the second judge at Chester received £1,250 per annum, and the remaining Welsh Judges were paid £1,150 per annum respectively, and were entitled also to other fees. They were eligible to sit in the House of Commons, and to hold office under Government during the pleasure of the Crown. Lord John Russell complained in the House of Commons in 1820 that, as the Welsh Judges were permitted to sit in that assembly, their posts were looked upon as retainers or rewards for their party support. It was objected against them that they used their abundant leisure to practise at the English Bar, and that as twelve judges were enough for England, eight were too many for Wales. Between 1542 and 1830, 217 Judges of the Welsh Circuits had been appointed, out of which number only thirty were natives of Wales and Monmouthshire. It was also alleged that sometimes hypothetical cases from Wales, stated under feigned names, were submitted for opinion to the Welsh Judges when acting as counsel in England, but the answer made to this allegation was that they refused to give their opinion unless they received an absolute assurance that the case did not arise within their jurisdiction. It was also complained that the Welsh Judges were sometimes oddly selected, and that it did not add to the legal business to have the same Judge sitting for a great number of years in the same courts. Burke was very severe in his criticism of the Welsh Judges, and nicknamed them the "yellow admirals of the law." Lord Brougham, in his "Recollections of a Welsh Judge," says that "there was a great charm about the old Welsh Circuits. The whole appearance of the Court was different from an English Court; the habits of the people, and even their dress, was distinct; and then, as in most cases the witnesses could not speak English, and had to be examined through an interpreter, you might well fancy yourself in a foreign country. Indeed, in addresses to the jury, whether by the Bar or from the Bench, it was but too obvious that the majority frequently understood but little of what was said to them."
The Courts sat only in spring and autumn, the circuits lasting about six weeks. Each circuit court was supreme within its own jurisdiction, resulting in the establishment of a peculiar standard of practice which alone was acknowledged as having authority within its own district. The Judges had not the power to compel the attendance of witnesses residing out of the counties within their immediate jurisdiction, and they were compelled by statute to sit six days in each circuit town. The course of business on each circuit was that on the Monday, the first day, the Court was opened after the Judges came into the circuit town. On Tuesday the Judges went to church at twelve, and afterwards charged the grand jury. On Wednesday, the "do nothing at all day," any adjourned cases were disposed of. On Thursday Crown cases and trials of prisoners were proceeded with. On Friday new issues were tried; and on Saturday morning a Court was held for any other business, and in the evening the Judges left for the next circuit town. When the two Judges differed in their opinions, no judgment was pronounced, and there was no appeal in equity matters except to the House of Lords, or by writ of error in matters of law to the King's Bench. Applications for a new trial had to be made immediately (to the same Judges who had tried the cause) at the close of the first trial. All barristers of the English Inns of Court were entitled to practise in these Courts, but no attorneys except those admitted by the Court for each circuit. The Northern and Oxford Circuits of the English Bar supplied the Chester and South Wales Circuits with counsel. It was not the professional usage or etiquette for King's Counsel to practise in Wales. Junior counsel practised in every branch—civil, criminal, and equitable. There were eighty attorneys in the Carmarthen district.
In the Courts of Great Sessions both law and equity cases were heard and determined. It was stated that proceedings in a suit at equity were, in consequence of the shortness of the circuit, more dilatory and prolix even than in the Court of Chancery of England. It is difficult to say how equity came to be administered in these Welsh Courts, The statute of Henry the Eighth does not specifically confer any equitable jurisdiction on the Justices of Great Sessions. The Court of Chancery in England was open to Welsh suitors. Still, there was in the Welsh Courts a concurrent jurisdiction between these two branches of jurisprudence that was not brought about in England until the Judicature Act of 1875.
Criminal business was also dealt with by the WelshJudges on circuit, but it frequently happened that the Welsh Judges had not the same opportunities for acquiring and preserving that experience of criminal law which the English Judges enjoyed in so eminent a degree, and the constitution of the Welsh Courts did not afford to the accused persons or suitors the advantages which arise out of a varied succession of Judges. If a difficulty arose in a criminal trial, the Welsh Judges drew up a case, signed it, and sent it for the opinion of twelve of the Judges of England, who always attended to it, but under protest that they were not bound to take it into consideration.
During the years 1812 to 1823 the average number of criminal cases tried yearly before the Courts of Great Sessions was one hundred. The average, in the same period, of Bills of Chancery and decrees was eighty-five per annum; and of common law causes, one hundred and nineteen per annum.
There was a Chamberlain holding the Circuit Seal in each circuit, and an Auditor of Wales who audited and received the fines and revenues, paying the same into the Exchequer at Westminster. It was the Auditor's duty to superintend and collect the land revenues, to audit the accounts, the land taxes, assessed taxes and property taxes, and to pass the Sheriffs Accounts. The audits were held for the respective circuits at St. Asaph, Conway, Carmarthen, and Brecknock. An Attorney-General and Solicitor-General, possessing the same privileges as the holders of the similar offices in England (although no mention is made of them in the Act of Henry the Eighth), were appointed on each circuit. No indictment in a criminal matter could be presented until the Attorney-General affixed his signature thereto.
The Court officials were reported to have been generally conversant with the Welsh language.
The bulk of the evidence given by lawyers who were acquainted with the Welsh circuits was in favour of the retention of the system, subject to certain reforms. Lord Mansfield (who was at one time Chief Justice of Chester) said that it seemed to him to be a great advantage to the Welsh people that they should have the opportunity of trying their disputes at home at very little expense. Mr. Oldnall Russell, practising on the Carmarthen Circuit, maintained that a Judge, who knew something of the manners and customs of the Welsh people and their peculiar habits and dispositions, would certainly have an advantage over Judges who were not so informed.
Mr. Sergeant Heywood, another practising counsel, said that there were in Wales certain peculiar circumstances of a local nature which supported the necessity of a separate jurisdiction. There were little shades of difference between the English and Welsh character, and Judges who went the circuit once only, could not find themselves perfectly conversant with Welsh manners and feelings, and it was therefore better for the Welsh people to have Judges who came often amongst them. Further, he maintained that although in many instances the proceedings had to be held in the native language of the country, the business was conducted with such regularity and regard to justice that the country was satisfied with the system.
The Commissioners summed up their report in favour of the abolition of the Welsh system by stating "that they could not but think that, however well adapted those Courts might have been in their origin to the circumstances of a country newly subdued and in which the English language was at that time almost unknown, having little or no means of communication with the seats of justice in England, and liable to all the jealousies inspired by recent enmity, yet the lapse of years and the great changes that had taken place in the condition of Wales had removed most, if not all, the reasons on account of which the institution of local jurisdictions was resorted to in preference to the established tribunals of the Country."
It must be noted here that the abolition of the Welsh Courts of Great Session was not brought about at the instance of the main body of the Welsh people, or of Welsh suitors, but at the instance of the landed gentry of Wales. The wishes of the humble Welsh suitors were not so much regarded as the ambition of the nobility and landed proprietors of that time to make Wales a part of the judicial system of England. There was considerable danger in the alteration, for it was a change, from a fairly efficient method of judicature which had grown after three centuries of useful working into a national institution easily capable of being reformed, to the acknowledged defects and notorious costliness of the English system. For sixteen years, that is, until the introduction of the modern County Court system in 1846, there were no common law Courts in Wales for deciding cases of small amounts, and equitable matters had to be dealt with in the tortuous maze of the English Chancery Court as then existing. It is true that the old system of County Courts established during the reign of Edward the First, remained in Wales, but the jurisdiction of these ancient County Courts did not exceed 40s., and they were presided over by the under-sheriff, who was a judge for one year, and an advocate, when his yearly term of office expired. In these County Courts there were considerable grievances, so great, for instance, that in 1818 a meeting of the people of the county of Pembroke was held to discuss them, and it was then resolved thereat that the increase of litigation was destructive of public tranquillity and highly injurious to their county, and that the law of the land was made the instrument of the greatest oppression on the lowest orders. In the Carmarthen County Courts during nine years there were 10,912 pleas, and in the baronial courts of the same county, 3,024 pleas, giving plenty of work to the attorneys.
The long establishment of this separate jurisdiction shows that Wales had until 1830, as Scotland still has, a provincial judicature which distinguished it from any other part of the United Kingdom; a law system adapted to its special needs and circumstances, expeditious, cheap, and in several marked features excelling the English system.
The Act of 1830, which put an end to the Welsh system, provided for an additional Justice for each of the three English Common Law Courts, viz., the King's Bench, the Common Pleas, and the Exchequer of Pleas. The jurisdiction of the English superior Courts at Westminster was made to extend over Wales and Chester, and the Courts of Great Sessions were abolished. The Act came into effect on October 12, 1830. All suits in the Welsh Courts, both in law and equity, were transferred to the Courts of Chancery or Exchequer in London. Welsh attorneys were to be admitted as attorneys of the Courts at Westminster. Assizes for the trial of criminal and civil matters were henceforth to be held in the Welsh counties and the county of Chester as in the Counties of England. Out of the consolidated funds compensation was given to the Welsh Judges and persons affected by the abolition of their Courts. The records of the Courts were to be transferred to the Clerks of the Peace of the several Counties. The existing salaries and pensions of the English Judges were fixed by this measure.
Thus the present system of holding Assizes in Wales and Chester was inaugurated. In establishing the new Welsh Circuit two Judges were appointed under the King's Commission to hold the Assizes in Wales, one taking the six counties of South Wales, the other going to the North Wales counties both meeting at Chester for the purpose of holding the Assizes there. There are now two divisions of the Welsh Circuit, forming the "South Wales and Chester Circuit," and the "North Wales and Chester Circuit." Since 1872, owing to the great increase of legal business in Glamorganshire, it has been necessary for both Judges to meet in South Wales as well as at Chester, so both divisions of the Welsh Circuit now meet at the latter city and in Glamorganshire for the holding of the Assizes.
A.D. 1832.—In 1832, an Act to amend the representation of the people in England and Wales (2-3 William 4 c. 45), better known as "the Reform Act," was passed to correct divers abuses that had long prevailed in the choice of members to serve in the House of Commons; to grant electoral privileges to large, populous, and wealthy towns and to deprive many inconsiderable places of the right to return members; to increase the number of Knights of the shire and to extend the elective franchise.
Wales was at that period chiefly an agricultural country, but in Glamorganshire and Monmouthshire the great industries which now exist were beginning to develop, bringing about great increases in the population. Under the Reform Act Wales obtained five new members, making thirty-two members instead of the twenty-seven members provided for by the Act of 1535. By section 4, Merthyr Tydfil was created a new borough with the right of returning one member; by section 8, certain places as scheduled in the Act were to have a share in the elections for shire towns and certain boroughs; one additional county member was given to Glamorganshire, one member was given to Swansea and its contributory boroughs, one additional county member was given to Carmarthenshire and Denbighshire, and one additional county member to the county of Monmouth. By subsequent general Acts relating to the Parliamentary franchise, these electoral arrangements have been completely altered. In 1867, Merthyr Tydfil received an additional representative. In 1885, Beaumaris, Brecknock, Haverfordwest, Cardigan and Radnor Boroughs were disfranchised; Glamorganshire obtained the right of sending five members to the House of Commons, and an additional representative was given to Monmouthshire and Swansea.
Legislation for the Established Church in Wales.
One of the results of the vigorous efforts for the improvement of public institutions which followed the Reform Act of 1832 was the appointment of a standing body now known as the "Ecclesiastical Commission," invested with very important powers. Under the operation of the Ecclesiastical Commission extensive changes were made in the distribution of the revenues of the Church of England in Wales.
A.D. 1836.—In 1836, an Act of great consequence became law. It recognized the special needs of the Welsh people as to the performance of ecclesiastical duties in the Welsh language, and is also highly important because it was the first instance of separate legislation in Church matters for Wales during the nineteenth century. The Act (6-7 William 4, c. 77) recites that, in 1835, two separate commissions were issued, to consider the state of the several dioceses in England and Wales, and that the Commissioners had made four several reports bearing date respectively the 17th of March, 1835, the 4th of March, the 20th of May, and the 24th of June, 1836. The Commissioners had recommended in these reports (inter alia), that upon the first avoidance of the sees either of Saint Asaph or Bangor, the Bishop of the other see should become the bishop of the two sees, which were to be united, and that thereupon he was to become seized and possessed of all the property, advowsons, and patronage belonging to the see so avoided.
The Act of 1836 first established the permanent body now known as the "Ecclesiastical Commissioners of England," having the control of considerable funds derived from a rearrangement and suspension of ecclesiastical revenues. One central corporation was thus substituted for the many local and independent corporations of the Church, so far as the management of property was concerned a constitutional change of great importance, regarded as having made a serious breach in the legal theory of ecclesiastical property. The Commissioners were directed to prepare a scheme best adapted to prevent the appointment of any clergyman not fully conversant with the Welsh language to any benefice with cure of souls, in any parish in Wales, the majority of the inhabitants of which did not understand the Welsh language.
A.D. 1838.—The Pluralities Act of 1838 (1 and 2 Victoria, c. 106) repealed that part of the Act of 1836 relating to the scheme propounded by the Ecclesiastical Commissioners as to preventing the appointment of any clergyman not fully conversant with the Welsh language to certain benefices in Wales, and in lieu thereof provided that the Bishops of the Welsh dioceses could refuse institution or licence to any spiritual person who, upon due examination and inquiry, should be found unable to preach, administer the sacraments, perform other pastoral duties, and converse in the Welsh language. A right of appeal to the Archbishop of Canterbury was preserved to such spiritual person against the decision of the Bishop, and by section 105 the provisions of the Act were made to apply to the appointment of curates within the several Welsh dioceses in cases where the ecclesiastical duties were not satisfactorily performed by reason of insufficient instruction in the Welsh language. In 1885, by the Act amending the Law relating to Pluralities (48-49 Victoria, c. 54) (which was to be construed as one with the Act of 1838), the term "ecclesiastical duties" in the case of benefices in Wales and the county of Monmouth was defined to include such ministrations in the Welsh language as the Bishop should direct to be performed, but so that not more than one Welsh service on every Sunday should be required, and provision made for the English-speaking portion of the population. In 1886, the Marquis of Abergavenny presented a clergyman, who could not speak Welsh, to a rectory in the county of Monmouth, within the diocese of Llandaff. The Bishop of Llandaff (Dr. Richard Lewis) thereupon commissioned certain persons to hold an inquiry as to whether the parish required a pastor with a knowledge of Welsh. The report was in the affirmative, and the Bishop refused to admit or institute the nominated clergyman. Thereupon the patron brought an action in the nature of a "quare impedit" against the Bishop for such refusal. It was held by Baron Huddleston (Law Reports, 20 Q.B.D., p. 460) that the "due examination and inquiry" required by the 104th section of the Pluralities Act, 1838, meant examination and inquiry as to the clergyman's knowledge of the Welsh language, and that the Bishop was justified in his refusal. In this case a very interesting reference was made to the case of Albany v. The Bishop of St. Asaph, decided in the time of Queen Elizabeth, (Leonards Reports, p. 31), to the effect that it was a good ground of refusal by a Bishop to institute a clergyman, if he could not speak Welsh, in a parish where the parishioners did not understand English, for he could not instruct his flock according to his duty and charge.
A.D. 1840.—In 1840, an Act (3-4 Victoria, c. 113) was passed to carry into effect the fourth report of the Commissioners of Ecclesiastical Duties made on June 24, 1836. It enacted that all the members of chapter (except the dean) in the cathedral churches of Saint Davids and Llandaff should be styled canon, and that there should be two canons in each. After the passing of this Act no appointment in these cathedral churches or to the collegiate church of Brecon should convey any right of title whatsoever to any endowments then belonging to such office. The canonries of Saint Davids were to be in the direct patronage of the Bishop, and the whole revenues divided into parts, between the dean, the canons, and the archdeacon of Cardigan; due provision was to be made out of the endowments of the collegiate church of Brecon for the archdeaconries of Carmarthen and Brecon. The archdeacon of Llandaff was to be dean of the cathedral church, and the corporate revenues of Llandaff were to be divided between the Bishop, the dean, and canons. All lands and endowments belonging to Saint Davids, Llandaff, and the collegiate church of Brecon vested absolutely in the Ecclesiastical Commissioners for England, who were entitled to make therefrom provision for the College at Lampeter, and to provide incomes for the various dignitaries.
A.D. 1841.—In 1841, the provisions of the Act of 1840 relating to the division and application of the revenues of the chapters of St. David's and Llandaff and the collegiate church of Brecon were repealed by 4-5 Victoria, c. 39, s. 14. By the 28th section thereof nothing in the Act was to apply to the dioceses of St. Asaph and Bangor, which remained in a state of suspended animation under the temporary provisions of previous Acts of Parliament (5-6 William 4, c. 30; 6-7 William 4, c. 67; and parts of 2-3 Victoria, c. 55). These temporary provisions suspending appointments in the latter dioceses were extended until August 1, 1842, but the Bishop of Bangor was to be permitted to make certain appointments and perform his ordinary episcopal duties in the meantime.
A.D. 1842.—A measure (5-6 Victoria, c. 112) followed in 1842 suspending any appointments to ecclesiastical preferments in the dioceses of St. Asaph and Bangor until October 1, 1843. It recited and continued the two Acts passed in 1835 (5-6 William 4, c. 30) and 1836 {6-7 William 4, c. 30), which had suspended appointments generally until Parliament should have had time to consider the reports of the Commissioners appointed as to ecclesiastical duties.
A.D. 1843.—In 1843, by 6-7 Victoria, c. 77, the suspensory measures relating to the dioceses of St. Asaph and Bangor were repealed, and the general Acts establishing the Ecclesiastical Commission were extended to these sees. Four resident canons were to be appointed in each of the Welsh dioceses of St. Asaph, Bangor, St. Davids, and Llandaff. These canonries were to be in the direct patronage of the Bishops. Two of them were to be permanently annexed to the archdeaconries in the respective dioceses. Houses of residence were to be provided for the canons of St. Asaph, Bangor, and Llandaff, and also for the Dean of Llandaff. The archdeaconry of St. Asaph was no longer to be held by the Bishop of St. Asaph, and the archdeaconries of Bangor and Anglesea were to be dissevered from the bishopric of Bangor. The archdeaconry of Llandaff was to be separated from the deanery of Llandaff. Out of the proceeds of the revenues of ecclesiastical estates in the Principality of Wales, vested in the Ecclesiastical Commissioners, provision was to be made for the maintenance of a clergyman, being a native of the Principality, to officiate in Welsh in a church or chapel within London or Westminster or the suburbs for the performance of divine service according to the Church of England. More favourable provisions were made for St. David's College at Lampeter.
A.D. 1847.—On February 10, 1847, a Commission was appointed to consider the state of the bishoprics in England and Wales. This Commission reported, and some of its recommendations became law in the same year (10-11 Victoria, c. 108). The dioceses of St. Asaph and Bangor were continued as separate bishoprics, and the bishopric of Manchester was founded. The Commission had recommended taking away one bishop from North Wales and joining the sees of St. Asaph and Bangor, and had recommended also that one bishop should be taken away from South Wales, and that Llandaff should be united with the see of Bristol. There was a strong feeling displayed in Wales against these proposals, with the result that these particular recommendations were omitted from the Act. Under section 2, a very important provision relating to the constitution of our country became law, viz., that the number of Lords Spiritual then sitting and voting as Lords of Parliament was not to be increased by the creation of the new bishopric of Manchester. A protest was also entered in the House of Lords against the procedure established by this section for filling up vacancies among the Lords Spiritual. This protest was made by a few of the lay and spiritual lords, because "it constituted a dangerous precedent, and was at variance with the principle of an hereditary peerage, and contrary to the privileges of the Lords Spiritual and Temporal."
A.D. 1863.—By an Act (26-27 Victoria, c. 82) the Welsh Bishops were empowered to make provision for English services in certain parishes of Wales. As the law stood, in all parishes in Wales in which Welsh was the tongue commonly spoken by the people the whole Divine Service was required to be used and said in the British or Welsh tongue. It was provided that wherever any ten or more inhabitants in any parish, district, or place in Wales should certify in writing to the Bishop that they were desirous of having Divine Service performed and the Sacraments administered in English, and undertook to provide a building to be used as a chapel for the same and a spiritual person to officiate therein, then the Bishop was to be entitled to license such chapels and ministers when nominated by the incumbent of the parish. If the incumbent refused or failed to nominate the minister, the Bishop could do so. The licensed building was not to be a parochial chapel, except with the consent of the incumbent, whose rights as to fees and emoluments were not to be affected by the passing of this Act.
A.D. 1837.—By section 23 of 7 William 4 and 1 Victoria, c. 22 (1837), regulating the registration of marriages, it is provided that in all places where the Welsh tongue is commonly spoken the solemn declaration to be used in the celebration of marriages before the Registrars is to be truly translated into the Welsh tongue and furnished to every Registrar throughout Wales, and that it is lawful to use that translation in all places where the Welsh tongue is commonly spoken.
The Turnpike Road Acts in SOUTH WALES.
A.D. 1844.—An Act (7-8 Victoria, c. 91) to "consolidate and amend the laws relating to Turnpike Trusts in South Wales" became law in 1844. Its title does not indicate the fact that stormy events led to its enactment. In 1789, the South Wales Association for the improvement of roads had been formed at Swansea, its principal object being to obtain a complete amendment of the highway road between the New Passage over the Severn at Newnham and Hubberston in Pembrokeshire, with an improvement of the road from Chepstow to Gloucester, in order to provide good communication between South Wales and London. During the reign of George the Third a number of private Acts of Parliament were successfully promoted by persons who were interested in Turnpike Trusts, giving them statutory powers to make and regulate roads. The Trustees of these Turnpike Roads in South Wales were authorized to raise moneys by tolls sufficient to pay the interest upon the debts incurred in making the roads and keeping them in repair. In order to raise this money tolls had been largely increased; payments of these charges were frequently demanded; side-bars on the roadsides had been multiplied improperly, and every means adopted by the trustees to swell their revenues. Strangers to the localities, who were professional toll renters, became tenants of the gate houses, farming the tolls, and exacting the utmost from the discontented public. Many practices were followed by these persons which no law could justify. In Carmarthenshire alone there were twelve different Trusts, and although the amount of the tolls was limited by the statutory powers given, there was no such limit as to the number of gates at which they could be levied on the public. No reason existed why the Turnpike Trustees should not, if they so desired, have established a turnpike gate and demanded a toll at intervals of one hundred yards throughout the county of Carmarthen. They interpreted and administered the law as they thought fit, and there was no appeal from their decisions.
Resistance to the payment of such tolls broke out in Carmarthenshire in the spring of 1843 on the riotous demolition of some of the turnpike gates. The Trefechan gate in the Whitland Trust was first attacked. From this district the resistance spread to the other counties of South Wales. The leader of the movement concealed his identity under the name of "Rebecca"; his followers called themselves the "Children of Rebecca" in allusion to the Scriptural text, "Let thy seed possess the gates of those which hate them." Parties of five or six hundred men, mostly mounted, armed with pickaxes, sledges, hatchets, and guns, rioted through the counties of Carmarthen, Pembroke, Cardigan, and parts of Radnor, Brecon, and Glamorgan. They were headed by their leader, who was mounted; they were disguised in female attire, with blackened faces. So well did the rioters keep counsel and so secretly did they manage their forays that, in spite of the efforts of the local magistrates, assisted by large bodies of military sent into the district, no effectual check was put upon their proceedings for months.
Although the Rebecca riots are chiefly remembered in connection with Wales, it is extremely interesting to note that nearly one hundred years earlier similar disturbances took place in England, where turnpikes had been first established. In August, 1749, a great number of people in Somersetshire and Gloucestershire, some disguised in women's clothes, headed by leaders on horseback with blackened faces, had attacked the turnpike gates in those counties. They were called "Jack a Lents." The course of these disturbances was much like that of the later Rebecca riots of the nineteenth century in Wales.
But the turnpike gate extortions in South Wales were not the only cause of these riots. A Royal Commission was appointed on October 7, 1843, to make a full and diligent inquiry into the state of the laws, as administered in South Wales, which regulated the maintenance of turnpike roads and bridges. The Commission made their report on March 6, 1844, and from it we learn that there was deep-seated agrarian discontent in South Wales, not only at the exactions of the Turnpike Trusts, but also in connection with the costly administration of the poor law and the high salaries of poor law officers; the vexed question of tithes and the increased amounts payable for tithes under the Tithes Commutation Act of 1836; the permanent increase of county rates; the fees of Justices' clerks and the administration of justice by the magistrates; the cost of recovering small debts; and the position of the Established Church of England in the districts. The Commission, while calling attention to these matters, simply dealt with the task referred to them, and finally recommended that the debts chargeable upon the several Turnpike Trusts in South Wales should be ascertained and redeemed, and that they should be consolidated and placed under uniform management and control. In the Turnpike Act of 1844 Parliament adopted its recommendations. Commissioners were appointed for the six counties of South Wales to inquire into the Turnpike Trusts, to ascertain and estimate their debts, and to award to persons entitled moneys due therefrom. These sums were advanced by the Public Works Loan Commissioners, and charged on the Consolidated Fund. All local Acts for making, repairing, or regulating turnpike roads were repealed and a "County Roads Board" was established in each county to manage the turnpike roads under the provisions of the general Turnpike Acts. Equal tolls were to be taken at all gates in the same county, and a toll once paid cleared seven miles in the same or two miles in an adjacent county. Local boards, called "District Roads Boards," were authorized. Several amending Acts relating to these turnpike roads were passed in the years 1845, 1847, 1860, 1878, 1881, and 1882. The provisions of the principal and amending Acts cannot be of any particular value at the present time, and are not printed in this volume, for by the 13th section of the Local Government Act of 1888 the whole of the machinery of the County and District Roads Boards in South Wales was transferred to the County Councils then established.
A.D. 1881.—The sale of intoxicating liquors on Sunday in Wales was prohibited by the Sunday Closing Act (44-45 Victoria, c. 61). This was passed at the instance of the majority of the Parliamentary representatives for Wales. Monmouthshire was treated as a part of England, and not included within its provisions. A Royal Commission was appointed in 1889 to inquire into the working of this Act.
A.D. 1887.—In the Coal Mines Regulation Act (50Victoria, c. 58), by the 39th section (sub-section 1), it was enacted by Parliament that, in the appointment of Inspectors of mines in Wales and Monmouthshire, among candidates, otherwise equally qualified, persons having a knowledge of Welsh were to be preferred. By the Quarries' Act, 1894 (57-58 Victoria, c. 42, s. 2, ss. 3) and by the Factory Act of 1901 (1 Edward 7, c. 22, s. 118, ss. 2) similar provisions were made for the appointment of Welsh-speaking Inspectors of quarries and factories.
A.D. 1889.—An Act (52-53 Victoria, c. 40) to promote intermediate Education in Wales was passed in 1889. It provided for the intermediate and technical education of the inhabitants of Wales and the county of Monmouth. Like most modern legislation, the Act itself refers to and incorporates many powers contained in other Acts of Parliament. It established joint education committees in every county. These were required to prepare schemes utilizing educational endowments and buildings and, where necessary, establishing new public schools, to be administered by county governing bodies constituted under each scheme. The funds made available for this work are derived from county rates, endowments. Government grants, school fees, and local subscriptions. The Act came into operation on November 1, 1889. It was a permissive Act, enabling the various County Councils to set its machinery in motion, and has since been generally adopted in Wales and Monmouthshire with most valuable results. It was the result of the Welsh national educational movement which owed its chief impetus to the late Sir Hugh Owen. In 1881, a committee had been appointed to inquire into the condition of intermediate and higher education in Wales. This committee reported on August 18, 1881, and since then its recommendations have been adopted in almost every particular both as to higher and intermediate education. In 1885, Mr. Mundella introduced a Bill for Intermediate Education for Wales, in which for the first time the principle of a Treasury Grant in aid of intermediate education was embodied in a Government Bill, though this was not regarded as a satisfactory measure and did not become law. The Act of 1889 originally provided for a Welsh Board of Education, but the measure was accepted by the Welsh Parliamentary representatives without this provision as a large instalment of educational facilities.
A.D. 1890.—By 53-54 Victoria, c. 60, s. 1, ss. 4, passed in 1890, the Councils for the counties, where the Welsh Intermediate Education Act of 1889 applied, were given financial powers to apply certain customs and excise duties towards intermediate and technical education.
A.D. 1902.—The last Statute requiring notice is the University of Wales Act, 1902 (2 Edward 7, c. 14). On the 30th of November, 1893, her late Majesty Queen Victoriagranted a charter constituting and founding a University in and for Wales with the name of the University of Wales. By this Act Parliament recognized the degrees of the new University and conferred upon graduates of the University of Wales (Prifysgol Cymru) the same privileges and exemptions given to the Universities of Oxford, Cambridge, London, and the Victoria University at Manchester. A supplemental charter was granted in 1906 to the University of Wales by his present Majesty King Edward the Seventh, who as Prince of Wales was its Chancellor, and as King is now its Protector.
We have now discussed the considerable number of public Statutes collected in this volume, and only a few general observations remain to be made. It has been thought unnecessary to reprint any of the marginal notes thereto, for they do not form any part of the Acts of Parliament. Where convenient, the older forms of spelling are left unaltered, and it has been found impracticable to include the long catalogue of private and local Acts promulgated by the Imperial Parliament in relation to Wales. Such
private legislation will demand separate and prolonged consideration.
The chronological table printed in this volume is based upon the edition of the Statutes of the Realm, published by the Record Commissioners, which extended until the reign of Queen Anne. Subsequently we have to depend upon Ruffhead's edition and the ordinary editions of the Statutes at Large. The table explains how the various statutes have been respectively repealed or affected by subsequent legislation, and it will be perceived that the majority are not now in practical use. The long-contemplated revision of our Statute Law commenced in 1856, with the result that most of the spent and obsolete Acts, which were not applicable to modern circumstances, have been gradually expunged from the Statute Roll. But it is specially provided by the various Statute Law Revision Acts, that repeals thereby made shall not revive or restore any jurisdiction, office, custom, right, title, privilege, practice, or procedure not existing or in force at the time of the repeal. Notwithstanding this provision, the point was raised in 1862 in the Court of Exchequer, in the case of the Attorney-General v. Jones (see 33 Law Journal Reports, Exchequer, p. 249), whether the laws of Howel Dda were still applicable in Wales. The question was whether one of the laws of Howel Dda (viz., that "whosoever owneth the land on the side of the shore, he owneth the breadth of his land on the shore, and he may make a weir upon it if he will, but if the sea cast anything on the land or on the shore, the king owneth it, for the sea is a packhorse to the king") was still in force by virtue of the statutes 12 Edward 1 and 27 Henry 8, c. 26, s. 31. The counsel for the Crown rested their case, in the first instance, on the prima facie title of the Crown to the seashore between high and low-water mark. On the part of the defendant it was contended that by the Venedotian Code of the laws of Howel Dda the seashore in Anglesea, Carnarvon, and Merioneth did not belong to the King, and that the laws of Wales were, under the statutes 12 Edward 1 (Statutum Walliæ) and 27 Henry 8, c. 26, s. 31, still in force in that country. The jury returned a verdict for the Crown. A rule for a new trial was subsequently obtained by the defendant on the ground of misdirection by the Judge in directing the jury that the ancient laws of Wales did not apply to this case, but Bramwell, B., in making the rule absolute, left this point to be dealt with by the Judge at the new trial, without commenting thereon. The case came on for the new trial before Channell, B., at the Chester Summer Assizes in 1862. To prove the laws of Howel Dda, the defendant called Mr. Black, the former assistant-keeper of the Public Records, who produced an extract examined by him from the Cottonian Manuscript in the British Museum, containing the Venedotian Code, which in his opinion was of the date of the latter part of the twelfth century. He also produced a certified copy and translation of certain entries on the original roll, preserved among the Chancery Rolls, relating to Wales (9 Edward 1, A.D. 1279 and 1280); the entries consisting of a certificate and apprise under a commission issued by Edward 1, with instructions thereto annexed; a writ of aid for those Commissioners; and a writ addressed to Llywelyn Prince of Wales respecting the result of the inquiry instituted by the King.
On objection taken, Baron Channell was of opinion that the return to the Commission of Edward 1, apart from the references to be found in text-writers, showed that there had been laws enacted, administered, or compiled by Howel Dda; but after consulting Crompton, J., he ruled (observing, however, that the point was not free from difficulty) that the Cottonian MSS. was not admissible in evidence as proof of what those laws were. The particular law of Howel Dda, relied upon in support of the defendant's case, not being proved, the question of its present existence and validity was not raised. The jury, upon the direction of the Judge, upon other grounds found a verdict for the defendant. The important point remained undecided, and it is left open for fuurther argument by some patriotic litigant.
In the case of Bunbury v. Hewson, decided in 1849 by the Court of Exchequer of Pleas (see 3 Exchequer Reports, p. 588), it was contended that the ecclesiatical laws and customs of England did not extend to Wales. The point raised was whether an action could be maintained by the executors of a deceased incumbent against the executors of his predecessor, for dilapidations which occurred during the incumbency of the predecessor. The plaintiff stated in his declaration that by the law and custom of England hitherto used and approved of such an action would lie at common law. The defendant replied that there was no precedent of such an action by the executor of a deceased incumbent, and further submitted that, the living in question being in Wales, the law and custom of England at the time stated in the declaration did not extend to Wales. (The defendant was the executor of the Vicar of the parish church of Swansea, who was seised in right of the said vicarage of and in certain glebe lands lying and being in the parish of Kenfig and Pyle in the county of Glamorgan.) Baron Parke, in giving judgment in favour of the plaintiff, held that the action was maintainable, and overruled the objection that the vicarage being in Wales prevented the application of the English Law and customs, upon the ground that the laws of England were extended in 1535 to Wales by the statute 27 Henry 8, c. 26.
In this Introduction only a brief summary of the provisions and objects of the various statutes has been given, together with such explanatory matter considered necessary to assist the reader in understanding the scope of this legislation and making any further research. It does not profess to be a complete investigation of the historical circumstances connected with the legislative enactments concerning Wales. It is but a preliminary exploration made into the trackless desert of the library of the Statutes of the English Parliament, and it is solely intended as a guide to a closer and more efficient examination of the historical treasures which lie therein. The more detailed scrutiny of the history of the Welsh nation will, we trust, be rendered easier by the inclusion within this volume of the principal statutes relating to the Dominion, Principality, and Country of Wales.
- ↑ See "Political History of England," by Professor Trout, vol. iii. p. 133.
- ↑ See Brynmor Jones and Rhys, "The Welsh People," chap. viii.
- ↑ "History of English Law," by Pollock and Maitland, vol. i. p. 220.
- ↑ See Brynmor-Jones and Rhys, "The Welsh People," Appendix A.
- ↑ Stubbs's "Constitutional History," vol. ii. p. 117.
- ↑ Pollock and Maitland's " History of English Law."
- ↑ Owen's "Pembrokeshire," p. 190.
- ↑ Marquis of Bute's address at Rhyl National Eisteddfod, 1892.
- ↑ "Political History," of England," vol. iii. p. 167.
- ↑ "Wales," vol. ii. p. 443.
- ↑ Wylie's " History of the Reign of Henry the Fourth," vol. ii. pp. 313-4
- ↑ Owen's "Pembrokeshire," Part 3, p. 123.
- ↑ Hallam's "Middle Ages," vol. iii. p. 169.
- ↑ Letters and Papers, Henry 8, 2, 1315.
- ↑ Froude's "History of England," vol. i. p. 244.
- ↑ "Pol. Hist. of England," vol. v. p. 377.
- ↑ See "The Welsh People," by Brynmor Jones and Rhys, p. 16.
- ↑ Lingard's "Hist. of England," iii. p. 328; Stubbs's "Const. Hist.," ii. pp. 382-392; Rymer, ii. 484649.
- ↑ See Brit. Arch. Ass. Journal, March, 1893.
- ↑ Doddridge, "Principality of Wales."
- ↑ See Hist. MSS. Commission, 1898; Report on Welsh MSS. i. p. 10; and "Political History of England," vol. v. p. 376.
- ↑ "Wales under the Tudors," by Professor Tout, p. 510.
- ↑ Meyrick's "Ancient Armour," vol. iii. p. 21.
- ↑ See Dom. Papers, James I., p. 463 (1619-1623).
- ↑ Gardiner's "History of the Commonwealth," vol. ii. p. 249.
- ↑ P. li.
- ↑ "Blackstone's Commentaries," vol. iii. c. 21.