A WARNING-PEECE FOR ENGLAND Being a Discovery of a JESUITICALL Design to Dismember WALES from ENGLAND to the ruine of both Together with undeniable Reasons and Arguments proving the indispensable necessity of Appeals from Wales to the Courts at Westminster By Certiorar Writs of Error Habeas Corpus Quo minus Subpaena's out of the Exchequer and Subpaena's out of the High-Court of CHANCERY Established by severall Acts of Parliament Humbly tendred to the Consideration of his Highness the LORD PROTECTOR and his Council By a Well-wisher to the Peace and Tranquility of this NATION P.P. LONDON Printed for N. Ekins and are to be sold at his Shop in St. Pauls Church-yard 1655. IT hath been and of late a much used Maxime Divide impera In order therunto persons ill-affected to the publike peace by reflecting too much upon their own advantages do imploy their endeavour to sever Appeals from the Cognizance or Jurisdictions of the Courts of Westminster therby to be within themselves absolute Masters of their own desires with little heed looking back upon the common Enemy that by these Wiles insensibly insnare them under pretence of advancing themselves to ruine the whole Government For the Wisdom of our Predecessors purchased our Union with much expence of Blood Money and Time to prevent those great Inconveniencies that the inconsiderateness of some probably of themselves excusable will inevitably draw upon us by an intention they have to petition the Supream Power to bar the Inhabitants of Wales of the benefit of those Writs of Appeal Certiorar Writs of Error Habeas Corpus Quo minus and Subpaenas out of the Exchequer and Subpaenas out of the High Court of Chancery established by so many Acts of Parliament And for the continuance of an usurped Chancery in Wales the inconveniency wherof briefly appears by the ensuing Treatise A WARNING-PEECE FOR ENGLAND AS it is sayd of Tenures That all Estates are held mediatly or immediatly from the King or Supream Magistrate So it may in as apposite a Sense be affirmed of Judicatory power that all Jurisdiction is subordinate to the Supream Authority There is and ought to be in one and the same Common-wealth or Empire a certain Scale of Judicatory continued in an orderly concatenation of Superiority and Inferiority until there be at last a concentration of all in that ultimate Right of Soveraignty He that shall contradict this Subordination of Powers seems in my judgment equally obnoxious unto censure as those that shall maintain that there ought to be no order or degree amongst particular men all power is either Ordinary and Originall or delegated and without peradventure the power delegate ought to be dependent upon that from which it is deduced to pretend authority in the lower Spheares of delegated Jurisdiction that shall be unresponsall to the higher is little better then a criminall and contemptuous arrogance which truly I can call no lesse then a degree of Deniall to the Supremacy it selfe that the Summa potestas should be secured with this Life-gard Maxime of Policy Immunity of punishment and unquestionablness for Error I would readily allow as conceiving it rationall and agreeable to the rules of the Government for there must be a sons Justitiae a Dennier resort upon whose determination all litigant and dissenting parties must quietly sit down and acquiesce But to set up particular inferior Magistrates of what condition soever in such Paramount Stations as to be exempt from the benefit of appeals as it is a solaecisme in Government without President so would it tend to nothing but to gratifie the supercillious minds of corrupt and ambitious men and consequently set up so many Exorbitant Dictators in the place of Judges who may exercise their Arbitrary wills and tyrannies and grind the faces of the people cum privilegio 'T were to be wished that all such as are reall freinds and relate to that Jurisdiction of Wales would addresse themselves to those that sit in Judicature in the Welsh Counties and therby to represent seriously to their consideration how fatall and perilous a thing it is to any Court or Jurisdiction to seek to advance their own authority by incroaching upon another power especially where that power is the Superior Many fresh instances might be produced in these latter times of severall Courts that have had their downfal from this Pinacle of Vsurpation Let the Councell of the Marches for all the rest be mentioned for one single Memorial monument of the unhappinesse of this Error other Examples I omit the truth hereof being notorious enough to the most careles observer I am really perswaded that 't is not the unanimous opinion of all those judges that ride the Welsh Circuits that those Writs of Certiorar Habeas Corpor. and Writs of Error c. should not be allowed But am assured that the most of them More Majorū do acknowledge their Subordination and dependance which is an argument to me more cogent then a Demonstration that they that promote this project for abolishing these Writs for I can call it little better are agitated by assed by some private intention to a grandize themselves rather then upon pure and honorable principles of conveniencie and zeale to the publike welfare before such attempts as these t is known those Courts of Wales continued in great splendor and reputation under the power and management of wise moderate and Learned Judges and Officers But if now they shall not containe themselves within their antient Land-Markes those Earthen potts may it is to be feared be broken in peeces by dashing against those that are of more solid Materialls what the pretenders of this innovated priviledge for exempting the inhabitants of Wales from appeale upon Writs of Error Habeas Corpor. Cerciorar c. being the antient rights of the people can say for themselves is beyond my apprehension to conceive To affirme that it is against Law would smell of grosse or willfull Ignorance or else which is worse affected Arrogance For 1. It is a sufficient reason in Law that the practice ever since the erecting the Jurisdiction in Wales hath warranted Certiorar and in these times when those parts were supplyed with as learned Judges as any the Nation afforded and for writs of Error the Statute of Wales directs where they shal be brought Viz. in personalls in the Marches in mixt and real at Westminster as for Criminall causes It is the opinion of the most learned Lawers of this Nation that Certiorar upon the Statute of 26 H. 8. cap. 6. do lye in Wales for removall of all Inditements for Felonie Murther Man-slaughter and other Offences there committed to be tryed in the next adjacent English County And that by the same Statute any of the Inhabitant of Wales may be indited and tryed in the next adjadent English County for a Fact committed in Wales The practice wherof being frequent in cases arising as well in North-wales as South-wales and many presidents might be instanced
which may be thus Marshalled 1. All County Iurisdictions must of necessity be more obnoxious to partialities in their proceedings then those that are of more universall latitude they are so circumscribed within so small a Circumference that the Iudge although never so upright and vigilant will be more easily abused the Iurors more lyable to be packed or misled and the Witnesses in all Causes more readily wrought upon and corrupted This reason as may be supposed was not the least motive to the late Parliament that gave the break-neck to the Designe set on foot for Provincialls So that it is more then apparant the present Design to make the Welsh Iurisdiction absolute and independent tends not only to the deprivement of Wales of their ancient Rights Liberties and Freedoms established by Law but if granted would prove a President of dangerous consequence to all the people of England as herein afterwards is more fully declared 2. It is very well known to those that are acquainted with the nature and condition of the people of Wales that before the late Wars at this time there were and are such Family Emulations and Differences for the most part in the severall Counties that the whole body of them is apt to be cast upon every slight controversie into Factions Confederacies and parties insomuch that the infection therof doth not only remain amongst the Vulgar and private men but often times doth attach the very Bench of Iustice and by that means t is not impossible but it may somtime catch hold of the Iudge himself 3. It is observed that since the late VVars these Differences have been so increased and the spirits of men so highly provoked that of late years as I am informed the civill Military and Ecclesiastick Powers there have been used and converted by some more for private vindication and revenge on their Neighbours and Country-men then for the reall discharge of publike trust Insomuch that the cries of the oppressed have been very loud though helpless and should the Iurisdiction of VVlales be made absolute and independent without Appeals then without question all except such as are intrusted with the Authority and their Friends and Relations must needs be unsafe in their lives liberties and Estates 4. Those that are conversant with the Welsh Proceedings do observe that if the matter concern any person of awe or eminence there is most commonly such relation between the Parties Iury and VVitnesses either in respect of Blood and Kindred tenure or other dependa ce that some out of wretched simplicity others our of wilfull perversness will make but a Cypher of the man upon the Bench and think they discharge not their duty unless they find for their Kinsman their Friend or Lord. 5. But suppose that the case of controversie fall out between a Native and an English-man certainly experience hath taught some that mediet as linguae is in no case more necessary then here For the first Inquiry or whether he be Eâ—gle Cheria or no and I may then say without traducing of that Country that the same Injury or Fact committed upon a Native will many times not be found so when committed upon an English-man Ob. If it be objected that Appeals to the Courts of Westminster by Habeas Corpora Certiorar Writs of Error c. occasion delay and expence An. It cannot be denyed by any but that delatory Justice is more desirable then perverted and the Appellant bears the greatest burthen who probably will not appeal without good cause to warrant his proceedings therin for besides his own charges he must pay considerable costs if in civill Causes to the other party if he make not good his Appeal if in criminall Cases the charge of bringing it to the test besides the re-inforcing of the Judgment given below if he fail to make good his Appeal is a sufficient check to all Causelesse Appellants Ob. If it be objected that Tryals upon Quo minus Subpaenas out of the Exchecquer are chargeable and delatory because they are transmitted for tryall into forraign Counties and that the remoteness of the place is a discouragement to parties and their Witnesses An. 1. That Objection will prove of little force if the conveniency of having the same tryed before indifferent and impartiall Judges and Jurors in the next adjacent County be duly considered where Causes are determined with equal and quicker dispatches then the ordinary course of Justice in the great Sessions of Wales doth bear it where many by reason of experimentall delayes of late used there are much discouraged to prosecute their Causes 2. If the extraordinary charges of Appeals from corrupt and erroneous Verdicts and Judgments be taken into consideration occasioned by the partiality and corruption of Sheriffs and Jurors and others that have the transacting of the peoples causes as hath been before demonstrated with this also that in case a Welsh Sheriff be of the contrary faction or a freind to the Plaintiff or Defendant such Iurors shall be returned against whom no exceptions can be made by Law yet shall bring in a verdict rather according to the pleasure of the Sheriff and the parttie he adheres unto then according to the truth and merits of the cause 3. If it be considered where the trial by Law is appointed although not in vicineta yet in vicino Commitatu in the neighbour County although not in the neighbourhood and it is often seen on trialls in the Welsh Counties the parties are forced somtimes to bring witnesses out of England 100. or 200. miles or more and somtimes out of the remotest partes of Wales even to this County of Mountgomery 4. The contrivers and promoters of Cantonizing Wales to serve their own ambitious ends do not only go about to deprive the Inhabitants of Wales of the benefit of Certiorar Habeas Corpora Writs of Error Quo minus Subpaenas out of the Exchequer But would also make themselves Lord Chancellors as well as Lords cheif Iustices of Wales and that no Appeale might be hereafter made by any of the Inhabitants of Wales to the High Court of Chancery for the reveiw or reversal of any decree or other proceeding in the pretended court of Chancery there held nor any address to the said High Court of Chancery by any of the Inhabitants of Wales for releif upon Originall bills there filed touching any matters reall personal or mixt relating to Wales all which sufficiently testifieth the pride ambition and exorbitant thoughts and purposes of these Innovators to make themselves sole and arbitrary Iudges both of Law and equity in all causes criminall and civill to the indangering of the lives liberties and estates of all such as are not or shal not be intrusted with this Paramount authority or are not or shall not be of relation to them Wheras in truth if their Chancery Iurisdiction be but inquired into they have not the least colour much lesse Commission or authority to hold such a Iurisdiction as
they now do and for some late yeares have usurped as I humbly conceive for these reasons 1. The Iudges of Wales have not any power either by the Stat. of Wales or their Commissions to hold a court of chancery nor yet by any ancient custom or Prescription but its beginning was from the Councell of the Marches now abolished on meer references transferred unto them wherby color therof first retained petitions and afterwards bils in equity neither can they produce especially in South-wales one bil in equity preferred in this pretended Court of Chancery in Wales of 50. years standing there being many living that well remember the time when no such bills were retained but only equitable rules made at common law either by the mutual consent or upon submission of the parties 2. There are no Officers setled nor sworn nor any set Fees established in this welsh Chancery by any Law or legall authoritie other then what the Judges there for some late yeares arbitrarily have erected wheras the Fees and Officers in reference to their Gommon-Law Jurisdiction are certaine and prefixed by the Statutes of Wales 3. The Welsh Chancery is a paper Court where there are no records or inrolments kept of their proceedings but their paper Records as they cal them are commonly carried by Client Sollicitor and Attorney from place to place in their pockets and often left and some times made use of to light Tobacco 4. It is questionable whether any person can be questioned or Indicted for perjury committed in this Court wherby the same may become a Nursery for Perjury which is a reason given by some that know the Country why Perjury is so frequent in some of those partes 5. To a Court of equitie a distinct Seale ought to appertain to seale all their writs and inforce obedience to their proceedings But to this pretended Court of equity no such Seal appertaineth yet assume they power to seal their Chancery writs with the Judiciall Seal and therto affix green wax which is solely ordained by the Statute of 34. H. 8. to Seale Judicial writs and not Chancery writs and therfore as well may the Iudges of the Vpper Bench or Common Pleas or the Officers intrusted with the Seales therof affix green wax to the Writs Issuable out of the Highest Court of Chancery and seal the same with their proper seal and take the Fees due for the same as the said Iustices or their Clarks may seale the Writs or mandats which they Issue out of their pretended Chancery with their Common-law Seale by which they cannot inforce obedience to their pretended Chancery Iurisdiction and so consequently their Orders and Decrees are of no force but the people exposed to fruitless trouble and expences and that which can attain to no reasonable end the Law rejects as a thing inutile and uselesse Sapiens incipit a fine 6. The High Court of Chancery time out of mind and memory of man nay ever since the establishment of the Iurisdiction of Wales on Bills exhibited there have and do retain the same and give reliefe therein notwithstanding any Decree Order or Proceedings in the pretended Chancery of Wales against whose proceedings the said Court have and do grant Injunctions untill the hearing of the cause which were never disobeyed nor contradicted nor such proceedings found inconvenient untill within this 12. months a Judge then and now in Wales drew a Plea of a decree made before himself in Bar of a bill exhibited in the High Court of Chancery for releif of the same matter Owen against Thomas Hillar 1654. but got an other Counsel to signe it which being argued before the Lords Commis and endeavored to be maintained by two Welsh Counsellors that take upon them to be the principall upholders of this usurped jurisdiction yet their Lord ps overruled and ordered the Defendants to answer in cheif and granted an Injunction for stay of the proceedings in the Chancery of Wales for the matters here complained of untill hearing of the cause 7. There are Presidents that may be likewise produced of Prohibitions Issued out of the Courts of Vpper Bench and Common Pleas against the pretended Chancery of Wales 8. A Court of Equity cannot be erected by grant or prescription but only by Act of Parliament Hobart 5.87 Martin and Marshall Dyer 175 1 pr. Sproggs Case and yet the Chancery in VVales hath neither grant nor prescription nor Act of Parliament for its support wherof the Judges of VVales being deeply sensible and of the danger of incurring the penalties imposed by the severall Statutes for Premunire in cases of like nature have not untill now of late take upon them the authority to make any finall or decretall Orders without the orders themselves were first signed by the Counsel Attorneys on both sides wherby the same were indeed made rather orders by consent of both parties their Counsell and Attorneys then any finall or decretal orders by a Chancery Iurisdiction which indeed gives them no more authority then if the matter were referred by consent of all parties by way of Arbitration to ordinary Arbitrators and how farr any have acted beyond their Commission or contrary to the Statutes for Premunire is humbly submitted to consideration there being no Register there untill of late 8. To give the Iudges of Wales the power of Law and equity in all cases criminall and civill without Appeals to Westminster is such a Iurisdiction that the wisdome of former ages never yet thought safe to intrust to any persons of never so much integrities abilities nor any could be found so immodest as to accept much lesse to desire it until few of late and it is well hoped that the supream Authority wil take special notice of the contrivers promoters of this design being a few out of Brecknock Shire where Iohn Corbet Esq doth ride as sole Iustice is upon occasion of a murder ther lately commited by some that are of neer relation to those that carry on this design with an intention to smother this murther and save the life 's of few from the power of Justice with the vtter ruine of the whole Country as is herein after more fully discovered The granting such a power of Law and equity in one or more persons is to set up Arbitrarines and to destroy the fundamental Lawes of England as Magna Charta the Petition of right and tryals by 12. men c. For after a verdict at Law the same person that sits as Judge therof may if he please as Chancellor stop Indgment or after Iudgment stay Execution or if he please stop the tryall it self and in one mans case Administer the strictnes of Law but in another mans case of the same nature Administer his own will for rules of equitie And so carry fire in one hand and water in another hand being indeed a power that many learned honest conscientious men would not accept off if offered unto them as Inconsistent w h