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A25540 An Answer to a paper entituled The Grievances of His Majesty's subjects residing within the principality of Wales in respect of the Court of the Council in the Marches of Wales : with the particular conveniences of that court. 1689 (1689) Wing A3332; ESTC R29059 10,740 17

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Justice in the Case therein alledged for the Statute of 34 35 H. 8. which impowers this Court of the Marches to examine erroneous Judgments given in Personal Actions in the great Sessions of Wales does implicitly and necessarily impower them to Try any Matter of Fact that may be pleaded in such a Case tho' it be not mentioned in express words for it is a Rule in Law Quando aliquid conceditur concedi videtur id sine quo res ipsa esse non potest Therefore in 14 H. 8. f. 1. It is resolved That if one makes a Lease excepting a Close or Wood the Law giveth him a way to it tho' there be no express words concerning the way And therefore in this Court of the Marches there are Presidents that when any such Matter of Fact has been pleaded upon a Writ of Error as is mentioned in this Article which happens but very seldom the same has been Tryed at the great Sessions in some County of Wales upon a feigned Issue directed by this Court of the Marches and besides if there be a failure in this Court of the Marches there is the like failure in the Court of the Exchequer-Chamber erected by the Stat. of 27 Eliz. for redressing Errors in the Kings-Bench for if a Matter of Fact be pleaded there the Statute by express words does not provide how this Fact shall be Tryed but in those cases such Matters of Fact have been Tryed by Nisi prius So that this Court of the Marches is no otherwise defective in this point than the Court of Exchequer-Chamber and if either of them were defective in these points as they are not that is a defect in the Law and sufficient cause for a Parliament to redress it by a new Act but no cause to destroy the Courts And that this Court is a Court of Record in this respect is very evident for the proceedings herein upon Writs of Error are in Latin as in other Courts of Record and the Court takes its Jurisdiction in this particular by an Act of Parliament and awards Execution if the Judgment be affirmed IX If a Sheriff Bayliff or other Officer execute any Process from that Court for the King or Subject and the Defendant bringeth an Action of false Imprisonment such Officer cannot plead Not Guilty and giveth Process in Evidence but must be inforced to plead the Statute at large together with their Instructions which never yet could be drawn by the best Clerk besides that it will cost upwards of ten pounds whereas perhaps the damage in the Original Action did not exceed 12 d. IX Pleas to Actions of False Imprisonments brought against Officers for executing the Process of this Court have been drawn by Council and maintain'd which are yet to be seen upon Record and may be used as a President in the like case at any time for a very inconsiderable Charge and if no such Plea had been yet drawn yet certainly it is not impossible or difficult to be done by any Lawyer except the Author of this Paper X. They usually alter and frequently quiet Possession upon the filing of a Bill there without any Process served upon the Defendant and often-times upon the Oaths of the Prosecutor whereby men often lose their right at least with much charge and difficulty regain the same X. There is no Injunction granted out of this Court to alter or quiet any Possession before a Bill Fil'd in the Court setting forth the Complainant's Title and an Affidavit made that he hath been in quiet and peacable Possession by Vertue of that Title for three years before the exhibiting of the said Bill and then the Injunction is only to quiet the Possession till Eviction by a due course of Law which the Party enjoyned may commence and prosecute with what speed he please and so bring the matter to a Legal determination And if he recovers by Law the Injunction is forthwith dissolved But if this Affidavit be false the Party concerned hath liberty to take Issue thereupon and to prove it so by Witnesses which if he does the Injunction is immediately dissolved and good Costs to him awarded for the vexation And moreover the King's Attorney attending this Court is ordered to Prosecute an Indictment of Perjury against the Offender for this false Oath This proceeding is warranted by a particular Instruction from the King grounded upon the said Statute of 34 and 35 Hen. 8. cap. 26. for the preventing of Blood-shed and Murder which before often happened on such Occasions in Wales and if that Power should be taken away the old turbulent Humour would soon revive to the great disturbance of the tranquillity of that part of the Kingdom and the strongest Man would have possession of the best Estate till he could be evicted by a great Expence which a poor Man out of Possession could never undergo XI Many lewd and dissolute Persons live by serving the Process of the Court and making Affidavit thereof and though they can neither write nor read yet will swear the serving of forty or fifty Processes at one time wherein they cannot but oftentimes forswear themselves and much prejudice the Defendant XI This may be objected against the Court of Chancery and Exchequer-Chamber and divers other Courts where illiterate People are mostly employed to such purposes but particular care is taken in this Court by the Judges strictly to examine them and to caution them well of what they swear and to punish them if they swear false XII That they usually grant Injunctions to stay proceedings in inferiour Courts which hold Plea only of Trespasses and Debts under forty shillings whereas it was never intended the said Court of the Council of the Marches should hold Plea of any Debt under forty shillings XII This Court never grants Injunctions or Certioraries to remove Actions out of Inferiour Courts but upon a Bill filed and Oath made of Partiality in the Inferiour Court either because the Plaintiff below is an Inhabitant in the Inferiour Jurisdiction and the other a Foreigner Or if the Plaintiff is an Alderman of the Corporation or Related to the Steward or Judge there and when the Plaintiff below appears he by Answer sets forth the Nature of his Plaint below and the Plaintiff in the Court of the Marches by Replication sets forth what he hath to Plead in Bar and if the matter of his Plea be not sufficient the Plaintiff below recovers his Debt in this Court with his Costs and this removal must be before the Verdict upon the first Commencement of the Suit below and the Party that removes the Action must first give Security in the Court of the Marches to answer the Duty and Costs in case the Suit goes against him All which warranted by the Instructions of the Court. And besides all this the Author of that Paper is challenged to shew any Law whereby the Court of the Marches is intended to be excluded from holding Plea of Debts under
AN ANSWER TO A PAPER ENTITULED THE GRIEVANCES OF HIS Majesty's Subjects Residing within the PRINCIPALITY OF WALES In Respect of the Court of the Council in the Marches of WALES With the Particular Conveniencies of that COURT LONDON Printed in the Year MDCLXXXIX INTRODUCTION THE said Court was at first erected to suppress the violence of the Welsh and for preservation of the Peace in the Marches and in the nature of the late Court of Star-Chamber but in process of time encroached on the Courts of Common-Law and held Pleas in Civil Actions by English Bill and took encouragement thereto by the Clause in 34 and 35 Hen. 8. cap. 26. that gives that Court power to hear and determine by their directions such matters as then after should be assigned by the King as then-to-fore used And the same Act constitutes Courts of the Great Sessions in every County for determing of all Causes and Suits where there is also a Court of Equity ANSWER IT will be agreed that the said Court was erected amongst other ends for the Suppression of Violence and the Preservation of the Peace in Wales but it is absolutely deny'd that the said Court was at first erected meerly in the nature of a Star Chamber-Court for this Court continues notwithstanding the Star-Chamber-Jurisdiction hath been long since abrogated by Statute nor hath the said Court incroached upon the Courts at Common-Law or used any power more than what is warrantable by the Laws and Usages of that Country confirmed by Parliament and for the manifestation hereof the Answer to the said pretended Grievances is this viz. Grievances I. THat nevertheless the Judges of the said Court of the Marches do take Cognizance and take upon them to decree Damages in Actions of Trespass on the Case Slander Assault and Battery c. where the damages are uncertain and ought by the Law of the Land to be assessed by a Jury Answer I. IT is manifest by divers Presidents yet remaining amongst the Records of the said Court that before the thirty fourth year of Hen. 8. the Judges of the said Court by an ancient Usage there did constantly take upon them to decree Damages in Actions of Trespass on the Case Slander Assault and Batttery where the offences were well proved by English Depositions Then came the Statute of 34 and 35 H. 8. cap. 26. by which it is enacted That there shall be and remain a President and Council in the said Principality of Wales and the Marches of the same c. in manner and form as hath been heretofore used and accustomed which President and Council shall have power to hear and determine by their Wisdom and Discretion such Causes as be or hereafter shall be assigned to them by the King's Majesty as heretofore hath been accustomed and used pursuant to this Statute the several Kings and Queens of England have ever since to this day by their Instructions ready to be produced impowered the Judges of that Court to hold Plea in the said Actions of Trespass on the Case Slander Assault and Battery and by their Wisdoms and Discretions to decree Damages therein where the Offences are well proved by English Depositions as then-to-fore had been used and accustomed so that it is very plain that in this particular the Court does no more than what by Law is justifiable and with submission more convenient and beneficial to the poor Subjects of Wales than if their Causes were tried by a Jury for the Judges of that Court are always Men of Abilities and Learning and therefore much more unlikely to be byassed or corrupted than poor ignorant Country-men who in those parts scarce dare give a Verdict against a man of any Note or Quality But however if this be esteemed a real Grievance this may be a cause to alter the Law but not to take away the Court which in this respect does nothing but what is now warrantable and upon the same grounds this may be a reason also to alter the Proceedings in the High Court of Chancery which does determine mens Rights by English Depositions and Testimonies without any Trial by Jury II. That the Defendants in matters of Assault and Battery are in the said Court compelled to appear to an English Bill and to answer the same upon Oath though the same contain matters criminal II. The Author of the said Paper is disingenuous in this particular because the Court never does require the Defendant to answer upon Oath to an Action of Assault and Battery but always accepts of his Plea by his Clerk or Attorney without any Oath as a pears by the standing Rules of the Court. III. That the said Court do hold Plea hear and make Decrees for small Debts under forty Shillings and in such Suits do allow more Costs than the Debts and Damages do amount unto And that in Actions and Suits for Trespass Assault and Battery and on the Case where the damages are not proved to be above 2 d. there are usually given by the said Court 4 or 5 lib. costs and where the Plaintiffs Bill is dismiss'd it is generally without any Costs to the Defendant by reason whereof many Vexatious and troublesom Suits are incouraged by the Clerks and Sollicitors belonging to the said Court. III. The Court of the Marches in this respect does no more than what is done by the Courts of Westminster and in the Great Sessions of Wales for in these Courts if the Debt in the Declaration be laid to forty Shillings or more and what the Plaintiff recovers be under forty Shillings yet he shall have his full Costs which at the least comes to six or seven Pounds So in Trespasses of all sorts before the Statute in that case made the Courts at Westminster did award full Costs tho' the damages recovered were under forty Shillings and not above Two-pence and notwithstanding this Statute which moderates the Costs in these Cases in the Courts at Westminster and not elsewhere the Judges there have made such Expositions upon this Act that it is in a great measure evaded for in these Actions of Trespasses if there appears any thing of a Conversion tho' it be but of a Shilling value they always award full Costs Also in an Action of Battery in the Courts at Westminster if the Damages be found to be but one Shilling yet if the Judge that tries the Cause does certify that the Battery was well proved at the Tryal the Plaintiff shall have his full Costs But in this Court of the Marches tho' there is no Act of Parliament that does fetter it in point of Costs yet if the Action appears to be frivolous the Court either gives no Costs or but very little as 10 15 or 20 Shillings and if there be cause they do dismiss the Suit with costs to the Defendant for his vexation IV. That no Defendant shall in the said Court have a Dedimus to answer but he must first pay the Plaintiff or his Attorney 6 s. 8