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
d. which with the Copy of the Bill Dedimus Drawing Answer and Expence of Commissioners c. will amount to forty or fifty Shillings notwithstanding the Debt or Damages in demand is not really 6 d. To avoid which Expence and especially when they are sued and molested by beggarly People the Defendants in such Actions tho' there be no cause of Action against 'em do chuse rather to compound with the Plaintiff than to answer the Action with so great an Expence which gives great encouragement to Cursitors and other litigious poor People to bring and multiply vexatious Actions in the said Court whereby the mean and ignorant sort of People within the same Jurisdiction are very much impoverished IV. Herein also the Author of the said Paper is very disingenuous for that the Defendant hath always a Dedimus to answer of course without paying one Penny to the Plaintiff or his Attorney neither is the Plaintiff or Defendant forced to take out any Copies of the Proceedings in Debts or Trespasses under 〈◊〉 Pounds but each Party by his Clerk or Attorney hath access to the Original Records to peruse them at pleasure without Fee and to take such Notes thereof gratis as he thinks fit nay when the Cause comes to hearing the Parties to avoid charge are admitted in these small Causes to carry the Records themselves to their Counsel for their Instructions But if the Cause be a matter of Title of Land in Equity or Debt or Trespass above Ten Pound value then the Records are to be copied in the Office for which Copy the Party is to pay four Pence a Sheet each Sheet to contain twelve lines and sixteen words in each line which is not above half the Charge of copying in Westminster-Hall and the Great Sessions V. That the Processes for Contempt in the said Court were generally directed not to the Sheriffs but to private persons nominated by the Plaintiff who are not sworn Officers as well as to Pursuivants and Serjeant at Arms by whom several poor People are usually forced from their own habitations being an hundred miles distance to Prison to the Lodge at Ludlow for the non-payment of the unreasonable and great Fees demanded by such Officers V. The first Process is in nature of a Summons and so in effect is the second called a Contempt upon either of which no person is arrested or holden to Sureties as in other Courts but after if the Defendant continues obstinate and will not appear he is arrested upon a Process directed to the Sheriff and other special Bailiffs but never carried to any Prison if with one Surety he will enter into Bond of 10 l. penalty to appear upon the Return of this third Process and if upon this third Process he refuses to give Bond to appear he is never carried out of the County to any Prison unless it be in some very extraordinary Cause of Contempt upon breach of Orders so that if any Prejudice does arise to him in this respect he may thank hinself for the mischief which he might have prevented by two Summons or a Bond for Appearance and if there be any Error in these Proceedings the Court upon Information orders the Plaintiff to lose the Charge he hath been at and to pay Costs to the Defendant If Process were directed to the Sheriffs alone Justice would be delayed in the Execution and retorn of Process especially in the cases of Gentlemen and wealthy Persons who in this Country of Wales are most commonly related to Sheriffs and their Deputies neither are the Fees of the special Bailiffs extravagant the Fee for an Arrest being very small and to be paid by the Plaintiff and not the Party Arrested VI. That where any of his Majesties Courts of Westminster do grant Prohibitions in Causes not properly determinable in the said Court yet if the Party that procures such Prohibition after he is put to a considerable Charge hath no benefit thereof unless he personally serves the other Party therewith who will abscond the Judges of the said Court refusing to obey any such Prohibition or else imprisoning such as serve them therewith VI. The Charge of the Sixth Article is not true for in the first place it is denied that the Court does countenance any Cause wherein they have not Jurisdiction But however if any Prohibition be at any time granted out of Westminster-Hall and the Plaintiff abscond the Service upon his Counsel Attorney or Sollicitor or any of the Judges is sufficient and always obeyed nor can any instance be made of any Person that was imprisoned for serving a Prohibition unless he did it upon the Judges sitting in Court with abusive and insolent words VII That after Actions brought or Tryals had in His Majesty's Court of great Sessions or in His Majesty's Courts at Westminister the Judges of the said Courts of Marches upon a Bill filed in that Court by the Defendant at Law suggested matter of Equity do usually take upon them to grant Injunctions to stay proceedings in the said Courts of Westminster and great Sessions and in case the Plaintiff at Law go on in any such Actions will severely proceed against and imprison such Plaintiffs at Law if to be found within their Jurisdiction VII As to so much of this Article as relates to the Courts of Westminster Hall the Author of these pretended Grievances is desired to give us some particular Instances to prove the Allegation for Persons who have been Practisers in the Marches and Officers there for many years cannot remember any such thing ever done but it is confessed that after an Action brought and before Verdict had in the great Sessions some Judges of the said Court of the Marches in imitation of the High Court of Chancery have of late granted some Injunctions to stay the proceedings there when the Defendant in his Answer hath discovered some equitable Matter for which the Plaintiff was relievable in a Court of Equity But if this be a fault it is a fault contrary to the Instructions and Law of the Court and therefore can be no Reason to destroy the Court but rather to punish the Judges VIII That in case of a Writ of Error of a Judgment in a personal Action in the Grand Sessions in Wales brought in the said Court of the Marches if after Errors assigned the Defendant in the Writ of Error pleads a Release or other matter of Fact thereto the said Court cannot proceed to determine such Error for want of a Jury whereby such Writs of Error will for ever remain undetermined and the Plaintiff in the great Sessions shall never have any fruits of his Judgment which is a failure of Justice which has several times fallen out in the said Court upon Writs of Error there brought besides that the said Court of Marches which is no Court of Record tak◠upon them to correct and determine Errors in the great Sessions which is a Court of Record VIII There is no failure of
forty shillings XIII That the Inhabitants of Wales are subject not only to the Court and the Great Sessions but also to the Courts of Westminster and oft-times served to appear both at London and Ludlow in one and the same day and that the vexatious Suits and Proceedings in the said Court of Marches and the great Oppressions of the Practisers Clerks and Officers of the said Court have been of late by several Grand Juries of several Counties in Wales presented as a great Grievance and fit to be redressed XIII This is no Objection for the Defendants in this Court may appear by Attorney It is true Wales is liable to several Jurisdictions and suffers most by those of Westminster so chargeable and remote from thence If the High Court of Chancery and Exchequer would not meddle with any Cause of Equity arising in Wales if there were fewer Quo minus's sent out of the Exchequer into Wales and none but against such as were really Debtors to the King as by Law it ought to be if fewer Outlawries were in the Kings-Bench and Common-Pleas all reasonable men must allow it would be better for Wales And the Author of the pretended Grievances would be a better Friend to his Country to promote a Law to limit the Jurisdiction of these Superiour Courts as to Welsh Causes than to endeavour to pull down an ancient Court that contributes so much to the good of his Country There is no Court without ill Practitioners but if that be an Argument to take away the use of all Courts where will be Justice found And that this Court must be taken down and not others in far greater Faults is strange Partiality XIV That the the said Court is an Expence to his Majesty of many thousand Pounds per annum and as the Officers Clerks and Ministers of the said Court do manage their business there do make use of the Power and Authority thereof to oppress his Majesties Subjects and there being now no Court of Star-Chamber there the said Court is now useless there being Courts of Law and Equity held twice a year of the Grand Sessions where Causes may be determined at less charge and trouble to the Parties within the proper County where they live XIV The Expence of this Court to his Majesty is not above 2700 l. per annum which is inconsiderable in respect of the Advantage it hath in all Ages brought to the Crown for hereby the Peace and Tranquillity of the Nation is better maintained than otherwise it would be and it is for the Grandeur of the Crown to have a great Power to preside in those parts especially when God shall please to bless this Nation with a Prince of Wales In the late times when there was no Court holden in the Marches many Outrages were committed in the Intervals of War and it was then the restless humour of that People to find out the way to Westminster whereby many good Families were ruined The Itch of going to Law will bring more Grist to Westminster-Hall and more Fees to some mens Pockets which peradventure is the Diana and the thing some men contend for but in a short time will impoverish Wales beyond imagination The Author of this Paper in modesty might have spared saying that this Court hath used any Oppression towards the King's Subjects till he had proved some particular Instances by some better Testimony than his own bare Affirmation And as to what he says That the Charge of the Great Sessions is less than of this Court this is like the rest for in the Great Sessions it is usual for matters in Equity to depend seven eight nine and ten years but in this Court that Author is challenged to shew that ever a Cause depended two years where there has been any careful Prosecution and by consequence which is most chargeable is left to the Judgment of others The Particular Conveniencies of the COVRT of the MARCHES 1. THis Court is the best Court for mean Men who are to Contest their Right with Men of Fortune and Power for by the Influence that such great Men have with Jurors Sheriffs Bayliffs and other Officers Men of small Estates have frequently miscarried in their Suits how good soever their Titles were Which Mischief is easily prevented by a worthy President with a Well-chosen Council 2. Whereas the Great Sessions are but twice a year and Causes there in Equity often hold Five Six Seven and Ten years before they come to a Determination and sometimes Thirty Pound or more is given for Costs of Suits This Court of the Marches ordinarily Determines a Cause in three Terms and seldom allows for Costs above Fifty Shillings or Three Pound except extraordinary delays have been us'd by the Defendant In this Court there are holden Four Terms and two Appearances in one year each of which as to the dispatch of Business is at least equal to a Great Sessions so that as much Business may be done in one year in this Court of the Marches as in three in the Great Sessions which are holden but six times in three years in any one County 3. If this Court be taken away peradventure no Welshman can be releiv'd in his own Country in any Equitable Cause for it is doubtful whether any other Lawful Court of Equity be in Wales especially in South-Wales For the Courts of Equity in South-Wales have in Westminster-Hall often been question'd and in the noted Case of Pugh and Owen it was adjudged Illegal and a Prohibition Granted The same Reason holds for the two Countys of Montgomery and Denby in North-Wales because these are new Counties made out of Lordships Marchers by the Stat. 26 H. 8. c. 26. It is true the Judges of those Circuits after the Stat. 34 H. 8. did take upon them by Petitions to give relief in Equity in some particular Matters but not formally by Bill till the time of J. 1. And it is well known a Court of Equity cannot be erected by the Kings Grant but must be by Prescription or by Act of Parliament but if such a Court were legal yet as appears above the Court of the Marches is more useful 4. Writs from Westminster are very hardly Executed in Wales especially in the Cases of Foreigners for if they happen to be concern'd in any Estates in Wales or have a right to any Debt there they will find such Partiality in Sheriffs that they will be without Remedy if this Court be taken away and this would deter such from having any dealings there and the Gentry of that Country ought to consider whether if this Court were down it would not be extreamly difficult for them to borrow Money in England 5. In this Court a poor man compels his right against Great men at a small charge for if he have many Debts owing from divers persons he may sue them all at one charge and set forth his causes of action against them severally in one Bill be they ten or more Defendants and have Judgment and Execution severally against them Whereas at Westminster or the Great Sessions he must have several Actions and consequently be at the charge of so many Suits each of which Suits will be far more expensive than this Suit in the Marches for all the Debts together 6. If this Court be taken away and Justice to be had only in the respective Counties of Wales at the Great Sessions which are limited to each particular County then the recovery of many Debts will be avoided by the Defendant's stepping out of one County into another to prevent any execution which is a frequent practice especially with them who live in the Confines of Counties 7. By the Statute of Rutland Judgments or Actions of Debt in the Great Sessions are given by default without any notice or Summons to the Defendants upon a presumption that all persons are to be present at the said Sessions upon the general Summons of the County Fifteen days before Many taking advantage of this commence Actions on purpose against persons without any cause and especially against such as have Estates in Wales and yet live in other Counties whereby it is impossible they should have notice to defend themselves So that people in their Persons and Estates are surpriz'd and seiz'd which is the first notice they receive of any Suit against them At the Court of the Marches this is speedily reliev'd at a very little charge but in the Courts of Westminster or elsewhere the Remedy is tedious and chargeable which would cause many such pretended Debts to be paid or compounded rather than men would be at the expence of redressing themselves by such troublesom means And this perhaps may make some Injunctions to the Great Sessions excusable 8. The quieting of a three Years peaceable Possession hath been found greatly beneficial for Wales where many strifes happen very often on such occasions with the death and wounding of men which no Court besides this of the Marches can so effectually and readily prevent There are other advantages which attend the Jurisdiction of this Court too many to be here enumerated but to any unprejudic'd persons this may appear sufficient to shew that the Clamours against this Ancient Court have been groundless and that if it be taken away all people that have any Concerns in Wales except such as like not to pay their Debts and do right to their Neighbours will find the want of it when it is too late Yet had the Clamours any thing of Justice in them the total abolishing a Court of so long and legal an Establishment and so highly beneficial to the Subjects of England and Wales might prove an Innovation of dangerous consequence at a time when t is not fit to try such Experiments nor would it be for the Interest of the Publick to have thousands now petitioning for Justice as they did upon the return of C. 2. after the discountinance of this Court by the preceding Troubles