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-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
and produced in that behalf And the words of that Stature are very plain and pregnant to warrant the same But in case the Statute had been dark or dubious yet by implication of Law an Appeal lyeth without express provision as out of Ireland Galice County Palatine c. 2. By the Statute of the 27th of H. 8. Wales and England were incorporated and by the words of that Law the Inbabitants of Wales shall have and enioy all Rights Fran bises Liberties Priviledges and Laws within England as any of the Inhabitants there being born Subiects should have or enioy 3. The Inhabitants of England enjoy the benefit of Certiorar Habeas Corpora Writs of Error Quo minus and Subpaenas out of the Exchequer and Subpaenas out of Chancery which Court ought to be alwaies open for the releife of all Suitors and consequently the Inhabitants of Wales by authority of the sayd Statute ought to enjoy the like Benefits Franchises Liberties Laws and Priviledges Since which time they have lived peaceably under the same Law Government which the most ingenious and knowing amongst them desire still to enjoy Who cannot but look on the promoters of this innovated Jurisdiction amongst them as persons that go to seperate Wales from Eng. to the indangering the peace therof and to debarre all Wales of those Priviledges Lawes and immunities which were gratiously made and established for that benefit and such as do herein as they have done in other things else do deem themselves to be enemies to their Native Country and the Peace and Tranquillity therof 4. The Statute of the 34 of H. 8. which establisheth the Welsh Jurisdiction is an affirmative Stat. and was meerly granted in Favor of Wales by way of additionall Priviledge and Liberty But doth not take away those Lawes Liberties and Priviledges which were established for their benefit by the sayd precedent Statute of 7 H. 8. nor doth abridge them from the benefit of any Priviledge or Liberty which they might claim before those Statutes 5. T is repugnant to Reason and common Justice that an Inferiour Court should be set up that is subject to erre and yet should not be subject to an Appeal 6. The Jurisdiction of Wales is derived from the Crown of England and the Iudges there fit by Patent made under the great Seal of England T is agreeable to reason that the Chancery that gives them their Power should be capable to send a Writ of Error to them and force obedience 7. The Certiorar and Habeas Corpus commeth out of the Vpper Bench the Court of the Lord Protector where he himself is supposed to sit and hath absolute and supream Authority in Criminall Matters and must be obeyed therin upon pain of contempt 8. It is observed that ever since the Vnion of VVales and England by the Statute of 27 H. 8. Writs of Error and Habeas Corpora have never been denied nor opposed by any untill within this two years by one Mr. John Corbet Justice in Brecon c. Gwyn agninst Corber Hill 1654. A Writ of Errror was opposed in the case of Kees Gwin Gent. But on full debate therof by learned Councel on both sides before the present Lords Commissioners of the great Seal of England Their Lordships declared their Opinion that the Writ of Error did unquestionably lye and issue into VVales and the Iudges there ought to yeild obedience therto And the sayd Court imposed severall Penalties on the said Mr. Gorbet for his wilfull contemning the sayd Writ and the Authority of the High Court of Chancery from whence he received his Commission 9. As for the Writ of Quo ininus it is warrantable likewise by Law Keleway 138 Quo minus out of the Exchequer and Capias us lagatum out of the common Pleas issue into Wales 1. Because in transitory Actions a man may sue where he pleaseth 2. A Quo minus is a Prerogative VVrit found out for releif of the Kings Debtors 3. The Principalitie of VVales is and alwaies was held of the Crown of England and therfore the Inhabitants therof properly suable before the Barons of the Exchequer to which place they are Accountants 4. The liberty of suing in the Chequer by Quo minus or Subpaenas hath been time out of mind used and practised without contradiction and without question if the Inhabitants of Wales did not find more benefit therby and more indifferent just proceedings there then in their own Country it is not probable they would travell so far for Iustice whilst it is in the choice of the Plaintiff where he will bring his Action and surely no Plaintiff will probably sue in the Chequer without very good cause of Action because that Court provideth costs for the Defendant suitable to the nature of his Expence and where the Inhabitants of VVales should be abridged or debarred of this ancient Freedom Liberty and Priviledges no indifferent unbyassed person can afford a satisfactory reason And the rather because the matter comes to be tryed in the next adjacent English County not farr from their own Habitation nor yet so remote as the late Council at Marches was to most parts of Wales And tryals of this nature give great satisfaction both to Plaintiffs and Defendants when they have choice of learned men to plead their Causes before learned Judges and able indifferent Iurors of no relation to Plaintiffs or Defendants to try their Causes But it is possible that the legallity according to the present Constitutions may not be much contradicted and therfore it must not suffice to rest there It shall be my next task to make known and discover to those that wil not wilfully hood-wink themselves the absolute and undispensable necessity of continuing this ancient laudable and approved Constitution concerning the removall of Actions or Suits from or beginning them elsewhere then in Wales where the cause of Suit is first emergent And in the first place give me leave to say I hold this liberty of Appeal as great a priviledge as any is comprised within the great Charter of our Freedom There are many living whose experience will testifie to this Truth had not their sufferings made them incapable to be produced as Witnesses and others of foreseeing judgments and perspicacity that will readily maintain that this assertion is no Hyperbole For my part I make no difference in relation to every English mans general Birth-right by the Law between a Habeas Corpus and these other Writs of Error Certiorar Quo minus Subpaena out of the Chequer and Subpaena out of the High Court of Chancery And how grievous the complaints of the people have been in all times when Writs of Habeas Corpora be obtained Presidents of former times speak loudly of and the noise therof hath wrung in all mens eares But to make the necessity of the present Position the more delucidly appear it will be convenient to descend to some particular numericall reasons for the maintenance of it
the rules of good government in the due administration of justice if once this power was erected in Wales then by the same rule of Law reason may some ambitious persons petition for establishing the like Iurisdiction in all other parts of this Nation that are but 30. or 40. miles distant from London therby reduced the whole Nation into severall Provinces under an Arbitrary mixt power of Law and equity in one and the self same persons to the subversion overthrow of the Fundamental rights laws liberties and freedoms of England Far be it from any sober man as much as to imagine that the Wisdome and Justice of his Highnes the Lord Protector and his Counsel wil ever condiscend to such unsafe destructive Attempts the effecting wherof would not only draw a ruine insensibly upon the whole Nation But endanger the very Root of Government Whereas now the Supream Magistrate hath the mediate overseeing of all the Judges proceedings in Westminster-Hall and they have an inspection into the proceedings of all delegated and subordinate Judges and Officers and a power to releive the innocent and oppressed and punish the guilty wherby the Supream Magistrate may oversee the proceedings of all the Judges of England and Wales in and through the Chrystal Fountain of Iustice which alwayes ought to flow from the Courts at Westminster for the releiving and refreshing of all the oppressed injured people of the Nation and therby the Supream Magistrate is the better enabled as Iudge over all Iudges to discern and determine such differences as shall or may arise either between the people or the severall Courts and Jurisdiction of the Nation and Administer equal right and Justice to all the people under his Highness Government and Protection But least this discourse might fall into the hands of some incredulous persons that are no wayes concerned to take notice of the manner of the proceedings in Wales give me leave to present to your consideration three Affidavit the Original wherof remain of record in the Chancery and upper Bench which will in great measure fortifie the veritie of the foregoing conclusions and I dare affirm if all other passages of like nature that have happened in the great Sessions held in those parts this little treatise would swel into too great a Volume Thomas Watkins of Bulith in the County of Brecon Gent. maketh Oath that Elizabeth Williams mother of Roger Price late deceased finding one Jeffery Williams at the last Epiphany Quarter Sessions held in Brecon did in Court lay hands on him and charged him with the murther of the said Roger Price her son and acquainted the Justices of the peace then and there sitting that the said Roger Price was dead of the stab and wounds received of the said Jeffery Williams Hugh Williams his brother David Williams and Samuel Thomas and prayed the Justices to commit the said Jeffery williams then ther present to the Goal wherby he might be proceeded against according to law Nevertheles the said Jeff. Williams was left at liberty upon ordinary Bayl to appear at the last great Sessions for the County of Brecon and the said Ieffery Williams hath since been permitted to ride armed with his sword and the said David Williams with a fouling peece to the great terror of the mother wife and freinds of the said Roger Price and the said David Williams having threatned Thomas Phillips brother to the said Roger for appearing for the Lord Protector against him and the rest of the offenders in order to the bringing them to a faire tryall And the said David Williams did shoulder and jostle Elizabeth VVilliams the mother whilst she was going peaceably in the street that the said Elizabeth Williams taking notice of the premises and of the great Countenance given the malefactors finding their power and interest to be too potent for the Prosecutor in the said County of Brecon where she could not hope for a faire and indifferent tryall and proceedings against them did imploy this Deponent being uncle to the said Roger price to sue out a Certiorar out of this Court for removing the Coroners Inquisition to this Court in order to a fair tryall in an indifferent English County who on security given to prosecute with effect obtained the same delivered the said writ to the Coroner since the Inquisition made by which the said parties were found guilty of Man-slaughter on the Statute of stabbing of the first of King Iames since which time at the last great Sessions held at Brecon before Iohn Corbet Esq Justice there the said Mr. Corbet was moved in open Court that the said Ieffery Williams then and there present in Court might stand committed according to Law and acquainted Mr. Corbet that the Inquisition was found wherupon Mr. Corbet seeming highly displeased with the removal therof did check and discountenance the prosecutors Counsel and permitted other Counsel to speak against the said writ and removall of the Inquisition and Edmond Iones Esq Attorny Generall there for the Lord Protector not speaking one word in behalf of the Lord Protector and the Prosecutors in that behalf but on the contrary moved that the said Ieff. Williams might stand on his bayl And further deposeth that the said Mr. Corbet committed the said Elizabeth Williams mother of the said Roger Price and one of the Prosecutors and suffered the said Jeff. Williams to go at liberty on his bayl and did not asmuch as Issue a Warrant to apprehend any of the said Offenders but did also so far appear against the Prosecutors and the Interest of the Lord Protector that he checked the Coroner and called him a knave and examined him against himself on oath in court meerly for his careful discharge of his duty on the Lord Protectors behalf as this Deponent verily believeth the said M. Corbet did examin the foreman of the Jury in open Court against the Coroner the Lord Protectors Interest against himself as this Deponent taketh it and afterwards privatly examined him in his Chamber and refused to Administer an oath to the said Elizabeth Williams on her Affidavit produced in writing touching the Premisses a true Coppy wherof is hereunto annexed although the said Elizabeth did render her self to be sworn to the truth therof first in his Chamber and afterwards in open Court who then kept the same Wherfore and by reason of the potency of the Malefactors in the said County this deponent being Uncle to the said Roger Price deceased and one of the Prosecutors for the Lord Protector cannot hope or expect to obtaine Justice or any fair or indifferent proceedings in the said County of Brecon against the said Malefactors for the said horrid murther wherof they stand as afore said indicted And the rather in regard John Williams Esq late high Sheriff of the said County being brother to 2. of the said Malefactors and Edm. 〈◊〉 Attorny Gen. there being a special friend to the said Jo Williams