Henry Salusbury Milman

“ These words, however, do not purport to declare the legal limits of Wales as then understood, but to create a new Wales, by naming the counties of which it shall thenceforth be constituted. This new limitation can only bear a qualified sense; not historical, for an Act of Parliament cannot alter history; nor political, for a political division between two countries already become and still remaining politically one is a contradiction in terms, and can only be compared to a reconstitution by arbitrary limits of the Heptarchy, without touching the integrity of England. ”

“ The primary meaning of shire is, a division of a realm; of county, the district held or governed by a count or earl. Every shire implies a realm, and was usually committed or left by the supreme ruler to the government of an earl. On the other hand, every county joined to a realm became a shire, or part of a shire. But many counties were not within any realm. Long after the formation of the ancient shires of Wales, the term "county" continued to be applied to Lordships Marchers which never even gave their names to shires, although, of course, comprised in the final shire-distribution. ”

“ The name of the greater country alone has been and is frequently used, not only in popular but in official language, to denote the whole, and the Legislature has declared that in statutes it shall be so understood: [2] yet the name of the lesser survives—a legitimate consequence of, and a perpetual testimony to, distinction of race and language, and an honourable record of independence preserved long after the Anglo-Saxon states had been merged in the kingdom of England. ”

“ The historian tracing the origin of the ancient shires of Wales is guided by the analogy of England. The Anglo-Saxon shires [39] were of two classes. Those of the first class were originally distinct royalties, formed by the Anglo-Saxons out of lands acquired from the Britons. Those of the second class arose from the dismemberment of the larger kingdoms, and seem to have been formed by placing one or more wapentakes or hundreds under the government of an ealdorman or earl. In some instances smaller shires have been annexed to a larger district. ”

“ The common boundary of adjoining communities, fully understood, is the common limit of their adjoining Marks.
The limits of the Marks of the Anglo-Saxon kingdoms toward each other were doubtless early ascertained with sufficient accuracy, and recognised in their mutual public transactions. The kingdom of Mercia, emphatically the Mark country, chiefly formed out of the original Mark against the Britons, and always, and at length exclusively, bordering upon them, falls under peculiar considerations. ”

“ That part of our national history which concerns Wales in its relation to England especially requires such illustration.
The political geography of Wales belongs and is confined to the period of its separate political existence; which, however, did not terminate so early as is generally assumed. Wales indeed finally submitted to the English power in the reign of Edward I., but it never became part of the English Realm until that of Henry VIII. It was then annexed by the English Legislature, [1] and politically merged in the united Realm of England and Wales. ”

“ This Act was an important step towards unity of jurisdiction in matters of Equity throughout the Realm of England and Wales, but the local judicature of the twelve counties survived in full force to our own day.
An arbitrary limitation of territory, laid down for a special purpose, is inseparably connected with that purpose. They stand and fall together. Cessante ratione, cessat et ipsa lex. Wales, as the province of a separate judicature, was such a limitation. ”

“ The history and antiquities, the language and literature, the established rights and laws of a country, constitute and characterize its nationality, and remain unaffected by a measure merely concerning the administration of justice. ”

“ The boundary line of Mercia and Wales, thus established with due solemnity by the authority of both nations, was constantly recognised as such during the Anglo-Saxon age. [13] Cenwulf, the immediate successor of Offa, vindicated it on the north by his famous victory at Rhyddlan. [14] Early in the ninth century Egbert, King of Wessex, added Mercia to his dominions, and adopted its western limit. "Punishments of the most frightful character are denounced against him who violates" the Mark of the primitive settlement. ”

“ Soon after that period, the legislation of the English Parliament for Wales, formerly restrictive and severe as for a conquered country, sought rather to reform the people and to assimilate the laws to those of England. Whenever it was possible, the statutes of the Realm of England were framed so as specially to include Wales. [47] Formerly, measures of restraint were chiefly directed against the Welchmen of the Marches by way of protection to the adjoining English counties ”

“ The Acts of Parliament concerning Wales passed in the years immediately following, [54] and the Itinerary of Leland, who visited it at this very period, are evidence that these provisions of the Act of Union were not so interpreted by contemporary authority. To blot out the national name of a country solely on the ground that it no longer retains a separate judicature, is an unreasonable and useless change ”

“ The first step toward this policy was the establishment of a common limit of these Marches, and such a limit was Offa's Dyke. [7]
It was not likely that a nation still powerful and independent would readily acquiesce in a diminution of territory, the consequence of a series of defeats, or would regard otherwise than with hostility a boundary line drawn against itself, partly, perhaps, by its own reluctant hands, or would view with indifference the advance and increase of hostile settlements. ”

“ Down to the reign of Offa its western limit seems to have been left undefined, and in fact was perpetually advancing as the Britons receded; while, on the other hand, the Britons were ever withdrawing their settlements to some distance within their line of defence, leaving the intervening space as a protection against their encroaching enemies. ”

“ This claim, however comprehensively worded, was effectual only to the extent of the territory in the King's own hands, as is further evident from the enacting part of the charter, which clearly affects that territory only.
The King's domain in Wales thus became annexed to his English Crown as a separate realm or sovereignty. The King, on creating his son, Edward of Caernarvon, Prince of Wales, granted to him by charter (7th Feb. 29 Ed. I. 1301) this royal domain, [36] which thenceforth became the principality of Wales. ”

“ The question was as to the meaning of the word "Marches" in the Act [60] continuing the Lord President and his Court; the Crown alleging that it meant these four border shires. All the judges were specially assembled to consider this question. Sir Francis Bacon, then Solicitor-General, has fully set out the arguments used by the Crown, and the points which they were intended to establish or refute, in his tract on "The Jurisdiction of the Marches." ”