A TREATISE OF THE TRUE and ANCIENT JURISDICTION OF THE House of Peers By Sir ROBERT ATKYNS Knight of the BATH State super Semitas antiquas LONDON Printed in the Year MDCXCIX To the Honourable The Knights Citizens and Burgesses of the House of Commons in Parliament Assembled The Humble Petition of Sir Robert Atkyns Knight of the Bath SHEWETH THAT your Petitioner in the several Publick Employments he hath undergone hath had more than ordinary occasion of observing the encreasing Iurisdiction of the Courts of Equity in this Kingdom and how the Common-Law the Birthright of every Englishman hath been and still is every day more and more invaded by it He hath taken the pains to collect many of those continual complaints from time to time made by the Commons of England in Parliament against the Exercise of that New Iurisdiction in the very beginning of it And your Petitioner hath great reason also to take notice of the Exercise of the Iurisdiction of Appeals from the Proceedings of those Courts And humbly presents this Honourable House with what he hath collected in order to your Service therein Your Petitioner craves leave to make use of that freedom which belongs to every Englishman to tender you a Complaint against so publick â—nd spreading a Grievance He doth not Appeal nor complain of any thing that meerly concerns himself He only subjoins a Case wherein himself was a Party meerly as an Instance of the large Exercise of a power against the known and fundamental Rules of the Common-Law as he conceives That Case of your Petitioner happened very lately in the Chancery But it is generally known in the Courts of Westminster-Hall That as your Petitioner had occasion he hath for many years frequently and publickly in his Station enveigh'd against the Encroachments of Courts of Equity and that late course of Appeals But on the behalf of the whole Kingdom he humbly offers his Service and lays before You what he hath observed and collected upon this Subject after near Threescore years Experience And submits All to your Wisdom to proceed in providing Iust Remedies And your Petitioner shall ever Pray c. Robert Atkyns OF THE Supreme Jurisdiction IN THE KINGDOM OF ENGLAND THE House of Lords have a very Ancient and Transcendent Jurisdiction but it is not Absolute nor Arbitrary in the Exercise of it nor Universal and in all Cases it is a Power Limited by Law and must be Exercis'd according to the known Rules of Law And though the Peers are very Great and Honourable yet they are but Men and not Infallible and therefore a Writ of Error lies upon their Judgments And the Law allows that liberty to the meanest Subject to demur to the Jurisdiction of any Court whatsoever even that of the House of Lords Let us Enquire into their Jurisdiction when it began and in what Cases they have a Right to it An Eminent Author suppos'd to be the Late Lord Hollis upon occasion of the great Cause between Skinner and the East-India-Company so much disputed between the Two Houses of Parliament hath in Print Asserted That the House of Peers hath their Right of Judicature from the beginning of the Nation Page 134. He affirms it is a Power Lodged in them by the very Frame and Constitution of the Government As to the Extent of their Jurisdiction Page 213. he affirms That they have an undoubted Right to an Universal and Unlimited Power of taking Conusance of all manner of Causes of what nature soever and of Judging and Determining of them if no particular Law do otherwise dispose of them Nec Metas rerum nec tempora ponit The first of these seems to Entrench very far upon the Regal Power He not only makes their Power equal in time to it owning no Derivation from it but in effect Claims a Co-ordination with it But the Claim of such an Independent and Original Power sounds like that which is taken to be a peculiar of the Supreme Power as to the Administration of it viz. In all Causes and over all Persons c. Nay he holds that the Peerage sets bounds both to Power and Liberty Page 71. as this Author maintains it It may easily be understood by what follows what is meant there by Power viz. The Regal Administration of it Whereas the Common-Law of England and all the Authors and Writers of it do with one Consent acknowledge Jurisdictions within this Realm are deriv'd from the Crown And that no Court hath an Absolute and Unlimited Power save the Supreme Court of the Nation consisting of the King Lords and Commons Assembled in Parliament and in them indeed is the True Supreme Power under God But that according to the different nature of Causes some are distributed into one Court and some into another But not any one Court hath Jurisdiction in all Causes save that of the Parliament And that all Courts must proceed by some certain known Rules that is the Courts of the Common-Law Secundum legem consuetudinem Angliae And Courts of Equity according to the ancient and constant Precedents and Usage But this Court of Peers for I confine my self still to what is asserted by this Noble Author doth wholly exclude the King and ingross all to themselves No by no means He allows the King a single Voice among them Page 145. as a Chief Justice in another Court whose Voice or Opinion hath no more force than that of a Puisny Judge No not so much as a Casting-Voice where they are equally divided I shall offer to Consideration upon what grounds and proofs this Noble Author doth Entitle the House of Peers to this Unlimited Jurisdiction He hath been led into these Opinions I fear by some late over-zealous and injudicious Writers who out of a too fond and forward Zeal to depress the House of Commons in the late Exorbitant Power which they took upon them in the late Times in order I say to the decrying of their Usurped Power those Writers thought they could never sufficiently Exalt the Power of the Lords to over-ballance that of the Commons And it may perhaps be useful by the way to take notice of the strange Revolution that in the late Times happened to the Government of this Nation 1. Our Kings began first to strain Prerogative too high upon the Subject 2. Both the Houses of Parliament thereupon join'd together in Usurping upon the Regal Power 3. After some short time the late House of Commons by the help of their Army laid aside the House of Lords Sic cum sole perit Syderibus decor 4. After some time again a lesser part of the House of Commons exclude the greater part 5. And these their own Army over-top as being but the Fragment of that House 1. Sic Medus ademit 2. Assyrio Medóque tulit moderamina Perses 3. Persen subjecit Macedo Cessurus Ipse 4. Romano These Modern Writers who are such earnest Advocates for the House of Peers ascribe to the Lords
Rescripto ad Comitia Parliamentaria evocaverit Here we have plainly the Original of the House of Peers and of particular and special Rescripts or Writs of Summons to the Optimacy distinctly and by themselves Cambden quotes his Author for this but names him not Ex satis antiquo Scriptore loquor says he It was referr'd to the King to single out and select some to whom he thought fit to direct his special Writs or Summons and these and no other were to come to Parliament If this may be credited then we have the Epoche and the Date of our present Constitution and the Original of the Division of that very ancient great and numerous Assembly and it made a mighty Metamorphosis and Change The Freeholders parted with that great Power and Interest which they had both in Legislature and Judicature from the very Foundation of the Government and the Nation it self Even from the time of the Ab-origines if there were ever any such and they have been upon the losing-hand ever since as appears by what I have already observ'd in closing their Rights of Elections And thus they brake in two and became two Houses both at one time and were Twins in their Birth Here was no Primogeniture yet the one went away with a double portion upon the parting And this taking in the History is a confutation of that Opinion That the House of Commons as being by Election was in time long after the Date of the House of Peers surely they started both together Great Selden agrees in the Substance with Mr. Cambden but differs from him only in the time and some other circumstances when this Revolution happen'd And for Mr. Cambden's satis antiquus Author Mr. Selden professes he diligently sought for this Author but could never meet with him nor does Mr. Selden give any credit to that Author He supposes the distinction of Majores and Minores Barones which doubtless did arise upon this Revolution pag. 708. began not long before the great Charter of King Iohn Father to King Henry the Third and that Charter was made in the Seventeenth and last year of King Iohn This Division of Barones which all Writers agree in and which appears by King Iohn's Great Charter evidently shows that the two Houses began at the same time for Majores cannot be without the Minores But Mr. Selden supposes this was done by Act of Parliament though that Act be not now Extant Nor is there any express Memorial of it And he supposes it was not submitted to the King to chuse out whom he thought fit But that the Act of Parliament did mention them by name at first to whom particular Writs were to be directed Some part of the very words of that Charter of King Iohn's we have in Mr. Selden's Titles of Honour pag. 709. and in Sir Hen. Spelman in his Glossary pag. 83. Faciemus says that great Charter Summoneri Archiepiscopos Episcopos Abbates Comites Majores Barones Regni Sigillatim per literas nostras Et praetereà faciemus submoneri in generali per Vice-comites Omnes alios qui in capite tenent de Nobis which is a clear proof that till about this time there was no distinction And that which did Constitute a Parliamentary Baron was his Tenure de Rege in Capite so that all who held in Capite had an inherent Right to sit there And that before this time all came by a general Summons directed to the Sheriff What hath been hitherto said serves to prove That before this time of King Iohn or King Henry the 3 d his Son there was only one great Assembly of the Nation that is of the most Eminent and all the considerable and interested persons of the Nation who came not by Election save those that were chosen from the few and ancient Burroughs Nor was there then any Representative as now And that those great Assemblies were in those times the true Baronage of England and that the word Baronage did not belong only to such as the King by special Writ is pleas'd to call or summon or by Patent to confer the Title upon but as our most judicious Writers tell us the word Baronagium did extend to all Degrees and Orders for they came to all great Assemblies by Tenure till the aforesaid time of Division And there are the footsteps of this Ancient Right still amongst us in that the Freeholders whom we call Free-suitors are still the Judges of that Court which Anciently was the great and buisy Court the County Court. And those Elections that are still remaining of Trustees or Representatives in Parliament and of divers Legal Officers which must be by Freeholders only and the persons to be chosen ought to be out of the Freeholders themselves And so much of the Ancient Constitution of a Baron still remains as that in his Creation he must be entitled of some place that it may favour of the Realty and make the Honour and Title Inheritable And the Baron still continues his Freedom from Arrests as having by presumption of Law an Estate in Land which will make him liable to Justice And therefore a Distringas shall issue out against him instead of a Capias And the Law will allow of no Averment against a Peer that he hath no Lands whereby to distrain or to levy Issues upon No doubt but the Lords had from the time of this great Division ever since a very large though not an universal Jurisdiction nor have they had it from the very first Constitution of the Government as is by some pretended When this great Assembly this great and numerous Body was divided into parts no doubt but the several parts did as the Four great Captains after the Death of Alexander the Great did assume and take to themselves by Agreement several shares of the power that was then dissolv'd The Lords took a large share and the Commons for so now they began to be distinguish'd took the rest and we may reasonably suppose it was confirm'd by some Law that then pass'd and hath been since lost And the like presumption we know is made by our Courts of Law in many like cases And it is well known that the Parliament Rolls of that time are all lost And the best Rule whereby to judge what was allotted to each will be by ancient constant quiet and uninterrupted Usage and Practice Usus consuetudo est Lex Parliamenti The House of Lords did exercise a Jurisdiction in cases of Appeals for Criminal Causes till by the Act of 1 mo of Henry the 4 th c. 14. they were restrain'd That Act doth Ordain That from thenceforth no Appeals shall be pursued in Parliament the Exposition of which Statute must be made by observing the mischiefs that occasion'd the making of that Law and the constant practice after it The preamble recites That many Mischiefs did often arise by Appeals And the History of the times of King Richard the 2 d. the next preceding
where the King is concern'd the Lords have no Jurisdiction without the King's allowance and the King doth not think fit to refer it to the whole House of Lords yet the King will have Justice done and he will be inform'd if the Outlawry were duly sued out But the King himself assigns the persons that shall judge of it And yet it is said that this is suing Error in Parliament for when the Parliament is risen it is held that the Delegates appointed by the King could not proceed So that Pleas may be held in Parliament by the King and his Council such as he shall specially appoint for that purpose at every Parliament And yet they may be stiled Placita Parliamentaria being transacted only in time of Parliament but not by the Parliament This case of Edward Hadelow teaches the true nature and course of a Writ of Error in Parliament and the right method of proceeding upon it and the King's Prerogative in it And how that case wherein the King is any way concern'd in interest as he is in cases of Outlawry shall be Examin'd by none but such as are specially assign'd by the King See the case in the Year-Book of 1 mo Hen. the 7 th Fol. 19. Flourdew's case By Advice of all the Judges in the Exchequer-Chamber which is a case Reported in Latin Oportet partem habere billam de Rege indorsatam Et super hoc Cancellarius faciet breve de Errore Et tunc capitalis Iusticiarius de banco Regis so that it is only from the Court of King's-Bench but no other Court Secum adducet in Parliamento breve de Errore Et praedictam billam sic indorsatam And the Clerk of the Parliament is to have the keeping of the Bill Endors'd This proves that it is their Commission by which they proceed and it must remain with the Clerk of the Parliament not with the Chancellor The Lord Dyer's Reports 23. Eliz. Fol. 375. tit Error Plac. 19. there is a Supplication Sign'd by the Queen for a Writ of Error We have another Precedent in Sir More 's Reports Fol. 834. in the case of Heydon and Sheppard pasc 12. Iac. 1 mi The like in Leornard's Reports the 3 d. part Fol. 160. in the case of the Queen and Hurlston Now concerning Proceedings in Equity in general the English Court of Chancery the Court of Equity there it hath not been of any great Antiquity and upon what Legal Foundation it stands is not easily to be affirm'd As I have made appear in a larger Treatise Of the Original of the Iurisdiction of the Chancery in matters of Equity To which I refer my Reader Our Ancient Authors as the Mirror of Iustices Glanvil Bracton Briton and Fleta although they treat of the Chancery as it proceeds according to the Rules of the Common-Law viz. in Repealing of Patents and in Cases Priviledg'd yet none of them do once mention the Court of Equity there and yet their undertakings were to treat of all the several Courts then in being which proves the Court of Equity in Chancery was not then in being It hath been adjudg'd 26. and 27. Eliz. in the King's-Bench in Perrot's and in Marmaduke Langdales Case Cok. 12. Rep. Fol. 52. That a Court of Equity cannot be Erected by Patent but only by Act of Parliament or by Prescription And the Chancery hath no Prescription for a Court of Equity as appears by those Ancient Authors If the Chancery it self have no Right of Prescription then there is no Foundation for any Prescription in Cases of Appeals nor is there any Act of Parliament that gives it The First Decree as I take it in Chancery is but of the time of King Richard the Second and that was Revers'd for that it was in a matter properly determinable at the Common-Law The best proofs of the Power and Jurisdiction of a Court are the Records and Precedents of a Court And if it be by Prescription it must appear by ancient and frequent Precedents Plowd Comment in the case of the Mines Fol. 301. b. And if any Court Usurp a Jurisdiction in a case where it appears in their very Proceedings themselves that it hath no lawful Jurisdiction what they do in such case is Corà m non Iudice and is utterly void Now concerning the Exercise of a Jurisdiction by way of Appeal from a Court of Equity for Error in their Decrees I shall make mention of the very Records and Acts of the House of Lords I have search'd into the Journal of the Lords and I find a Record or Entry there of the Parliament held 18 Iac. 1. Anno 1621. And we need search no higher for that gives a full account of all the times then pass'd as to the point in hand viz. Of the Supreme Judicature and Jurisdiction 18 Iac. 1. Fol. 175. Of the Lord's Journal I find by an Entry of the 30 th of November in that year That a Comittee had been named by the Lords to take into consideration the Customs and Privileges of the Lord's House and the Privileges of the Peers or Lords of Parliament And that a Sub-Committee had been named who had express power to reward such person as by their Warrant should search among the Records for Privileges and Customs and that Mr. Selden had been appointed for that purpose and had taken much pains in it I observe by the way That the House of Lords were not then of the same Judgment with the Noble Author I have before mentioned who asserts the Right of Judicature of the House of Peers to be by the very first Constitution of the Government Universal and in all Causes whatsoever unless restrain'd by some Act of Parliament Had that been true there had been no need to search for Precedents to warrant their Proceedings in any case It had been sufficient to justify the Proceedings if no Act of Parliament could be found to restrain them in any such case the labour of which would have been properly on his part that would presume to dispute their Jurisdiction No the Lords took the right course to examine it if there were no Precedents the Lords concluded that then they had no Right to a Jurisdiction and no Persons nor Court can assume to themselves at their own will any Authority or Jurisdiction Quis me constituit Iudicem said our Blessed Saviour there must be a constitution of it And it was properly enough ask'd by the Scribes and Pharisees of our Saviour Who gave thee this Authority I would observe too that the Sub-Committee of the Lords employ'd for that purpose of searching for Precedents a person who was in his Element the Famous Selden no Record could escape his discovery Further in the 208 th Folio of that Journal of the 18 th year of King Iames on the 14 th of December the then Archbishop of Canterbury for he it seems took special care of it mentions in his Report to the Lords the Proceedings of that Committee viz. A