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-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
cites a Case there Mich. 43. Elliz. in the Chancery between the Countess of Southampton and the Lord of Worcester Resolv'd by all the Judges That when a Decree is made in Chancery the Queen upon a Petition may referr it to the Judges but not to any other and so says that case the practice and proceedings have been which make a Law in cases of Equity and the Lord Chancellor agreed to it the Lord Egerton and accordingly upon Petition to the Queen and a Reference by the Queen to the Judges that Decree was Revers'd The like we may read in Andersons's Second Reports Fol. 163. The Earl of Worcester and Sir Finche's Case the same with that of the Countess of Southampton and Bulstrode's Third Part Fol. 118. See Serjeant Rolles's Abridgment the First Part Fol. 382. Ruswell and Every's Case 15 Iac. 1. and Arden and Darcy's Case 8 Iac. 1.27 H. 8. Fol. 15. But as to the Remedy against an Erroneous Decree in Chancery I have already given my advice at large in that former Treatise of mine before-mention'd to which I refer my Reader It is high time that it should be settled in some constant course The Noble Author suppos'd as I said before to be the late Lord Hollis in his Book beforemention'd hath asserted a very large Jurisdiction to belong to the House of Peers which in the consequence if it be observ'd and put in practice will be of mighty concernment to the Subjects Nor hath it been answer'd or taken notice of by any as far as I have heard That Author ascribes to the Lords a power to try and determine a matter of Fact in issue although the Right of a Freehold depend upon it and this by Proofs without a Jury pag. 66. and this he grounds upon the Precedent of the case of William Paynel the Record whereof is in Ryley's Placita Parliamentaria Fol. 231. What then becomes of that great privilege of the people of England of being tried by the Country and by their Neighbours and inferior Courts of Equity will be very apt to tread in their steps and do the like and it deserves to be enquir'd into if it be not already frequently so done The Lords will not be likely to reform it upon Appeal from these Courts of Equity if that should be assign'd for Error if they themselves should practice it as this Author says they may Nor does that Precedent of William Paynell any way countenance that practice for there the Concilium Regis gave Judgment upon Matter of Fact confess'd where there needed no trial at all The same Noble Author affirms That the Lords may entertain or dismiss Causes as their occasions will give them leave or as they have leisure from the greater affairs of the Kingdom so that sometimes they cannot be at leisure to do Justice If this Opinion be allow'd Cessa regnare says the Petitioner to King Philip of Macedon when that King refus'd to answer her Petition for want of leisure The Lords can says the same Author grant a temporary dismission to a Defendant by an Entry made of Eat inde sine die ad praesens but may Summon him again for the same Cause at another time when they think fit If this be true a man shall never know when his Cause is at an end nay the Chancery will give further costs after the Parties and Cause are out of the Court and long after the whole matter is at end without any new process The persons of whom this high Judicature doth consist had need be men of great Learning in the Law and of long Experience For the matters that should come before them are such as are too difficult for the inferior Courts to determine and are very abstruse and yet those inferior Courts are generally furnish'd with such as are of great Abilities and long Experience and usually spend Thirty or Forty years in hard study to make them fit for the discharge of their Offices Be Learned ye that are Iudges of the Earth says Almighty God that Judge of Judges Hence Governors are wont to be called Senators and in the time of the Saxons they were called Eoldermen or Eldermen for their Age Gravity and Experience It would indeed be a Miracle in Nature if any one could truly affirm of himself Me jam jam à puero illicò nasci Senem or nasci Iudicem to be able to judge in those abstruse and difficult Causes St. Paul being accus'd before Faelix did and that without insinuating flattery tell his Judge That he did the more cheerfully answer for himself because Faelix had been as St. Paul acknowledg'd of many years a Judge unto that Nation And he said the like when he stood before King Agrippa because he knew him Expert And it is a just and commendable course always practis'd in all our inferior Courts That after a Cause hath been pleaded that both Parties and Council and Witnesses and all others that will are permitted to be present and to hear the Repeating and opening and true stating the Case by the Bench and Court and to hear the Debate of it to observe and be in a readiness to rectify any misapprehension or mistake if any happen and so to set the Court right again As also that the grounds and reasons of the Opinions of the Judges may be known that the People may the better know thereafter how to square their actions And that the Law may be the better known to those that are subject to it For there ought to be one certain known Rule of Law whereby one and the same Case is to be determined and not two or more contradictory Laws in one and the same place It was a woful condition when at the same time some were burnt in Smithfield for being Protestants and others for being Papists which made one cry out Bone Deus quomodo hic vivunt c. Inferior Courts and the Superior must judge by the same Law and Rule for Misera est Servitus ubi jus est vagum And it is impossible to serve two contrary Masters and it is a sad case where the Trumpet of the Law gives an uncertain sound for then a man knows not how to order his affairs There may indeed be a different Method and Course of Proceedings in the several Courts and yet all conform to the same Law And it is sometimes said by our Judges that what is Law in the Exchequer is Law also in the King's-Bench and Common-Pleas If it were otherwise great Confusion would arise And this Law is not known by Inspiration it is not infus'd all at once but acquir'd by long Study and long Experience Sir Francis Bacon in his Advancement of Learning pag. 445. holds it just that Judges should alledge the reasons of their Sentence and that openly in the Audience of all the Court. And anciently amongst us in England the Courts used to enter the reasons given by the Judges upon the Record of the Judgment which is now suppli'd in some measure by Reports of Cases adjudg'd and of the Arguments at Bar and at Bench. But we have few or no Reports of Cases adjudg'd in the Supreme Court since those that are printed by Mr. Ryley In that ancient Cause of Adelwold Bishop of Winchester in the Saxon times under King Eldred the Record mentions that the Bishop himself Coram cunctis suam causam patefecit He pleaded his Cause himself Qua Rebenè ritè ac Apertè ab Omnibus discussa it was openly debated Omnes reddiderunt Iudicium This was at the Miccel-Gemot there was no withdrawing And Eadmerus gives us the like Instance in the Cause of Lanfrank Archbishop of Canterbury in the time of King William the First 't is in his Historiae Novorum pag. 9. Adunatis says he Primoribus Probis viris de Comitatibus quaerelae Lanfranci in Medium ducerentur examinarentur determinarentur In medium that is before or in the midst of all that vast Company To Conclude and in order to the obtaining a safe and speedy remedy let our Law makers be mindful of that old Advice and Caution viz. Serò Medecina paratur Cum Mala per long as invaluêre moras FINIS Hadelow's Case Note Note An. Dom. 1624. Note
or Persons imploy'd under the Freeholders and the Copyholders did truly and literally hold their Lands at first ad voluntatem domini till time gave it the Reputation of a Legal Custom and to a more durable interest and Leases for above 40 years were not allow'd in those ancient times but adjudg'd and held to be void as vying in value with Inheritance but they have of later times been countenanced by Courts of Equity and made equal in esteem with Freehold Estates and Inheritances being altogether under the Rule and Government of those Courts and having their dependance upon the decrees of those Courts and have the same privileges and favours with Inheritances under the new notion of being by their decrees made to wait upon the Inheritances and subject to Trusts which those Courts take upon them to have the Controulment of and hereby the Freehold and Inheritance of Lands are of little regard and value in comparison of those high powers and privileges which by the Law and Original Institution of the Nation did at first belong to them All this tends to the great Subversion of the Common-Law and of the very Constitution of the Nation and to all the good Rules and Orders of it and in length of time if not before remedied will bring all Estates in Land to depend upon Decrees in Equity and to be Ruled by their Arbitrary Proceedings and then farewel to the Common-Law And these Freeholders who were but the offspring of those Ancient Tenants in Capite are by the Common-Law the true and right Owners and Proprietors of the Kingdom And accordingly as in them was the true value stable firm and fixed interest of the Nation so in them did the Law place the Power and Government under the King who was always the Supreme in the Administration Hence it is that a Trial by Freeholders is in the Sense and Language of the Law a Trial per patriam for they are indeed the Country and the Country is truly theirs And it is a mighty power if we Enquire into it and much of it still remains though it has been exceedingly abated and humbled by the swelling of Equity and by certain Acts of Parliament made in troublesome Reigns yet there are some remains and the marks and footsteps of those many and great benefits that are lopp'd and pared off from it These Tenants in Capite and Freeholders were the Persons who under our Kings made up the Primitive Constitution of our Government both as to the Legislature and the Supreme Judicature or last Resort though now those powers run in a new Channel I shall instance in some of those Ancient and Inherent Rights and Freedoms which those Freeholders or Tenants in Capite did enjoy at the Common-Law and in the times of the Saxons and from times as Ancient as any Records do reach till by several Acts of Parliament made for the most part in unquiet times they were depriv'd of them Which will best discover the true and original Constitution of the Government and give great light to the matter we have now in hand viz. to find out the Supreme Judicature Almost all the Suits and Causes that did arise in the Nation came under the hands and power of the Freeholders ad primam instantiam at the first rise of them and they judged of them both as to matters of Fact and points in Law in the Country And then the greater and weightier matters of the Law met the same persons again at the last Resort of all Causes in the Witena-Gemots For these Freeholders made up the main body of those Common-Councils and great Assemblies Sir Hen. Spelman in his Glossary Fol. 70. speaking of the Magnates and Proceres explains who were meant by those high terms that is the good Freeholders And he shows likewise what Judicial power they had in those first times Magnates and Proceres were they Qui in Curiis praesunt Comitatuum hoc est Ipsarum Curiarum Iudices quos Henricus primus the Son of the Conqueror legum suarum cap. 30. esse libere tenentes Comitatus demonstrat Regis Iudices inquit sunt Barones Comitatus qui liberas in eis terras habent There are the Persons and Judges viz. Freeholders Per quos debent Causae Singulorum alternâ prosecutione tractari There you have their Power and Jurisdiction Among the Laws of King Henry the First c. 7. Collected by Mr. Lambert de priscis c. Fol. 180. The Title of the Law is De generalibus placitis Comitatuum quo modo vel quando fieri debeant Sicut antiqua fuerat institutione formatum generalia Comitatuum placita certis locis diffinito tempore convenire debent Nec ullis ultra fatigationibus agitari nisi propria Regis Necessitas vel Commune Regni Commodum saepius adjiciat Intersint autem Episcopi Comites Vice-domini Vicarii Centenarii Aldermanni praefecti praepositi Barones Vavasores Tungrevii caeteri Terrarum Domini These were the Judges of the Court. Then for the Extent of their Jurisdiction and the Universality of the Causes it proceeds thus viz. Agantur primò Verae Christianitatis Iura now termed Ecclesiastical Causes Secundò Regis placita Pleas of the Crown or Criminal Postremo Causae singulorum between party and party And in the time of the Saxons who first introduced this Course and Method of Justice Suitors were not permitted to pass by this first Application and Address before the Barones or Freeholders whom now we call Free-suitors at the Country-Court and per Saltum to begin at the Courts of Westminster or to follow the King 's Lambert de priscis c. Fol. 62. It is amongst the Laws quas Edgarus Anno 959. frequenti Senatu sancivit Fol. 63. Nemo in litem Regem appellato nisi quidem domi justitiam impetrare non poterit Sin summo jure urgeatur if he meet with hard measure in the Country ad Regem provocato that is to the King in his highest Court. Then was me proper time of Appealing to the King in his great Council as it is said in that Magnum placitum in Ryley's Placita Parliamentaria Page 84. between Humphrey de Bohun Earl of Hereford and Gilbert de Clare Earl of Gloucester and they are the very words of the Judgment in that Case Dominus Rex est omnibus singulis subditis suis Iustitiae debiton But the King alone in his own Person never Administred Justice or Equity but together with his great Court or by his Delegates the Judges in inferior Courts as I have fully prov'd in my Treatife of the Chancery These great Freeholders or Tenants de Rege in Capite as they were and still are the Judges of the County-Court which in Ancient times was the most busy Court so they had by the Common-Law and from time as far as any Record or English History does reach that mighty freedom of chusing all both Civil and Military Officers or Magistrates under whom they lived They
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