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
way upon the opening of them how properly truly and naturally these Observations result and are made out some by one Precedent and Author and some by another which otherwise by an hasty reading might possibly escape the being observ'd It will not be altogether impertinent by the way to take notice of the temper and usage amongst the Ancient Britons before the coming of the Romans testified by our most credible Authors which seem to have a countenance this way viz. of translating all publick Affairs by the body of the Freeholders And that it may appear that this humour of the Nation was as we use to say bred in the bone Although they seldom or never had any National Assemblies as before hath been observ'd unless upon some great and extraordinary sudden occasion like that of chusing Cassibilan for their General upon the Invasion by the Romans or the like which was but temporary Tacitus the Roman Annalist says of the Ancient Britons De Minoribus rebus Principes consultant De Majoribus Omnes Ita tamèn ut ed quóque quorum penes plebem arbitrium est apud Principes praetractentur Note Principes here signifies not Princes or Monarchs but the great or chief men as will appear by what follows The Plebs or common sort were not excluded whenever they did consult or transact any publick Affairs Ziphilinus out of Dio Cassius speaking of the Britons Apud hos says he Populus magnâ ex parte Principatum tenet This is not meant of the power of Government as if they were a Republick or had any thing of a Democracy for Caesar in his Commentaries tells us that the Old and Primitive Government amongst the Britons as to the Title and outward Form of the Administration was Monarchial and Regal Olim Regibus parebant says he But it must therefore be understood that the People had this Principatum in Subordination to the Kings It was not Engross'd into the hands of an Aristocracy and what can Principatus else consist of unless in Legislature and Judicature Our late Innovators would have us believe that Populus doth sometimes signify only the Lay-Lords met in these Ancient great Assemblies in distinction only from the Clergy as when our Annals or Records mention Clerus Populus as they often do it is not say they to be understood as if the Common people met but only those of the higher Rank the Lords or Nobility Therefore I have cited Tacitus who speaks of the Plebs or Plebeians who used to meet to consult of the greatest Matters De Majoribus Omnes consultant as before was observ'd Omnes comprehends the Plebeians and excludes none But under their favour Populus does most usually signify All but the highest Rank and is exclusive to them only though sometimes by way of distinction from the Prince or Clergy Thus in that old lofty Title of the Roman Republick Senatus Populùsque Romanus where the word Populus is exclusive of the Senate and distinct from it Thus Learned Vinius the Civilian in his Commentaries upon the Imperial Laws Page 12. says Plebs à Populo dissert Nam appellatione Populi Universi Cives significantur Connumeratis etiam Patriciis Senatoribus Plebis autem appellatione sine Patriciis Senatoribus caeteri cives significantur but in no Author till among these new Writers of ours does Populus signify the Lords or Patricians exclusive to the middle or common sort as they would have it To come to the times of the Saxons who next succeeded the Romans even in the time of the Heptarchy We have one Instance or Precedent in the time of Ina King of the West-Saxons which was the most Powerful of all the Seven and at last swallowed up all the rest Lambert in his Book De Priscis Anglorum legibus Fol. 1 mo beginning with King Ina Anno 712. says He made his Laws suasu Instituto Episcoporum suorum Omnium Senatorum suorum Et Natu Majorum Sapientum Populi sui in Magna servorum Dei frequentia Brampton the Historian as Mr. Selden cites him renders it Multáque Congregatione servorum Dei and Lambert again Fol. 62. says King Edgar Anno 959. who was one of the English Monarchs after the time of the Heptarchy gave his Title to his Laws thus viz. Leges quas Rex Edgarus frequenti Senatu Sancivit and afterwards Fol. 148. in a remembrance and recital of some of King Ina's Laws it is said Hoc factum fuit per Commune Concilium assensum Omnium Episcoporum Principum Procerum Comitum no word of Baronum for they were not in being till afterwards in the time of the Normans But the title of King Ina's Laws goes on and says further Et Omnium Sapientum Seniorium Populorum totius Regni that is in English The Common-Council of the whole Nation was made up of all these and but One Body In the time of King Etheluph King of West-Sex there was a great Assembly or Parliament says Mr. Selden held at Winchester Anno 855. now above 800 years since Where were present the Archbishop but one Bishops and Ducum Comitum Procerúmque totius terrae aliorúmque fidelium Infinita Multitudo for which he cites Ingulphus This was at that time the Supreme Judicature and the last Resort There was a Proceeding in a Civil Cause before their Supreme Court or Witena-Gemot under King Eldred Son to King Edgar who began his Reign says Dr. Heylin Anno 978. one Leoffius had bought Land of Adelwold Bishop of Winchester and denied to pay for it And he had also dis-seis'd the Bishop of certain other Lands Edicitur placitum apud Londoniam where the Duces Principes Satrapae ex omni parte confluerant which word Satrapae extends to the middle sort as I shall show by and by The Bishop corà m cunctis suam causam patefecit he opened and pleaded his own Cause before them all Quâ rè benè ritè ac apertè ab omnibus discussa not commanding the Parties and Auditors to withdraw while it was debated by the Court Omnes reddiderunt Iudicium on the Bishop's side This Case is also mention'd by Mr. Selden in his Titles of Honour Page 633. One case more that I shall trouble the Reader with of the Saxon times shall be that of Earl Godwin in the time of Edward the Confessor Seld. ib. 634. There the King himself in his own person did Sue an Appeal of Murder against Earl Godwin for the death of Alfred The Witena-Gemote sate at London and the Cause was heard before Omnes Regni Magnates where the word Magnates comprehended also persons of the middle sort as well as those of the highest Rank as I shall clearly prove but the matter was compounded and twelve Earls bought it off with as much Money as Each of them could carry to the King in their Arms. Note this was in the time of a Saint King too viz. St. Edward I come now to the times
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