Collection made of Customs and Orders of the Lord's House and of their Privileges made out of Records And he presented that Collection to the House and desir'd it might be preserv'd as a Memorial whereunto men may resort as occasion should require and make use of it It was thereupon ordered by the House to be delivered to the Clerk to be kept for that purpose So that this was intended by the whole House of Lords to be a Standard whereby to measure and judge of their Jurisdiction and Privileges for the future I find the Title of that Committee Fol. 91. to be A Committee for searching for Precedents for Judicature Accusations and Iudgments anciently used in this High-Court of Parliament This shows it must be an ancient Usage or nothing Therefore late and modern Usage and Precedents are in the Judgment of the Lords of no great Weight to Entitle them to a Jurisdiction Moreover Fol. 105. of that Journal there is an Order made 27. Mar. 1621. for Collection of Money among the Peers to pay the Charge for searching for Records in the Tower and elsewhere and to have Copies of them certifi'd under the Officer's hands Every Earl and Viscount was to pay Forty Shillings and every Bishop and Baron Twenty Shillings I have perus'd that Book Entitled A Collection of Privileges or special Rights belonging to the Baronage of England What is meant by that Title appears by the Table to the Book which consists of these Heads following viz. 1 st Iudgments Of Offences Capital Fol. 11. b. 1 st Iudgments Of Offences not Capital Fol. 25. 1 st Iudgments Upon Writs of Error in Parliament Fol. 88. Another Head is The Lords appointing Judges out of themselves for Examination of Judgments in other Courts Fol. 95. I thought this last Head or Title might afford something to our purpose relating to Appeals Under this Head there is nothing mention'd but concerning Erroneous Judgments given in the Court of King's-Bench at Westminster or upon the Statute of 27 Elizabeth Cap. 8. Of Judgments given in the Exchequer-Chamber by the Judges of the Common-pleas and the Barons of the Exchequer upon Error to Examine Judgments given in the King's-Bench from whence Error lies also before the Lords by the express words of that Statute which no doubt is therefore a very Legal Power and Jurisdiction in the Lords being Exercis'd in the method directed by Law as before is observ'd The Book of this Collection expresly takes notice That no Writ of Error lies in Parliament upon a Judgment given in the Court of Common-Pleas till that Judgment have been Revers'd or Affirm'd in the King's-Bench As it was answer'd in Parliament in the Case of the Bishop of Norwich Rot. Parl. 50. E. 3. Articl 48. The like Resolution did the Lords give after Hearing all the Judges and long Consultation and a referring the Consideration of that matter to a numerous Committee of the Lords in a Case of the late Earl of Macclesfeld wherein that Earl was Plaintiff in the Exchequer in an Action of Slander and Judgment there in that Court given against him whereupon the said Earl since this last Revolution sued Error before the Lords passing by the method directed by the Stat. of 31. E. 3. Cap. 12. for Suing Error upon Judgments given in the Exchequer And the Lords were upon the very point of Reversing that Judgment in the Exchequer but being by one of the said Judges then also sitting on the Upper Wooll-sack put in mind of that Stat. of E. 3. they did forbear to proceed to do any more upon it referring it to the Order limited by that Statute This proves That the Lords are tied to a method too in cases where they have a Rightful Jurisdiction They must not take it ad primam Instantiam nor per Saltum In that Collection I have mentioned under that Lemma of Examination of Iudgments in other Courts which is comprehensive enough I find notice taken of Hadelow's Case 22. E. 3. Fol. 3. and Flourdew's Case 1 H. 7. Fol. 20. which I cited before at large And these concern only Cases of Erroneous Judgments in the King's-Bench Under the Title of Offences not Capital there is mention of no case but upon Accusations for Criminal Causes It begins with Latimer's Accusation of Iohn at Lee for Offences against the State It mentions the Case of Richard Lyons for procuring of Patents for private advantage and of the new Impositions without Parliament It instances in the Case of William Lord Latimer accus'd by the Commons And the Case of Alice Peirse And the Case in 7 Richard the 2 d num 11. of Michael de-la-Pool Chancellor of England accus'd by Iohn Cavendish of London Fishmonger for Bribery And the Earl of Northumberland's Case 5 H. 4. num 26. and Thorpe's Case but they are all in Criminal Causes While this Committee was in being I meet with an Appeal made to the Lords from a Decree made in Chancery And as I take it 't is a decree made by the Lord Bacon though he is not named by his name it is Fol. 181. in the Journal of the Parliament 18. Iac. 1621. The Third of December in that Parliament Sir Iohn Bourchier by Petition Appeals to the Lords from a Decree in Chancery wherein he himself was Plaintiff against Iohn Mompessom and others and there were cross Suits and they were about Accounts between them And Sir Iohn Bourchier had a Sum of Money decreed to him but not for so much as he thought was due and therefore he Appealed and complain'd in his Petition to the Lords of an hasty Hearing of his Cause in Chancery and that his Witnesses were not heard and uses the very formal word of Appeal in his Petition Fol. 188.6 December It was referr'd to the Lords Committees for Privileges to consider whether it were a formal Appeal or not I must confess it doth not clearly appear to me what the true meaning or ground of that Order is for as I now said the Petition does expresly use the word Appeal The 10 th of December Fol. 196. The Lord Archbishop of Canterbury Reported That divers Lords Sub-Committees appointed to search for Precedents ☞ cannot find that the word Appeal is usual in any Petition for any matter brought before them This deserves to be noted So that it seems the Lords Committees understood the meaning of their Order to be to search for Precedents if there had been any where the Lords had used in former times to admit of and to receive Appeals before them against Decrees made in Chancery or in any Court of Equity The Archbishop further Reports That they could not find so much as the word Appeal used in any Petition and that it must have been by way of Petition if any way This shows the Novelty of it for he likewise reports That all matters complain'd of before the Lords must be by 〈◊〉 Petition and in no other Form And that the Ancient accustom'd Form of
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
all that vast Power and Jurisdiction which they read in our Ancient Histories to be exercised by the National Assemblies in the Times of the old British Saxon Danish and Norman Kings Thus Writes Mr. William Pryn in his Plea for the Lords and House of Peers Page 164. That the House of Peers had this Sovereign Jurisdiction vested in it both in the Times of the Brittish Saxon Danish and Norman Kings and other Modern Writers Chyme in with him Whereas it is most Evident by our more Ancient and most Judicious Authors and Antiquaries That the great Assemblies which were convened in Ancient Times here in England were quite of another Constitution and Complexion from the now Two Houses of Parliament and had no resemblance to them It was in those Ancient Times but one great and numerous Assembly that met Not distinguish'd either by those several Terms of Lords and Commons or by Two Houses the Upper and the Lower nor by any other dividing Titles Those great Assemblies had under our several Kings and together with them the whole Legislative and Judicial Power with little distinction to be found in the Exercise of those Two mighty Powers The Members of them were not qualified neither by any Title of Honour though there might be honorary Titles in those Times but they were qualified and entitled to their Power by their Possessions and Tenures and some few by certain great Offices This great Assembly could not properly be called The Representative of the Nation for they came not all to these Assemblies as chosen by the People but most of them came thither in their own Personal inherent Right and might more justly be call'd the Principals of the Nation and look'd upon as the true Owners and Proprietors of the Nation accounting the Land-Interest to be the main and the true and stable Interest and might therefore truly be termed The Nation it self Assembled or the People Assembled It was the Land-Interest then that gave both Honour and Power Dat Census Honores yet it cannot be denied but that the Ancient Boroughs did Elect their Representatives even in the most Ancient Times who were at first a small part of these great Assemblies though now much more numerous and weigh down the ballance and this is proved to have been long before the Time of King Henry the Third though those late Writers date it from that time only It would be folly to undertake to give any clear or large account of the Supreme Judicatures that were in the Times of the Ancient Brittons Saxons or Danes which many of our late Writers pretend to do For Tacitus in the Life of Agricola tells us of the old Brittons that at the time of the coming of the Romans into this Land they did not so much as in Commune Consulere that is they had no Common-Council nor did they meet together to Consult how to repel their common danger but were divided into a multitude of Feuds and Factions under their Reguli or pretty Princes Rarus duabus tribusve Civitatibus ad propulsandum Commune periculum Conventus After the Britons were wholly subdued by the Romans they receiv'd Law and Magistracy from their Conquerors Net legibus suis patriis uti permissi sunt though it is impli'd that they had Laws of their own Sed Magistratus à populo Romano cum Imperio securibus missi qui jus dicerent says Learned Cambden in his Britannia Page 48. for which he cites his Authors The Saxons who succeeded the Romans divided the Nation into Seven parts and Constituted the Heptarchy It were in vain to search for an House of Lords or any one Supreme Judicature all that time for all the Nation The Supreme Judicature in those times must be Seven in number if any for the Seven were Independent one of the other Most part of the State of the Saxon Government is so obscure says our great Selden that we can see only Steps or torn Relicks of them rather than so much as might give full satisfaction If there be any thing in their times to our purpose that is concerning one Supreme Court of Judicature to which the whole Nation was subject it must fall towards the latter end of the Saxon Times After Egbert King of the West-Saxons had reduced the other parts of the Heptarchy under his Obedience when they did in unum coalescere and were all seven melted down into one Mass. And after the several Governments and parts were united though the Government was but One yet there were Three several and distinct Laws remain'd in force which had their several Limits and Precincts See Lambert De priscis Anglorum Legibus Page 180. And these were not meerly some certain different Customs for so it is to this day in our several Counties as of Gavelkind and Burrough English c. but they were under Three distinct Systems or Bodies of Laws so that it could not be any way practicable during that time to have any one great Court of Judicature for the whole Land By which of those Three Laws should that great Judicature have proceeded But after some time those Three different Bodies of Laws were found incompatible with one entire Government as it came to be at last and therefore King Edgar a Saxon King out of these Three Bodies of Laws by the Counsel of his Wise men Compos'd one great Body of Law to be observ'd by the whole Nation of England And Edward the Confessor gave new Vigour and Life of this new Body which was afterwards extracted out of those Three Old Bodies of Laws and are indeed the Fountain and Materia prima of that which we now call The Common-Law of England From these we derive our Trials by Twelve Men our levying of Fines of Lands and the Offices of Sheriff Coroner Constable and many more of our Laws Customs and Offices continued amongst us ever since unto this day And these are those good Old Laws of King Edward the Confessor which William the First who is stiled the Conqueror did more than once swear to govern by which proves him to be indeed no Conqueror And these make up the greatest part of Our Magna Charta I shall mention some few Precedents in the time of the Saxons of their Supreme Judicature and examine what resemblance they bear with that used at present amongst us And then I shall give some account of the Supreme Court of Judicature in the beginning of the Norman Government during the time of their first Six or Seven Kings and by the way still examine how justly any Court now in being can be said to derive their Power from them and to Sit and succeed them in their Seat And in the last place I shall make my Conjecture how and at what time the Magnum Concilium in Parliamento or the House of Peers first began to exercise the Supreme Judicature And while I run through the Precedents and cite my Authors whoever reads them may at the
same instant make their Observation of these particulars ensuing which I conceive will evidently result and arise from them 1. First That the Supreme Power of Legislature and the Supreme Power of Judicature which yet are distinct things in themselves for it is one thing jus dare and another thing jus dicere both these high Powers I say under our several Ancient Kings resided in one and the same Assembly consistting of the very same Persons but with different methods in their way of proceeding that is whoever had an hand in the Legislature was not excluded from the Judicature wherein it differs from our present Constitution which is that the House of Peers who have but a share in the Legislature yet now claim to themselves the sole power of Judicature as the last resort 2. Secondly Another thing that I shall observe out of the several Precedents and Authors that I shall mention is this That the great Convention and Assembly that anciently had these Two great Powers of Legislature and Judicature were but one entire great Body and Assembly not divided into two or more parts nor distinguish'd as now into Two Houses or by the names of Lords and Commons but these Powers resided equally in them Tota in Toto 3. Thirdly That all or the far greatest part of the Members of these great Assemblies came not thither by the choice or at the will and pleasure of the Prince as he thought fit to single them out by name as Peers are made usually nor did they all come by Election or Office though there were some of both those sorts viz. The Bishops and the Burgesses of the Burroughs but the far greatest part came by a certain Right they had to meet in those Assemblies but what gave them their Right or qualification or capacity so to meet doth not so clearly appear to an hasty Reader of our History and Antiquities It is evident it was not any meer Title of Honour or Dignity for Anciently in England there were not any Dignities but what were also accompanied with Offices and ceased with the Office But it did proceed from their Lands and Posessions which as they gave them Honour so they gave them Power and Authority in those Ancient Times And this they learnt from the Romans whose Example was followed herein by most of those Nations that had fallen under their Conquest 4. Fourthly These Assemblies were very great and numerous far exceeding in number both Houses of Parliament at this day were they both put together so that they cannot with any colour of Reason be thought an Assembly of Lords only as our Novel Writers would impose upon us for it is absurd to think that so great a number should be all Lords for then there would be none left in the Nation to bear the Character of Commons save only the Plebs or Faeces Populi And the Title or Distinction of Lords cannot subsist without a body of some Inferiors from whom the Lords may be distinguish'd Tolle Relatum tollis Correlatum 5. Fifthly Though the Freeholders of the several Counties did not then as now meet in those Assemblies by their Representatives duly chosen so that any Assembly could properly be said to be the Representative of all the Commons of England which is much insisted on by our new fort of Authors who would decry and depress the House of Commons as being but of yesterday in comparison with the Antiquity of the House of Lords that is but from the Nine and Fortieth year of King Henry the Third whereas the Lords have been as they affirm from time immemorial and co-aeval with the Nation it self yet which is more in Vindication of the Antiquity of the Commons in Parliament it will appear that the Freeholders generally met there themselves in the great Assemblies then used in their own proper persons undistinguish'd by any such Terms of Lords and Commons and all were upon the same level A Representative is but of the Nature of a Deputy or Delegate to supply the place of one that is absent such as in the House of Lords they call Proxies who sometimes have been such as were no Members of that House and such as in the Convocation of the Clergy they call'd procuratores Cleri But the great Freeholders as being the Principals rightly called may more properly and in a true genuine sense be stiled The National Assembly Those met in their own proper personal Capacity for the Land-Interest in the hands of the true Owner the Freeholder is the only true stable permanent fixed Interest of the Nation The Farmers and Copy-holders were at first and in Ancient Times look'd upon and accounted but as Servants and Dependants upon the Freeholders and little regarded by the Common-Law And for those that followed Merchandize and Trade though they ever sent to these great Assemblies by Election the Manufacture of Woollen Cloth greatly flourishing in the Reigns of King Henry the Second and King Richard the First which gave occasion to those Ancient Guilds or Societies that were setled in Lincoln York Oxford and other Cities and Ancient Burroughs in England which Trade was wholly lost in the troublesome times of King Iohn Henry the Third Edward the First and Edward the Second And then our Trade ran in Woolls Wooll-fels and Leather carried out in Specie till recover'd again by the peaceable times of King Edward the Third as the most Learned in the Law the late Chief Justice Hales does assert in his Origination of Mankind yet those Ancient Burroughs were not then so numerous in those Elder times nor were the Traders then in so great Esteem as having to do in Moveables only and a transient Interest and as we use to say Here to day and gone to morrow and were therefore of an Inferior account and made no great Figure And it was then a Legal Disparagement for the Guardian in Chivalry to marry the Ward being the Heir of a Freeholder that held by Knights's Service to the Daughter of the Burgess of a Burrough 6. Sixthly The last Observation shall be this That the Freeholders encreasing at last in their number by the sub-dividing of their posessions and tenures and thereupon growing seditious and tumultuous and an unwieldly Body and less valuable and venerable in their Individuals and particulars Mole ruebat suâ they came to be divided and the greatest part of them at last discontinued their coming to these Assemblies and so they broke in two and fell into two Houses and their Powers became parted between them and one part assum'd or had assign'd to them some of the Powers and the other part what was left Cúm quercus decidit unusquÃsque ligna colligit Yet there is reason to think that it was thus distributed and determin'd by Agreement in a National Assembly These Observations and Conclusions I have thought fit and proper to propose before I peruse the Precedents and cite my Authors That the Reader may take notice by the
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