his Title was who indeed was all one with a Pro-rex or Viceroy and whose Office wholly ceased in the time of King Edward the First may now be used by the Chief-Justice of the Kings-Bench who often hath the same Title as Capitalis Iustitiarius Angliae given him Nobilis says Mr. Selden in the Saxon times denoted every Gentleman Now because Nobilis in our times is mostly restrain'd to the Peers of the Realm whom we call the Nobility our new Writers and Arguers ascribe all that power to the Lords in Parliament which they read in the Norman Translators such as Matthew Paris c. was Exercis'd in the Saxon times by those that in those times were stiled Nobiles when in truth that Power and Authority was in the times of the Saxons likewise in the hands of the middle sort of persons in the Kingdom as well as in those of the highest sort under the Saxon Kings and all then called Nobiles Thus Thanes who in the Saxon times signified Lords of Mannors and was not a distinction of Honour is generally translated Barones by our Norman Translators and that was not so altogether improperly done as I shall show by and by for the word Baro from the time of the coming in of the Normans and a long time after signified no more than a Tenant in Capite and was then no Title of Honour The words Nobiles Proceres Magnates Optimates and such like were not in the Saxon times restrain'd to the men of the highest Rank such as our Earls and Barons are now but extended to all persons of the better sort and above the vulgar Not only to Patricians and those of the Senatorian Order to speak in the Roman dialect but also to those of Equestris Ordinis excluding none but the Ignota Capita or sine Nomine turba such as the Romans stiled Plebeians Sir Henry Spelman in his Glossary Page 84. Avo Henrici primi says he Procerum Appellatione computari videntur Omnes maneriorum Domini So that Titles in the Saxon times and in the beginning of the Norman times did all resolve themselves into possessions of Lands and were feodal For the word Magnates it most clearly includes also those of the middle sort or as I may term it in the now dialect of the lower Nobility Mr. Petit of the Temple in his Book of the Ancient Right of the Commons asserted cites a Record in the Tower Tertio of E. 2. membrana 16 ta dorso Rotulo clauso where there are these words enter'd viz. Inhibitio nè qui Magnates viz. Comes Baro Miles seu aliqua alia Notabilis persona transeat ad partes transmarinas So that by this videlicet Milites are comprehended under the word Magnates and Nobilis is no more than Notabilis Fleta lib. 2. cap. 42. fol. 93.37 H. 3. In majori Aula Westm. in praesentia Regis Archiepiscoporum Episcoporum Abbatum Priorum Comitum Baronum Militum Et Aliorum Magnatum regni Angliae c. which allows Milites to be Magnates in the time of King Henry the Third and some inferior to the Milites under the word Aliorum Lambert in his Book De priscis Anglor Legibus Fol. 176. recites verbatim a Charter of King Henry the First de Confirmationibus legum Edwardi Regis Testibus Archiepiscopis Episcopis Baronibus Comitibus Vice-comitibus Et Optimatibus totius regni Angliae So that the word Optimates stoop'd as low as to Knights and Sheriffs for there were no Vicounts till long after the time of King Hen. the First The same sense of the words Magnates Proceres appears in a Record of the Exchequer in the King's Remembrancer's Office inter Communia brevia de termino Trinitatis 34. E. 1. Nay the words Baro Baronagium which one would think should be Propria quarto modo to our Peers and should be peculiar and characteristical Notes of distinction between Peers and all others their Inferiors These very words had a much larger extent and were comprehensive of all Tenants in Capite Nay communicable to all Lords of Mannors if not to all Freeholders And this for a long time after the coming in of the Normans who introduced them first amongst us And the very Title of Barones gives all our Peers whether dignified with those higher Titles of Dukes Marquesses Earls or Vicounts the sole Right of Sitting in the House of Peers and they Sit there Eo nomine and not meerly by force of those higher Titles Hence it is I presume that those higher dignities are never conferr'd alone but accompanied at least with that most peculiar Title of the Peers I mean the Barons Now nomine Baronagii Angliae Omnes quodammodo regni Ordines continebantur says Learned Cambden in his Britannia Page 137. And Sir Hen. Spelman in his Glossary Page 66 67 68 69 70. Upon the words Barones Comitatûs says Hoc nomine contineri videtur antiquis paginis Omnis Baronum feodalium species Proceres nempè Maneriorum Domini nec non liberi quÃque Tenentes Anglicè Freeholders qui Iudiciis praefuere Aulae Regiae the then highest Court of Judicature Selden in his Notes upon Eadmerus Fol. 168. The same Learned Author in his Titles of Honour Fol. 609.691 tells us that in the beginning of the Reign of William the First Honorary or Parliamentary Barons were only Barons by Tenure and created by the King 's Writ or Charter of good Possessions whereby William the First reserved to himself a Tenure in Chief by Knight's Service or by Grand Serjeanty And that Knights Service was to serve the King upon occasion with such a number of Men at Arms as was reserv'd by the Charter or Grant and this is called a Tenure per Baronagium and the number of all Knights Fees out of which Baronies were made up amounted as Ingulphus who lived in the Conqueror's time says to Sixty thousand Knights or Men of War Now these Tenants in Capite were the most of those that made up the great Assembly called a Parliament and they were the Judges of the Supreme Judicature for as Mr. Selden says in those times Tenere de Rege in capite and to be a Baron or to have a Right to sit with the rest of the Barons in Councils or Courts of Judgment according to the Laws of those times are Synonomies and signify the same thing All these Tenants in Capite had the whole Kingdom been put into a Scale and weighed as Bocaline the Italian weighed all the Princes and States in Europe These Tenants in Capite I say made up the greatest part of the weight I may say the whole weight if Land only were to be weighed For under these Tenants in Capite by degrees in process of time all the Freeholders derive their Estates who are therefore to be accounted as cast into the Scale with the Tenants in Capite who originally had all the Lands For Lease-holders Farmers and Copy-holders are but in the nature of Servants
chose those that the Saxons call'd Heretoches or Ductores Exercitus whom according to the dialect of the present times we call Lord-Lieutenants and Deputy-Lieutenants and the rest of the Commanders These they chose at their Folk-moot or County-Court These Freeholders chose the Sheriffs of the several Counties which we all know by sad Experience many times nearly concerns our Lives Estates and Liberties For these Sheriffs have the posse Comitatus and the Return of Juries and the Execution of all publick and private Justice These Freeholders had the Election of the Conservators of the Peace who had that power which is now in the hands of the Justices of the Peace and hath been so from the beginning of the Reign of King Edward the Third at which time it was wrested out of the hands of the Freeholders by an Act of Parliament procur'd by Queen Isabel during the Life-time of her deposed Husband and in the Minority of her Son King Edward the Third meerly to gain the power of the Kingdom into the hands of her party that she made against her Husband the deposed King And ever since the Conservation of the Peace hath been in the hands of the Commissioners or Justices of the Peace This we are taught by our Acts of Parliament and by the Learned Lawyer and Autiquary Mr. Lambert in his Eirenarcha Fol. 16. and 19 20. and 147. and by Sir Edw. Coke in his Second Instit. Fol. 174 and 558. These Freeholders ever did and still do to this day chuse the Coroners who were heretofore the most sufficient Knights of the County And they still chuse the Verderors where there are any Forests All this appears to have been the Right of the Freeholders long before the Conquest See Lambert in his Book of the Saxon Laws Fol. 147. among the Laws of King Edward Erant aliae potestates dignitates for Power and Offices Titles and dignities in those times went hand in hand Per provincias per singulos Comitatus totius Regni constitutae qui Heretoches apud Anglos vocabantur sc. Barones Nobiles insignes sapientes Latinè verò dicebantur Ductores Exercitus Isti verò viri eligebantur per commune Concilium per singulos comitatus in pleno Folk-mote sicut Vice-comites Comitatuum Eligi debent Ità quod in quolibet Comitatu semper fuit Unus Heretoch Electus These are not the words of Mr. Lambert or meerly his Opinion and Conceit he only recites the words of the Law in the Saxon times And the Law does refer it to the times of the English or Britons for they were the men who called these Leaders by the name of Heretoches Thus we see how large an extent this word Barones did bear that it comprehended all Tenants in Capite who at first were the only Freeholders Till by Subfeodations the number of Freeholders encrease'd infinitely which caused a great alteration But the first Tenants in Capite had large Possessions Notandum est says Sir Hen. Spelman libere hos tenentes nec tam exiles olim fuisse nec tam vulgares ut hodiè deprehenduntur nam villas dominia in minutas hereditates nondum distrahebant We have set forth their Country Jurisdiction now to speak a word of their Supreme Jurisdiction Sir Henry Spelman in his Glossary tells us Barones olim de causis cognoscebant ad Aulam Regiam delatis There was the last resort and the Court of Equity King William the First says Mr. Selden in the 4th year of his Reign brought the Bishops and Abbots under the Tenure by Barony Concilio Baronum suorum which by the Proofs that I have already offered signify the Tenants in Capite and the Eminent Freeholders and a Parliament as Mr. Selden takes it The Bishops contended earnestly against it for the Power and Jurisdiction being then in the hands of so great a number it made it the less desirable so that as Sir Hen. Spelman tells us The Clergy look'd upon it as a diminution of their former Immunity and Freedom which they had assum'd and adjudg'd due to themselves Detrahere videtur nomen Baronis ab Ecclesiasticarum Immunitate quam tunc Ecclesiastici maximè splendebant Hoc nostratibus says Sir Henry Spelman jugum injecit Omnium Primus Willielmus Senior But in the Tenth year of King Henry the Second Thomas of Becket that proud and insolent Prelate would have cast off this Yoke again like a Son of Belial and he stifly stood upon the Exemption of the Clergy Then says Selden that great Parliament at Clarendon was held And Roger of Hoveden says that Clerus Populus Regni were then Assembled which Mr. Selden expounds to be a Parliament In this Parliament says Selden those Avitae consuetudines which made the great quarrel between Thomas of Becket and King Henry the 2 d. were Recogniz'd And it is very material towards the deciding of another great Controversy that has of late been agitated that Custom for the Prelates withdrawing from matters of Blood is recited as one of these Avitae Consuetudines for the Bishops as I observ'd before out of Mr. Selden had places in those general Conventions in all the times of the Saxons And in all those times it seems it was their custom to withdraw For it was Avita Consuetudo and we know that Customs must be exactly pursued And this Custom is acknowledg'd and declar'd by Act of Parliament the Parliament at Clarendon Though by the Ancient Canons of the Church which was the ground of that Custom at first it was left to their own choice Among those Articles this was one Quod Archiepiscopi Episcopi Universi Personae qui de Rege tenent in Capite habeant possessiones suas de Rege sicut Baroniam sicut caeteri Barones Debent interesse Iudiciis Curiae Regis cum Baronibus quoúsque perveniatur ad Diminutionem membrorum vel ad Mortem Who these Barones were in those times most plainly appears by this very Law viz. They are such Qui tenent de Rege in Capite And what their Right and Power and Jurisdiction is for which purpose I chiefly cite it debent interesse Iudiciis Curiae Regis This Curia Regis plainly appears to be the Supreme Judicature which we are enquiring after and which some late Writers conceive did in all times belong to the House of Peers but 't is a mistake in them by occasion of the word Barones mention'd in it And they think it bears their Signature and peculiarly belongs to them Whereas by this Law it undeniably appears to belong to that vast number of Tenants in Capite And if we may believe Sir Henry Spelman who is fide-dignus the Honour was so much the less because it was transferrable Cum autem feodales isti Barones nomen dignitatémque suam ratione fundi obtinuerint transferre olim aliquando videatur cum ipso fundo The Terra did transire cum Onere for so the Honour being accompanied with a Duty
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
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