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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A26147	A treatise of the true and ancient jurisdiction of the House of Peers by Sir Robert Atkyns ...	Atkyns, Robert, Sir, 1621-1709.	1699 (1699)	Wing A4144; ESTC R31568	35,905	42

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

King tells us what those Mischiefs were When in that disorderly troublesome Reign the Lords were so divided into Feuds and Factions that the Lords who were to be the Judges became Parties and were Appellants one against another This was the mischief Then for the practice after the making of that Act that Law was never intended according to the generality of the words to exclude all Appeals whatsoever but such only as were at the suit of private persons For the constant practice hath been ever since as well as before to admit of Appeals in Parliament when they come to the Lords by Impeachment from the Commons The Lords had and still retain the Jurisdiction over their own Members for trial of Peers in cases Capital The Lords had and still have the Jurisdiction in Writs of Error to examine Judgments given in the King's-Bench but this was under certain Rules and with some restraint for constant and quiet usage and practice do warrant all these Let us enquire into the placita Parliamentaria I mean those that are publish'd by Mr. Ryley of the times of King Edward the First King Edward the Second c. and observe what light they give us The true Title of those Pleas are Placita coram ipso domino Rege ejus Concilio ad Parliamenta sua In which Titles Regis Concilium Parliamentum seem to be distinguish'd and to signify two several things as in truth they did When and how came these Pleas to be discontinued ever since the time of Edward the 4 th When did the Law pass that restrain'd them We have not one such Plea to any effect between the time of King Edward the Fourth and the time of King Iames the First nor from thence to this day near 300 years What is come in the place of them The Placita Parliamentaria were in a strict and regular form of Pleadings The Petition of Declaration the Plea the Replication the Rejoinder and the Continuances entred upon Record in Latin and the process was by Latin Writs and all the Proceedings entred upon Record in Latin as Proceedings at the Common-Law ought to be How came this to be altered All of later times at least before the Lords are in English and the process are English Orders only Had these Placita been before the Lords how happens it that there are so few if any Reports among them of Pleadings upon Writs of Error which the Lords claim as out of all dispute to be within their Jurisdiction Hardly any of these are to be found amongst them and these had been worthy Reporting being in matters difficult weighty and full of Learning What was this Regis Concilium so constantly mention'd in these Pleas as those before whom they were held ☞ Amongst these Records and Pleas we find All the Peers themselves in a Body several times petitioning to the King and this Council and receiving Orders and Rules from that Council It is absurd to think that all the Lords in a body would petition to themselves as at the Parliament held 14 th of Edward the Ryley's Placita Parliamentaria pag. 425. Ex parte Praelatorum Comitum Baronum aliorum porrecta est petitio in hoc Parliamento in haec verba A nostre Senior le Roy a Son Counceil monstrent les Erce-evesque Praelats Counts Barons les auters grantz Seigniors dela terre Concerning payment of Escuage And the Answer to this Petition is per Concilium Regis the like ib. pag. 448. We have another Example of it in the Appendix to that Book viz. of the time of 18 Edward the Second pag. 619. wherein the Lords in a body pray liberty to approve or improve their Mannors without the King's License And the Answer to it is That it could not be done without a new Law to which the Commons would not consent It is evident in those Records and Pleas that others are mention'd to be of that Council then the Peers as pag. 266 and 331. There is an Inhibition by the Treasurer and the Concilium Regis not to deliver a Prisoner and page 386. 14 th Edward 2. the King appointed who should receive Petitions at the Parliament and who should Answer them And those that were appointed to Answer them are called Triers of Petitions These seem to be the persons that made the great Council or the King's Council as they are called in those Records These in Parliaments of late have been wholly discontinued We find this Council while they were in being sate in Places where we cannot reasonably suppose that the House of Lords ever sate as pag. 87. in Mr. Ryley's Placita Parliamentaria Coràm Rege Concilio apud Lond. in domo Ottonis de Grandissono extra palatium ipsius Domini Regis apud Westmonasterium And pag. 98. at Bergavenny and pag. 108. at Stilbeneth extra London which I suppose is meant of Stepney And the Judges are mentioned as Members of this Council pag. 140. not meer Assistants Now we come to Writs of Error wherein it is generally admitted that the Lords have a Jurisdiction and from thence as I suppose it is inferr'd by a parity of Reason that they likewise have a Jurisdiction in Appeals from Courts of Equity An Appeal from a Decree in Equity being something of the same nature with a Writ of Error at the Common-Law It is true our Law-Books are full of this Title and speak of Error sued in Parliament But under favour it is not of an universal Jurisdiction in all Cases of Erroneous Judgments but with divers Restrictions and under certain Rules in our Law-Books It hath been often Resolv'd that the Lords cannot proceed upon any Writ of Error till first the King hath Sign'd a Petition for the Allowance of a Writ of Error to be sued out As in the Year-book of 22 Edward the 3 d. Fol. 3. It is there held that a Writ of Error in Parliament lies not till the King be petition'd for it and till the King have Sign'd the Petition Which Signing is indeed the Commission which gives the Authority And in the case of Edward Hadelow where Judgment was given for the King Upon the King's Signing a Petition for a Writ of Error and the Writ sued out the Roll in which the Judgment was entred was brought by Sir William Thorp Chief-Justice of the King's-Bench into the Parliament Upon which the King assign'd certain Earls and Barons and with them the Iustices to hear and determine the business And before it was determin'd the Parliament was ended yet the Commissioners sate still but the King was gone And it was urged before the Delegates for so they are called That the Judgment could not be Revers'd except in Parliament and there it is said that the King hath no Peer in his Land and that they cannot judge the King How came that in to Debate Why it was in the Case of an Outlawry which is always for the King's benefit and