Robert Atkyns (judge)
Encyclopedia
Sir Robert Atkyns KB
KS (1621–1710) was an English Lord Chief Baron of the Exchequer
, Member of parliament, and Speaker of the House of Lords.
, one of the barons of the exchequer during the Commonwealth
, and the elder brother of Sir Edward Atkyns
, who preceded him as lord chief baron. There had been lawyers in the family for many generations: "He himself, and his three immediate ancestors, having been of the profession for near two hundred years, and in judicial places; and (through the blessing of Almighty God) have prospered by it." In The History of Gloucestershire written by his son Sir Robert Atkyns
(d.1711) the record of the family is carried still further back, in an unbroken legal line, to a Richard Atkyns who lived at the beginning of the fifteenth century, and "followed the profession of the law in Monmouthshire." Robert Atkyns was born in Gloucestershire in 1620. It is not certain whether he went to Oxford or to Cambridge, Alexander Chalmers
including him among the famous men of Balliol College, and George Dyer among those of Sidney Sussex College. Chalmers's statement may have originated in the fact that in 1663 Atkyns received from Oxford the degree of master of arts. In 1638 he was admitted to Lincoln's Inn
, and was called to the bar in 1645. Mention of his name is made in some reported cases.
's parliament as member for Evesham
. Probably he was already known to sympathise with the king's party, for he was among the sixty-eight who were made knights of the Bath
at Charles
's coronation. His name does not appear in the list of members of Charles's first parliament, but in that of 1661 he sat for East Looe
, speaking frequently upon legal questions, and, as appears from the record of the debates, with acknowledged authority. In 1661 he was made a bencher
of his inn and a King's Serjeant, and about the same time was appointed recorder
of Bristol. He served as one of the fire judges
after the 1666 great fire of London
. On the death of Sir Thomas Tyrrell
in 1672 he became a judge of the court of Common Pleas.
Along with Sir William Scroggs
he was engaged in some of the trials for the Popish Plot
, but there is little trace of the part which he took. He shared in the opinion that papists should be sternly dealt with; yet, to judge from his writings and his later life, it is inconceivable that he could have shared in the passion of the time. The chief civil case in which Atkyns took part during this period was that brought by Sir Samuel Barnardiston
against Sir William Soame, the High Sheriff of Suffolk
, which led ultimately to the passing of the act 7 & 8 Wm. III, c. 7, declaring it illegal for a sheriff to make a double return in the election of members of parliament. The points of the case are technical, but it excited keen political interest, and Atkyns's judgment, in which he differed from the majority of the court, marks the beginning of his separation from the party in power (reprinted in his Tracts, and in 6 St. Tr. 1074). In 1679 he retired from the bench in circumstances which lead one to believe that he was practically dismissed. Being questioned before a committee of the House of Commons in 1689, he mentioned several causes for his enforced retirement.
His judgment in Barnardiston v. Soame had given offence; he had declared against pensions to parliament men; he had quarrelled with Scroggs about the right to petition; and he had offended North by speaking against the sale of offices. "As to pensions, Lord Clifford took occasion to tell me 'that I had attended diligently in parliament, and was taken from my profession, therefore the king had thought fit to send me £500' I replied: 'I thank you. I will not accept anything for my attendance in parliament.' ... I did take occasion upon this to advise my countrymen 'that those who took pensions were not fit to be sent up to parliament again'". In fact Atkyns was marked out as a disaffected man. He settled in Gloucestershire, with the intention of abandoning the law, but his political opinions again brought him into trouble. When the Oxford Parliament
was summoned, he was persuaded, though unwillingly, to stand for Bristol
, but was defeated by Sir Richard Hart and Thomas Earle, both Tories. A strong party in the city, not content with his defeat, sought to force him to resign the recordership. The occasion was found in an illegality of which Atkyns along with others was said to be guilty in proceeding to the election of an alderman in the absence of the mayor, who was the same Sir R. Hart. The prosecution failed, but "Sir Robert Atkyns, on the Lord Pemberton
's and his brother's persuasion, resigned his recordership; which was all that the city of Bristol aimed at by their indictment". In the following year came the trial of Lord Russell
; he could not appear by counsel, but his friends exerted themselves in the preparation of his defence, and applied to Atkyns, who wrote to them a statement of the law. "And the like assistance being afterwards desired from me, by many more persons of the best quality, who soon after fell into the same danger, I, living at some distance from London, did venture by letters, to find the best rules and directions I could, towards the making of their just defence, being heartily concerned with them". Five years afterwards he published the letters, together with A Defence of the late Lord Russel's Innocency, a spirited and eloquent reply to an anonymous pamphlet called An Antidote against Poyson. To a rejoinder from the same pen, The Magistracy and Government of England vindicated, he wrote in answer The Lord Russel's Innocency further defended, assailing his opponent with abuse and almost expressly naming him as Sir Bartholomew Shower
. In point of legal criticism Atkyns's letters and pamphlets are effective and still worth reading, but they do not shake the received opinion that the law of treason was not strained against Lord Russell. In 1684 we find his name associated with another great case, when Sir William Williams, the speaker of the House of Commons
, was indicted for printing and publishing Dangerfield
's narrative of the Popish Plot. Williams had acted under the orders of the House, so that the case raised the whole question of the powers and privileges of Parliament. Atkyns's argument in his defence is an elaborate review of the authorities, to show that the actions of Parliament, itself the highest court of the nation, were beyond the jurisdiction of inferior courts. Judgment was given against Williams, but in later cases the decision has been described as disgraceful. The report in the State Trials says that Atkyns took part in the case, and even notices that he had to borrow a wig for the purpose; but in the other reports there is no mention of his name as counsel.
His steady attitude of resistance during these years of misgovernment met with recognition at the Revolution
. In 1689 he succeeded his brother as chief baron, and in October of the same year, the great seal being in commission, he was appointed speaker of the House of Lords in the place of the Marquis of Halifax
. He held the speakership until 1693, and for his services was recommended by the House to the king's favour. Towards the end of the following year he retired from the bench – through disappointment, it has been said, at not being chosen master of the rolls
, but more likely owing to advancing age. Yet he still gave proof of continued vigour. In a pamphlet published in 1695, and "humbly submitted to the consideration of the House of Lords, to whom it belongeth to keep the inferior courts within their bounds," he renewed Edward Coke
's protest against the insidious encroachments of the court of Chancery
, tracing the growth of equitable jurisdiction, and suggesting how the common law
might be restored. This was followed a few years afterwards by another tract, addressed as a petition to the House of Commons, in which, while repeating his complaint against the court of Chancery, and lamenting the uncertainty of the law, he argued from the history of Parliament that the exercise of judicial functions by the Lords was a usurpation. It should be read along with Skinner's case
, in which the Lords failed in their attempt to exercise an original jurisdiction, and Dr. Shirley's case, in which they maintained their right to an appellate jurisdiction. Atkyns had himself, while in parliament, taken a vigorous part in this struggle. After 1699 we hear nothing more of him till his death. He spent his later years at Sapperton
Hall in Gloucestershire
, and died 18 Feb. 1710, a few weeks before his 90th birthday. Lord Campbell
calls him a "virtuous judge," in what was an age of judicial scandals.
Order of the Bath
The Most Honourable Order of the Bath is a British order of chivalry founded by George I on 18 May 1725. The name derives from the elaborate mediæval ceremony for creating a knight, which involved bathing as one of its elements. The knights so created were known as Knights of the Bath...
KS (1621–1710) was an English Lord Chief Baron of the Exchequer
Lord Chief Baron of the Exchequer
The Chief Baron of the Exchequer was the first "baron" of the English Exchequer of pleas. "In the absence of both the Treasurer of the Exchequer or First Lord of the Treasury, and the Chancellor of the Exchequer, it was he who presided in the equity court and answered the bar i.e...
, Member of parliament, and Speaker of the House of Lords.
Early life
He was the eldest son of Sir Edward AtkynsEdward Atkyns
Sir Edward Atkyns SL was an English judge, a baron of the exchequer of the Commonwealth period.-Life:He was the third son of Richard Atkyns, and was born in 1587, apparently at Bensington in Oxfordshire...
, one of the barons of the exchequer during the Commonwealth
Commonwealth of England
The Commonwealth of England was the republic which ruled first England, and then Ireland and Scotland from 1649 to 1660. Between 1653–1659 it was known as the Commonwealth of England, Scotland and Ireland...
, and the elder brother of Sir Edward Atkyns
Edward Atkyns (1630-1698)
Sir Edward Atkyns , was the baron of the exchequer and younger son of Sir Edward Atkyns, who held a similar office, was born in 1630....
, who preceded him as lord chief baron. There had been lawyers in the family for many generations: "He himself, and his three immediate ancestors, having been of the profession for near two hundred years, and in judicial places; and (through the blessing of Almighty God) have prospered by it." In The History of Gloucestershire written by his son Sir Robert Atkyns
Robert Atkyns (topographer)
Sir Robert Atkyns was a topographer, antiquary, and Member of Parliament. He is best known for his county history, the Ancient and Present State of Gloucestershire.-Life:...
(d.1711) the record of the family is carried still further back, in an unbroken legal line, to a Richard Atkyns who lived at the beginning of the fifteenth century, and "followed the profession of the law in Monmouthshire." Robert Atkyns was born in Gloucestershire in 1620. It is not certain whether he went to Oxford or to Cambridge, Alexander Chalmers
Alexander Chalmers
Alexander Chalmers was a Scottish writer.He was born in Aberdeen.Trained as a doctor, he gave up medicine for journalism, and was for some time editor of the Morning Herald...
including him among the famous men of Balliol College, and George Dyer among those of Sidney Sussex College. Chalmers's statement may have originated in the fact that in 1663 Atkyns received from Oxford the degree of master of arts. In 1638 he was admitted to Lincoln's Inn
Lincoln's Inn
The Honourable Society of Lincoln's Inn is one of four Inns of Court in London to which barristers of England and Wales belong and where they are called to the Bar. The other three are Middle Temple, Inner Temple and Gray's Inn. Although Lincoln's Inn is able to trace its official records beyond...
, and was called to the bar in 1645. Mention of his name is made in some reported cases.
Parliamentary and judicial career
In 1659, he entered Richard CromwellRichard Cromwell
At the same time, the officers of the New Model Army became increasingly wary about the government's commitment to the military cause. The fact that Richard Cromwell lacked military credentials grated with men who had fought on the battlefields of the English Civil War to secure their nation's...
's parliament as member for Evesham
Evesham
Evesham is a market town and a civil parish in the Local Authority District of Wychavon in the county of Worcestershire, England with a population of 22,000. It is located roughly equidistant between Worcester, Cheltenham and Stratford-upon-Avon...
. Probably he was already known to sympathise with the king's party, for he was among the sixty-eight who were made knights of the Bath
Order of the Bath
The Most Honourable Order of the Bath is a British order of chivalry founded by George I on 18 May 1725. The name derives from the elaborate mediæval ceremony for creating a knight, which involved bathing as one of its elements. The knights so created were known as Knights of the Bath...
at Charles
Charles I of England
Charles I was King of England, King of Scotland, and King of Ireland from 27 March 1625 until his execution in 1649. Charles engaged in a struggle for power with the Parliament of England, attempting to obtain royal revenue whilst Parliament sought to curb his Royal prerogative which Charles...
's coronation. His name does not appear in the list of members of Charles's first parliament, but in that of 1661 he sat for East Looe
East Looe (UK Parliament constituency)
East Looe was a parliamentary borough represented in the House of Commons of England from 1571 to 1707, in the House of Commons of Great Britain from 1797 to 1800, and finally in the House of Commons of the United Kingdom from 1801 until its abolition in 1832. It elected two Members of Parliament ...
, speaking frequently upon legal questions, and, as appears from the record of the debates, with acknowledged authority. In 1661 he was made a bencher
Bencher
A bencher or Master of the Bench is a senior member of an Inn of Court in England and Wales. Benchers hold office for life once elected. A bencher can be elected while still a barrister , in recognition of the contribution that the barrister has made to the life of the Inn or to the law...
of his inn and a King's Serjeant, and about the same time was appointed recorder
Recorder (judge)
A Recorder is a judicial officer in England and Wales. It now refers to two quite different appointments. The ancient Recorderships of England and Wales now form part of a system of Honorary Recorderships which are filled by the most senior full-time circuit judges...
of Bristol. He served as one of the fire judges
Fire of London Disputes Act 1666
The Fire of London Disputes Act 1666 was an Act of the Parliament of England with the long title "An Act for erecting a Judicature for Determination of Differences touching Houses burned or demolished by reason of the late Fire which happened in London." Following the Great Fire of London,...
after the 1666 great fire of London
Great Fire of London
The Great Fire of London was a major conflagration that swept through the central parts of the English city of London, from Sunday, 2 September to Wednesday, 5 September 1666. The fire gutted the medieval City of London inside the old Roman City Wall...
. On the death of Sir Thomas Tyrrell
Thomas Tyrrell
Sir Thomas Tyrrell was an English judge and politician who sat in the House of Commons in 1659 and 1660. He fought on the Parliamentarian side in the English Civil War....
in 1672 he became a judge of the court of Common Pleas.
Along with Sir William Scroggs
William Scroggs
Sir William Scroggs , Lord Chief Justice of England, was the son of an Oxford landowner; an account of him being the son of a butcher of sufficient means to give his son a university education is merely a rumour....
he was engaged in some of the trials for the Popish Plot
Popish Plot
The Popish Plot was a fictitious conspiracy concocted by Titus Oates that gripped England, Wales and Scotland in Anti-Catholic hysteria between 1678 and 1681. Oates alleged that there existed an extensive Catholic conspiracy to assassinate Charles II, accusations that led to the execution of at...
, but there is little trace of the part which he took. He shared in the opinion that papists should be sternly dealt with; yet, to judge from his writings and his later life, it is inconceivable that he could have shared in the passion of the time. The chief civil case in which Atkyns took part during this period was that brought by Sir Samuel Barnardiston
Sir Samuel Barnardiston, 1st Baronet
Sir Samuel Barnardiston, 1st Baronet was an English Whig Member of Parliament and deputy governor of the East India Company, defendant in some high-profile legal cases and involved in a highly contentious parliamentary election.-Life:...
against Sir William Soame, the High Sheriff of Suffolk
High Sheriff of Suffolk
This is a list of High Sheriffs of Suffolk. The High Sheriff is the oldest secular office under the Crown and is appointed annually by the Crown. He was originally the principal law enforcement officer in the county and presided at the Assizes and other important county meetings...
, which led ultimately to the passing of the act 7 & 8 Wm. III, c. 7, declaring it illegal for a sheriff to make a double return in the election of members of parliament. The points of the case are technical, but it excited keen political interest, and Atkyns's judgment, in which he differed from the majority of the court, marks the beginning of his separation from the party in power (reprinted in his Tracts, and in 6 St. Tr. 1074). In 1679 he retired from the bench in circumstances which lead one to believe that he was practically dismissed. Being questioned before a committee of the House of Commons in 1689, he mentioned several causes for his enforced retirement.
His judgment in Barnardiston v. Soame had given offence; he had declared against pensions to parliament men; he had quarrelled with Scroggs about the right to petition; and he had offended North by speaking against the sale of offices. "As to pensions, Lord Clifford took occasion to tell me 'that I had attended diligently in parliament, and was taken from my profession, therefore the king had thought fit to send me £500' I replied: 'I thank you. I will not accept anything for my attendance in parliament.' ... I did take occasion upon this to advise my countrymen 'that those who took pensions were not fit to be sent up to parliament again'". In fact Atkyns was marked out as a disaffected man. He settled in Gloucestershire, with the intention of abandoning the law, but his political opinions again brought him into trouble. When the Oxford Parliament
Oxford Parliament (1681)
An English Parliament assembled in the city of Oxford for one week from 21 March 1681 until 28 March 1681 during the reign of Charles II of England.Succeeding the Exclusion Bill Parliament, this was the fifth and last parliament of the King's reign. Both Houses of Parliament met and the King...
was summoned, he was persuaded, though unwillingly, to stand for Bristol
Bristol (UK Parliament constituency)
Bristol was a two member constituency, used to elect members to the House of Commons in the Parliaments of England , Great Britain and the United Kingdom . The constituency existed until Bristol was divided into single member constituencies in 1885.-Boundaries:The historic port city of Bristol, is...
, but was defeated by Sir Richard Hart and Thomas Earle, both Tories. A strong party in the city, not content with his defeat, sought to force him to resign the recordership. The occasion was found in an illegality of which Atkyns along with others was said to be guilty in proceeding to the election of an alderman in the absence of the mayor, who was the same Sir R. Hart. The prosecution failed, but "Sir Robert Atkyns, on the Lord Pemberton
Francis Pemberton
Sir Francis Pemberton was an English judge and briefly Lord Chief Justice of the King's Bench in the course of a turbulent career.-Early life:...
's and his brother's persuasion, resigned his recordership; which was all that the city of Bristol aimed at by their indictment". In the following year came the trial of Lord Russell
William Russell, Lord Russell
William Russell, Lord Russell was an English politician. He was a leading member of the Country Party, forerunners of the Whigs, who opposed the succession of James II during the reign of Charles II, ultimately resulting in his execution for treason.-Early life and marriage:Russell was the third...
; he could not appear by counsel, but his friends exerted themselves in the preparation of his defence, and applied to Atkyns, who wrote to them a statement of the law. "And the like assistance being afterwards desired from me, by many more persons of the best quality, who soon after fell into the same danger, I, living at some distance from London, did venture by letters, to find the best rules and directions I could, towards the making of their just defence, being heartily concerned with them". Five years afterwards he published the letters, together with A Defence of the late Lord Russel's Innocency, a spirited and eloquent reply to an anonymous pamphlet called An Antidote against Poyson. To a rejoinder from the same pen, The Magistracy and Government of England vindicated, he wrote in answer The Lord Russel's Innocency further defended, assailing his opponent with abuse and almost expressly naming him as Sir Bartholomew Shower
Bartholomew Shower
Sir Bartholomew Shower was an English lawyer and politician, Recorder of London and a prominent High Tory.-Life:He was born in Northgate Street, Exeter, on 14 December 1658, the third son of William Shower, merchant, of Exeter, by his wife Dorcas, daughter of John Anthony. John Shower was his...
. In point of legal criticism Atkyns's letters and pamphlets are effective and still worth reading, but they do not shake the received opinion that the law of treason was not strained against Lord Russell. In 1684 we find his name associated with another great case, when Sir William Williams, the speaker of the House of Commons
Speaker of the House of Commons
Speaker of the House of Commons can refer to:*Speaker of the House of Commons *Speaker of the House of Commons of Canada*Speaker of the Northern Ireland House of Commons...
, was indicted for printing and publishing Dangerfield
Dangerfield
Dangerfield may mean*Dangerfield , a British television series*Rover Dangerfield, an animated feature film*Dangerfield Newby, an American former slave who followed John BrownDangerfield is a surname and may refer to:...
's narrative of the Popish Plot. Williams had acted under the orders of the House, so that the case raised the whole question of the powers and privileges of Parliament. Atkyns's argument in his defence is an elaborate review of the authorities, to show that the actions of Parliament, itself the highest court of the nation, were beyond the jurisdiction of inferior courts. Judgment was given against Williams, but in later cases the decision has been described as disgraceful. The report in the State Trials says that Atkyns took part in the case, and even notices that he had to borrow a wig for the purpose; but in the other reports there is no mention of his name as counsel.
His steady attitude of resistance during these years of misgovernment met with recognition at the Revolution
Glorious Revolution
The Glorious Revolution, also called the Revolution of 1688, is the overthrow of King James II of England by a union of English Parliamentarians with the Dutch stadtholder William III of Orange-Nassau...
. In 1689 he succeeded his brother as chief baron, and in October of the same year, the great seal being in commission, he was appointed speaker of the House of Lords in the place of the Marquis of Halifax
George Savile, 1st Marquess of Halifax
George Savile, 1st Marquess of Halifax PC was an English statesman, writer, and politician.-Family and early life, 1633–1667:...
. He held the speakership until 1693, and for his services was recommended by the House to the king's favour. Towards the end of the following year he retired from the bench – through disappointment, it has been said, at not being chosen master of the rolls
Master of the Rolls
The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal...
, but more likely owing to advancing age. Yet he still gave proof of continued vigour. In a pamphlet published in 1695, and "humbly submitted to the consideration of the House of Lords, to whom it belongeth to keep the inferior courts within their bounds," he renewed Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
's protest against the insidious encroachments of the court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
, tracing the growth of equitable jurisdiction, and suggesting how the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
might be restored. This was followed a few years afterwards by another tract, addressed as a petition to the House of Commons, in which, while repeating his complaint against the court of Chancery, and lamenting the uncertainty of the law, he argued from the history of Parliament that the exercise of judicial functions by the Lords was a usurpation. It should be read along with Skinner's case
Skinner's Case
Skinner's Case, the name usually given to the celebrated dispute between the House of Lords and the House of Commons in the Parliament of the United Kingdom over the question of the original jurisdiction of the former house in civil suits....
, in which the Lords failed in their attempt to exercise an original jurisdiction, and Dr. Shirley's case, in which they maintained their right to an appellate jurisdiction. Atkyns had himself, while in parliament, taken a vigorous part in this struggle. After 1699 we hear nothing more of him till his death. He spent his later years at Sapperton
Sapperton, Gloucestershire
Sapperton is a village and civil parish in the Cotswold District of Gloucestershire in England, about west of Cirencester. It is most famous for Sapperton canal tunnel and its connection with the Cotswold Arts and Crafts Movement in the early 20th century. It has a population of 424.The parish...
Hall in Gloucestershire
Gloucestershire
Gloucestershire is a county in South West England. The county comprises part of the Cotswold Hills, part of the flat fertile valley of the River Severn, and the entire Forest of Dean....
, and died 18 Feb. 1710, a few weeks before his 90th birthday. Lord Campbell
John Campbell, 1st Baron Campbell
John Campbell, 1st Baron Campbell PC, KC was a British Liberal politician, lawyer, and man of letters.-Background and education:...
calls him a "virtuous judge," in what was an age of judicial scandals.
Works
- Parliamentary and Political Tracts, collected 1734, 2nd ed. 1741. Besides those already mentioned it contains other tracts published in Atkyns's lifetime:
- An Enquiry into the Power of dispensing with Penal Statutes, which sums up the whole history of dispensations and denies their antiquity
- a reply to Chief-Justice Herbert's review of the authorities in Hale's case, which raised the question of the dispensing power (see both tracts, 11 St. Tr. 1200)
- a discourse on the ecclesiastical commission of 1686 (in 11 St. Tr. 1148)
- a speech as chief baron to the lord mayor in 1693 (also in 2 St. Tr. 361), a word of warning as to Louis XIV's designs for a universal and arbitrarymonarchy.
- An Enquiry into the Jurisdiction of the Chancery in Causes of Equity, 1695
- A Treatise of the True and Ancient Jurisdiction of the House of Peers, 1699. In many copies of this work is included the case of Tooke v. Atkyns, in which he was defendant, and which, as he allows, makes him write warmly on the subject of equitable jurisdiction.