Atkyns, Robert (1621-1709) (DNB00)

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ATKYNS, Sir ROBERT (1621–1709), lord chief baron of the exchequer, was the eldest son of Sir Edward Atkyns, 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' (Epistle dedicatory to his Enquiry into the Jurisdiction of the Chancery). In his son's 'History of Glocestershire' 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 1621. It is not certain whether he went to Oxford or to Cambridge, Chalmers (i. 60) including him among the famous men of Balliol College, and Dyer (ii. 437) 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 (Catalogue of Oxford Graduates; Wood mentions this, but does not connect him otherwise with Oxford (Fasti, ed. Bliss, ii. 273)). 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, but beyond that nothing is heard of him until 1659, when he entered Richard Cromwell's parliament as member for Evesham. Probably he was already known to sympathise with the king's party, for we find him among the sixty-eight who were made knights of the Bath at Charles's coronation (KENNET, Register, 410). His name does not appear in the list of members of Charles's first parliament, but in that of 1661 he sat for Eastlow, 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 about the same time was appointed recorder of Bristol (3 Mod. Rep. 23: but see Willis's Not. Parl., where he is mentioned as a recorder in 1659). On the death of Sir Thomas Tyrrell in 1672 he became a judge of the court of Common Pleas. Along with 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 (see trial of Lewis the Jesuit, 7 St. Tr. 249) ; 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 S. Barnardiston against Sir W. Soame, the 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 ; see case in Broom's Const. Law, 796; also North's description of the trial, Examen, 521). 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 500l." 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"' (Grey's Debates, ix. 507-9). 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 R. Hart and Sir T. 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 ' (2 Shower, 238; see Atkyns's argument, which is ingenious and learned, in 3 Mod. Rep. 3). 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' (Tracts, 334; and see Braddon's case, 9 St. Tr. 1127, 1162). 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 merited 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. They are reprinted in his 'Tracts,' and, along with Shower's 'Magistracy' and Sir J. Hawle's 'Remarks on Lord Russel's Trial,' in 9 ' St. Tr. ' 719. 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 (Tracts: reprinted 13 St. Tr. 1380) 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 (see R. v. Wright, 8 Term Rep. 297). 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 (2 Shower, 471 ; Comb. 18) 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 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. An account of the whole struggle, in the first part of which Atkyns himself, while in parliament, had taken a vigorous part, will be found in Hargrave's preface to Hale's 'Jurisdiction of the House of Lords,' and in Hatsell's 'Precedents,' vol. iii. After 1699 we hear nothing more of him till his death. He spent his later years at Saperton Hall in Gloucestershire, and died 18 Feb. 1709. After Hale, there was no more learned lawyer of his time, and there was none more honest. Lord Campbell calls him a 'virtuous judge,' and he merited the praise in an age of judicial scandals. His political attitude moreover displayed a moderation and an independence of spirit which make him a type of what was best in the period of the revolution.

1. '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); and his 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 arbitrary monarchy. 2. 'An Enquiry into the Jurisdiction of the Chancery in Causes of Equity,' 1695. 3. '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.

[Biographia Britannica; Foss's Judges; Atkyns's Hist, of Glocestershire, 638, 2nd ed. 335; Grey's Debates; Parl. Hist., iv. and v.; Lords' Journals, xiv. 319, xv. 122-4 ; Seyer's Mem. of Bristol; Luttrell's Diary; Howell's State Trials; Hargrave's preface to Hale's Jurisdiction of the House of Lords, clxxxviii.]

G. P. M.

Dictionary of National Biography, Errata (1904), p.10
N.B.— f.e. stands for from end and l.l. for last line

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