judicature, and which appear to be the earliest instances of direct petition of complaint to the Commons against the Lords, the celebrated case of Skinner against the East India Company occurred at this period. On the subject of this remarkable transaction, Mr. H. observes;

Upon the present occasion it is fit, that the nature of this case and of the proceedings upon it should be well understood; for it involved a number of great points relative to the judicature of the house of peers. It directly involved the question, whether by our law and constitution the house of peers inherently and in right of their order is invested with original jurisdiction over civil causes between party and party; the question, whether the king, by recommendation of a business to the peers, or by any other species of royal delegation, could supply any defect which in this respect there might be in their power; and whether the house of peers could without a jury assess damages; and whether also it was competent to the lords to impose fines for breach of privilege, and to award imprisonment till payment. Collaterally and incidentally, the case involved the pretension of the house of lords singly to an original jurisdiction over crimes unconnected with the privileges of the peerage, or rather the whole compass of their judicative powers. But stating the case properly is not quite so easy, as may be expected: because the printed journals both of lords and commons, for a reason which will be presently explained, are almost a blank as to the proceedings of the two houses upon this case. However there are sources sufficient to supply this chasm of the printed journals; and from those sources, aided by the printed parliamentary debates, particularly those by Mr. Grey, who was a member of the commons at the time, it shall be attempted to relate the case from beginning to end.'

The whole account of this contest is curious and interesting; and while its termination was honourable to the Commons, it was so injurious to the claim of the Lords to an original jurisdiction, that the exercise of that claim in civil causes has ever since been relinquished by them. This dispute was compromised by the King's offer of his mediation between the two houses. His Majesty's proposal, which was readily accepted by both, was that he should" give present order to erase all records and entries of this matter in the council-books and in the exchequer, and that the two houses should do the like; so that no memory might remain of the dispute."-In this part of his work, Mr. Hargrave notices a mistake of Mr. Hume in his history, who says, "that the King prevailed with the Peers to accept of the expedient proposed by the Commons:"-but the King's speech, the editor observes, entered in the journal of the Commons, sufficiently proves him to have been the proposer to both houses.'

The question of appellant jurisdiction over equity, belonging to the Lords, was for some time strongly disputed by the Commons

Commons in the three cases of Dr. Shirley against Sir John Fagg, Sir Nicholas Stoughton against Mr. Onslow, and Sir Nicholas Crispe against Mr. Dalmahoy and others, but was afterward quietly relinquished by them; the consequences of the victory being in possession of the house of Lords, who have. since, on several occasions, continued to exercise the right. The reasons of this abandonment on the part of the Commons, ' after their former spirited and even violent opposition to the claim, are stated by the editor in p. clxiii of his preface ;and Mr. H. then proceeds to give an account and character of the different publications which appeared on each side of this long-contested question, This part of his subject Mr. Hargrave has treated with considerable ability and information; and, though he frequently complains of fatigue and wearisomeness, he has happily contrived to exempt his readers from the same sensations. He concludes his narrative with the following remark:

Thus at length the Lords have so long acquiesced in the condemnation of their exercise of original jurisdiction, that it seems as if they had never claimed it; and the Commons have so long acquiesced in the exercise of appellant jurisdiction by the Lords, that it now seems as if it had never been disputed.'

We shall now proceed to the consideration of the Treatise by Lord Hale; observing that, previously to the Restoration, he had in three distinct tracts examined the subject of parliamentary judicature; and after that period, when a serious controversy took place between the two houses relative to the powers exercised by the Lords both originally and appellantly, he composed two MSS. exclusively of the volume now before us. From a mind so highly endowed as that of Lord Hale, and from such persevering attention bestowed on the subject, we naturally expect a full, profound, and particular discussion of this important question; and in this expectation we are by no means disappointed. The present treatise consists of thirty-four chapters; in some of which the author considers the several councils of the Kings of England, particularly the Ordinarium Consilium Regis and the Magnum Consilium, consisting of a conjunction of the Lords of Parliament and the Consilium Ordinarium. A due attention to the capacity in which the Lords, at different periods, exercised their jurisdiction over causes civil and criminal, whether as members of the Consilium, or simply as the Lords' House consisting of the Lords spiritual and temporal, would remove much difficulty from the question, and place the subject in a clearer point of view. Several chapters are dedicated to the examination of

Cc 2

this

this Consilium Regis Ordinarium, its power and jurisdiction, its relation to or conjunction with the courts of Chancery, King's Bench, Exchequer, Common Pleas, and Privy Seal, and its habitude and relation to the Lords' House in Parliament, and their conjunction therewith.-In examining the Lords' claim to an original jurisdiction, the author makes several judicious observations, and employs the argumentum ab inconvenienti very strongly against its existence:

Certainly the original cognizance of causes in the lords house was always highly incongruous and prejudicial to the people in many respects: as-1. By reason of the great attendance that it required, in as much as necessarily these causes and their hearing must give way to weightier matters.-2. In respect that parliaments were of no long continuance anciently, and many times prorogued or dissolved before. such causes could be heard, and then the suitor and defendant lost their labour and expence in attendance.-3. The ancient course evenin parliament was, if a matter were put in issue, that either commissions issued out of chancery to try the point returnable thither, or else the record was sent into the king's bench to try, who also gave judgment; so that they were fain to go through several courts before they could come to a conclusion of the cause. I never read of any trial in capital causes by a jury at the lords bar, but only in the case of Thomas lord Berclay, 4 E. 3. for the death of E. 2. de quo infra. -4. The modern course of trial by examination of witnesses, either vivá voce or by commission, is ten times worse, because the lords are thereby judges of fact as well as of law; and whereas if a jury give a false verdict an attaint lies, here he is remediless if the lords make a wrong collection or conclusion upon witnesses, and the party has lost that trial that the law of the land and Magna Charta so much assert, the legale judicium parium suorum.—5. But that, which is more than all the rest, the lords are great persons; and if they give judgment against law, there is no appeal to any but themselves. If there be an appeal to the house of commons, the lords will not allow it: if to both houses, the same must pass through the house of lords, who will be doubtless partial to their own judgment once given if the appeal be to another parliament, it is true the lords may reverse the judgment given by themselves; but who can expect they will do it?

The wisdom of the laws of England is remarkable in these particulars.-1. That although the judges are constituted by the king and chosen out of learned men knowing in the laws; yet they are not nobles, nor peers of parliament, or such as would be too great to be called in question for corruption, or their judgments to be examined if there be cause.-2. That the ordinary courts of justice are still under the check of a review by writ of error, if there be cause: the judgments in the common pleas examinable in the king's bench, those for the most part in the exchequer chamber, those in the exchequer before the chancellor and treasurer, and all of them either mediately or immediately in the court of parliament.

• But

* But to begin with an original petition in the lords house, which is now simply the court of the last resort for appeals, is preposterous and infinitely prejudicial to the people.

So that if we may judge what is unlawful by what is highly inconvenient, we have no reason to think such a kind of jurisdiction in original suits was lodged in the lords house.'

--

The nature of the proceedings on writs of error and appeals, the courts from which and the time when the records are removed, and the court of parliament into which records were removed, examined, and determined, are separately and at considerable length discussed; and much light is thrown on this branch of our law. The author afterward proceeds to the consideration of the appellant jurisdiction claimed by the Lords over decrees in equity; and, as a preliminary to this part of his argument, he thus mentions those modes of rectifying erroneous decrees which are not relative to parliament, and touching which there is no colour of controversy: And the methods are three.

1. By a rehearing of the cause by the chancellor himself, which he may do, and if he see cause may alter his decree. But this must be before the decree be enrolled of record; for when it is signed and enrolled by the stile of that court it cannot be reheard.

2. By bill of review in the same court. And this is after the decree signed and enrolled. But this is somewhat a strait-laced re-. medy. For they neither examine, nor read the proofs in the cause, whether they warrant the decree; neither is this bill of review allowed, unless the decree be performed, if it concern payment of money. But all the matters, that maintain such a bill of review, must be some error appearing in the body of the decree or in the proceedings of record, or some matter ex post facto, which hath happened since the cause, or come newly to be discovered, which, had it been known and alledged and due proof thereof made upon the hearing, would probably have suspended or altered or annulled the decree.

3. By appeal to the king, by petition, setting forth the matter of the decree, the unwarrantableness of the decree by the proofs in the case, the untruth of the suggestions on the decree, and thereupon praying a rehearing of the cause either before the king himself or such commissioners as he shall assign by commission under the great seal to hear examine and determine the cause. And thereupon the king usually issues his commission under the great seal to some of his privy council and to some of the judges for this purpose, before whom the cause is to be heard de novo from the beginning, and to be affirmed or reversed as there is cause. And such commissions as these have sometimes issued; and the reason, why they have not issued oftener, is in respect of the great charge and delay in such commission, and the uncertainty of the success because of the great uncertainty and arbitrariness used in equitable proceedings. But that this is the regular and legal way of appealing from and reversal of decrees in chancery, we have not only the judgment of the lords themselves

Cc 3

ia

in the parliament of 21. Jac. in Mathew's case hereafter mentioned, but the resolution of all the judges, long before this question started, Hill. 13. Fam. Roll's Rep. 331. and Bulstr. in the case between Vawdry and Pannel, and Mich. 42. & 43. Eliz. in the case of the countess of Southampton against the earl of Worcester certified by the judges under all their hands.

And whether the petition of appeal be made to the king in such ease in parliament or out of parliament, such a commission may be thereupon issued; for it is the king's commission, that gives the jurisdiction in this case.

Again, in parliament, if a parliamentary petition of appeal be delivered to the king and answered by him or by his direction, the answer is of itself a commission according to the tenor of the indorsement, and gives as full a power to those to whom the hearing and determining of the complaint is referred, as if it were a commission under the great seal; and though this latter be more regular and formal, yet they are both equally effectual. And therefore if the petition be indorsed, soit cette matiere oyée et terminée par les seigneurs spirituall et temporall, en parlement, or par les juges, or by a select number of lords and judges, or by the auditores querelarum, it gives them a full commission for the determining thereof, as if it were by commission under the great seal: for the petition and the king's answer indorsed are a record; and by what before is shewed touching writs of error, a petition of error thus indorsed is as full a commission to the lords in parliament to examine and reverse or affirm a judgment at law, as if it had been done by writ, for in those cases the king's answer is an effectual commission according to the tenor of it.

And therefore if in parliament there be a petition of appeal against a decree in chancery, and the king indorses the petition, soit mande as seigneurs spirituall et temporall, or to a select number thereof, a oyer et terminer cest appeale, there is no question to be made, as I conceive, but that according to the tenor of endorsement there may be a proceeding in parliament to hear and determine ex integro the justice or injustice of such decree; for the king, that is the fountain of jurisdiction, hath hereby delegated the same by such his endorsement of the petition as effectually as if it were done by commission under the great seal.

The true state therefore of this question is, whether the house of lords, by a kind of innate inherent jurisdiction, have power, without any such commission or delegation from the king, to receive appeals against decrees in chancery, and to hear and determine them upon a plenary hearing of the cause; or not.'

After having candidly and fully considered the arguments as well for as against this jurisdiction of the Lords, the author concludes this part of his work with the following observation: So that upon the whole matter, if the question be de vero or de jure, there is no such radical inherent jurisdiction in the House of Lords, without a special authority derived to

them,