them, either by the king's commission, or by indorsement of a petition of review or reversal, to examine errors in decrees of the Chancery.' On the question de bono, Lord Hale is as adverse to this claim. of appellant jurisdiction by the Lords, as we find him to have been on the question de vero or de jure. After having stated the arguments in favour of the claim, he urges with irresistible force his objections to those arguments; and he then considers what expedients may be adopted for the accommodation of this difference, so as to preserve the just rights of the Crown, the safety and security of the subject, and the honour and. dignity of parliament; each of them separately, and all of them collectively, objects of great importance The course which he recommends is the following: 1. That the appointment of tryers of petitions, which is always done by the king the first day of a session, may not be a piece only of name and formality, as it is now used; but that a select number of the most judicious lords spiritual and temporal, and that not in too excessive a number, together with the judges, be appointed, and these to be commissionated under the great seal for that purpose, to whom as occasion requires petitions for reversals of decrees may be referred. And the like commission for examining of judgments in writs of error. Only the judges of that court, out of which the record is removed, to be omitted in that commission; and only to be present if occasion require to hear the reasons of their judgments, as in error out of the exchequer chamber before the treasurer and chancellor. 2. That, according to the antient course, all petitions of reversals of decrees in chancery preferred in parliament be directed to the king or the king and his council, and delivered to the receivers of petitions; and the king and his council to be attended by the receivers of petitions, and endorsements to be thereupon made according as the case shall require. Soit cette petition bayle a tryers de petitions c. a oyer et terminer solone droit et raison; et eux, ou ascuns 6 &c. d'eux, quorum c. And because it may not be determined in that session, then a special commission to the tryers, whereof some of the quorum to examine and determine the errors in the decree ; and so in writs of error.' The advantages of this mode of proceeding are thus detailed: This course, I. Preserves the king's right as the fountain of jurisdiction: and as the decrees are passed by the king's authority, so by the same authority they are avoided, if there be cause; and not by a kind of primitive superintendant inherent jurisdiction in the lords house; which some may possibly think savours too much of an aristocracy, giving an appeal from the king to the lords by an inherent right of Cc 4 a dernier a dernier resort, which seems not agreeable to the constitution of the English government. 2. This method is most suitable to the method that the parliament hath chalked out in cases of a like nature, as any man that attentively reads the statute of 14. Eliz. cap. 5. for reformation of de lays in judgments may easily observe. 3. This method suits with the antient form of reversal of judgments in the lords house; which, as hath been at large shewn, was antiently by a select number of lords thereunto appointed by the king, and no bill or writ of error in parliament without a previous petition to the king and a bill signed for its allowance. This prevents the many mischiefs and inconveniences, that. happen upon promiscuous determining of such causes, by the supernumerary vote possibly of one person, and he possibly not so competent a judge in such cases. 5. This preserves a handsome decorum and dignity in the lords house, wherein some of their members are always in commission upon this occasion. 6. This is the means to have stability and firmness in proceedings. Men's decrees shall not be broken, nor reversed, without just cause, and due examination by persons experienced and learned in matters of this nature; for the judges here are not only to be assistants to advise, but commissioners to assent or disassent, as they are by the statute of 14. E. 3. cap. 5. 7. This is a proceeding regular, consonant to law and the true interest of justice; and such as even the lords themselves, in the parliament of 2. Jacobi, owned as the safe and regular method of proceeding for reversal of decrees in equity. 8. This is a great means, as on the one hand, to keep the chancellor or keeper and judges under a just care that their decrees and judgments be well grounded: for there is a due and regular method of appeal: so on the other hand is a good security provided for such as have now run, it may be, a long and expensive suit for the obtaining of a decree of judgment (and possibly all the substance of himself and his family or some purchaser for valuable consideration are laid upon it) that it shall not be lightly or loosely thrown off by persons unacquainted with proceedings of this nature, and yea and possibly by the vote of such as never heard the cause (if proxies be allowed, which I know not whether they are or not) or possibly by the vote of one that never observed or heard one half of the cause, or if he heard it yet never heard a cause before. This method of proceeding, as well in writs of error upon judgments as in appeals from decrees, would render the proceedings of the lords much more regular and orderly, much more agreeable to the laws of the kingdom and the king's just right, much more safe for the people and consonant to the true and antient stile and order of parliament, with less expence. And businesses of this nature would receive their determination before the commissioners, though the parliament should be prorogued adjourned or dissolved, without foreing the complainant to begin all anew,' The The volume concludes with a fair statement, and an able and convincing refutation, of the doctrines and arguments of the author's opponents; pointing out many absurdities, as well as inconveniencies, which would necessarily result from the Lords' House of Parliament being invested with such high judicatory powers as they claimed. We have now endeavoured to present to our readers a view of the contents of this admirable performance: but to enable them to form a more competent opinion of the merits of the Chief Justice's Treatise, we shall extract the sentiments of the learned editor, which alone may be considered as an excellent review of the judge's production: One of the proud claims on behalf of the house of lords was, that it was competent to them, whenever they thought fit, to exercise an original jurisdiction in civil cases. But lord Hale denied the right of the lords to such a jurisdiction. He was followed in that opinion in his lifetime by the vote of the house of commons in the great case of Skinner against the East India Company; and after his death he was again followed by the commons in the case of Mr. Bathurst in a manner which shewed that the commons would no more suffer such a jurisdiction indirectly, than they would submit to it directly. The result is, that the lords have wholly ceased to enforce this claim for almost a century. 6 Another claim for the lords was to an original jurisdiction over crimes without impeachment by the commons. But this also was positively denied by lord Hale: and not only did the proceedings of the commons in the cases of Skinner and of Mr. Bathurst include a decided condemnation of this claim; but the judges themselves came forward solemnly and successfully in the case of Bridgman against Holt, to protest against it. - Here again also the result has been with lord Hale; for nearly a century has now passed without an attempt at the exercise. It was a further claim for the lords, that they have an appellant jurisdiction over causes in equity on petition to themselves.-Lord Hale firmly and unequivocally controverted this claim. He also lived just long enough to see his opinion adopted by a vote of the house of commons. Afterwards indeed the blow was not followed up and in this instance the lords finally prevailed; and now their exercise of this branch of jurisdiction stands, not only upon the foundation of a quiet possession ever since the close of the Ailesbury case in 1704-5, but upon the still firmer foundation of such an acquiescence by both the crown and commons as would, if deeply looked into, most probably be found to amount to legislative recognition.In this great point therefore, it must be confessed, that lord Hale's opinion has miscarried, and that the house of lords have prevailed over his opinion. But the victory was not till after his death; and it was gained under such circumstances, as shew, that it was rather from the forbearance of the house of commons and from their jealousy of of the crown, than from any error in the strict consitutional prin ciples upon which lord Hale proceeded. Another claim for the lords was, that they were entitled to an appellate jurisdiction over all courts and all causes.-Lord Hale opposed himself to the grandeur of this claim.The result is with him and against the lords: for they meddle not either with appeals ecclesiastical, with appeals maritime, or with appeals in prize causes. Colonial appeals both at law and in equity have also been suffered to fall into other hands; namely, the hands of the privy council. Nay, what exceedingly in point of precedent tends to fortify the principle of lord Hale's opinion against the claim of the house of lords is, that it would not be an easy task to bottom such exercise of appelTant jurisdiction by the privy council, otherwise than upon that principle of commissionary delegation of the crown, which lord Hale states to be the very essence of the appellant judicature of the lords over the common-law courts under writs of error. It was also stated as a claim of the lords, that their judicative power is primitive and inherent, as being by our constitution annexed to the peerage. Lord Hale absolutely refused to assent to this grand pretension.-Here again he has prevailed; for the conduct of the lords themselves is enough to shew, that his opinion is at least operative and effective; they neither declining to act as commissionated by writs of error under the great seal, nor opposing the privy council exercising commissionary appellant judicature under a less solemn delegation of royal authority. It was a further claim for the lords, that they are the supreme jurisdiction, the last resort; and that they have this immeasurable power as constitutionally authorized to exercise the judicature of parlament singly and solely.-Against this pretension lord Hale, notwithstanding all the calm of his disciplined mind, was even indignant, as manifestly appears in the last chapter of the following treatise. That energetic chapter was probably composed only a few months before the decease of lord Hale. It may therefore be considered as the zealous suffrage of his dying breath against this sovereign claim. He even treats it, as tending to swallow up both king and commons in the abyss of aristocracy, and to effectuate the most essential change in the English constitution. But here lord Hale, or rather the constitution itself, is in effect once more victorious. For the time previous to Jord Hale's decease, the following treatise alone, exclusive of his other writings still only in manuscript, will suffciently bear testimony. For the time subsequent, without reckoning the continual and permanent habit of the commons in having a standing committee for courts of justice, there is such a series of exercise of the judicature of parliament by statute, both appellately in reversing erroneous judgments and originally in attainting, as renders the lords themselves witnesses against their own pretension. Upon this comparison of lord Hale's opinions with the judicative claims for the house of lords, it is scarce too much to say, that the victory is wholly on his side, and wholly on the side of the real constitution, except in the single instance of the appellant jurisdic tion over decrees in equity; and that in the only instance, in which his opinion can be said to have been subdued, it has been so rather from jealousy of the crown, in favor of whose right the opinion operated, than from any error in the opinion itself. In other words, the sober temperate and strictly constitutional doctrines of the venerable and consistent lord Hale, have gained a compleat victory over the rash bigotted extravagant and encroaching eccentricities of the hasty and inconsistent Mr. Prynne, and over his magnificent claims for the lords, in all the grand points of originality appellancy universality supremacy and soleness, with scarce one exception; that is, in all of them, except part of one, wholly and entirely, and substantially even in the single point excepted.' Before we conclude this article, we must take notice of a position in Lord Hale's Treatise, which is controverted in the fourth volume of Mr. Hatsell's Precedents. The Judge says: And therefore I take it, that the granting or continuing of a supersedeas by the lords house, depending a writ of error, until the next parliament, as it hath been sometimes done, viz. rot. parl. 4 H.4. n. 26. in the case of the dean and chapter of Litchfield, rot. parl. 11. H. 6. n. 40. in the case of Isabel Beauchamp, was not consonant to law. For it would be an intolerable delay of justice; for no parliament possibly would be summoned in seven years; and it were very unreasonable, that the plaintiff's execution upon a judgment obtained should be so long delayed; and the rather because error in judgments is not presumed, till it be declared and adjudged by the court where a writ of error is depending.' On this assertion, Mr. Hatsell observes, after having cited several precedents, that the "instances, however, in which the practice has been contrary to this doctrine of Sir Matthew Hale, are from their antiquity, and number, more than suffi cient to decide that his opinion upon this point is not consonant to law." We must now finish our account of this very instructive volume but not without assuring its very learned and judicious editor that we feel much indebted to him, for the labour and intelligence which he has bestowed in illustrating his author; and sincerely recommending to his attention the still unpublished works of this great luminary of the law. ART. XI. The History of the Thirty Years War in Germany. Translated from the original German of Frederic Schiller, Aulic Counsellor, and Professor of Philosophy at Jena. By Captain Blaquiere, of the Royal Irish Artillery. 2 Vols. 8vo. pp. 340 in each. 128. Boards. Miller. 1799. HE preface to this History comes from the admired pen of No |