Imatges de pàgina

of Chancery, which we shall afterwards proceed to examine, although at some risk of repetition.

In pursuing this course, we do not think it necessary to trace the history of the Court, or of the various proposals for its amendment through the several stages into which Mr. Cooper has divided his first four chapters; not, however, that they are without amusement, or even more valuable instruction.

His position, " that it is not possible for new orders to remedy the great delay that occurs in some branches of the Court, between the setting down and the hearing of causes,” we have already noticed, and we have acknowledged the merit of that division of his book which professes to give an “ account of the proceedings in a common Chancery suit, and the probable time of its duration : " we have with equal freedom, and much in detail, stated the grounds on which we hold that he has failed to establish his main conclusion, as attempted to be drawn from the comparative statement of business done by the Court at different periods. But we should do injustice both to our author's ingenuity and to our own convictions if we passed over in silence the most original, as well as (to our minds at least) the most satisfactory part of his treatise—that in which he undertakes to show, that the assumption by the House of Lords of the appellate jurisdiction over our courts of equity in the reign of Charles the Second(for it dates no higher)—was neither more nor less than “ A VIOLATION OF THE CONSTITUTION;”—a position which may be startling enough to those who are fond of supporting established usages on the ground of indefinite prescription, but which he vindicates on grounds that must be pronounced quite irrefragable.

“ The appellate jurisdiction at present exercised by the Lords is perhaps the most absurd and objectionable part of our judicial system ; and it is not altogether unworthy of observation, that the most eminent lawyers this country ever saw have considered the exercise of such jurisdiction an infringement of the constitution,(l) and an assumption of an authority which belonged to the whole Parliament, of which the Lords formed only a part.

“ The Rolls of Parliament, from the time of Edward the First down to the end of the reign of Henry the Fourth, are, as it is well known, full of judicial proceedings; but, after that period, we find no trace of the Parliament having exercised jurisdiction in civil suits until some time after the accession of James the First. During the early part of

(?) It is necessary to inform the unlearned reader, (if these pages should find one,) that the whole account of the origin of the jurisdiction of the Lords in appeals is abridged from Mr. Hargrave's Preface to Sir Matthew Hale's Work on the Jurisdic. tion of the Lords' House. Wherever it was not inconvenient, I have used the pass sages of Mr. Hargrave's Work, with such alteration only as was requisite to preserve a connection between the different parts of the statement. (Note by Nr. Cooper.)

that reign, the Lords exercised, without scruple, an appellate jurisdiction over common law suits, but under the delegation of writs of crror issued by the Crown, authorizing them to adjudicate the particular case ; (m) and it is remarkable that they then thought they had no power to exercise an appellate jurisdiction over decrees in Equity, upon a petition presented to themselves; and a Committee appointed to investigate the subject reported that there was no precedent of the exercise of jurisdiction by the Lords over Equity decrees, except under the authority of some writ, commission, indorsement of petition, or other act emanating from the Crown. Towards the end of the reign of James the First, the Lords appear, however, frequently to have adjudicated between party and party, on original petitions of complaint presented to themselves, where the matter in dispute had never been discussed before any inferior tribunal, (n) and yet they forbore from assuming upon such petitions the right to examine Equity decrees; and the usual mode of impugning the Chancellor's judgments seems to have been to procure a commission from the Crown, directed to certain Lords or judges to review them, or to reverse them by a bill brought into Parliament for that purpose. In one case, towards the close of this reign, a remonstrance was made against the exercise by the Lords of appellate jurisdiction over an Equity Order upon a petition to themselves, and they acquiesced in the validity of the objection, and obtained a commission from the Crown to enable them to review the particular case.

“ In Charles the First's second Parliament, the House of Lords acted in all respects as a Court having authority to try original causes between subject and subject. Sometimes they heard the causes themselves, and sometimes they selected persons whom they empowered to hear them in their stead. In this Parliament, they seem first to have approached to the exercise of appellate jurisdiction over Courts of Equity, and actually ordered a cause to be argued by counsel at the bar of the House, but the Parliament was dissolved before the cause was heard In Charles the First's fourth Parliament, the Lords made great advances towards establishing in themselves an original and appellate jurisdiction in civil suits, both ecclesiastical and temporal ; but still it does not appear that there is amongst the proceedings of this Parliament a direct precedent of any Order made by the Lords themselves upon a petition of appeal from a Court of Equity, with such a hearing of the cause as can be considered to amount to a complete unequivocal exercise of equitable appellate jurisdiction; and it is remarkable, that when this Parliament was dissolved, three bills for reversing three different decisions of the Court of Chancery were depending before the House of Commons.

“ The first direct petition from an Equity decree, and the first Order

(m) All jurisdiction being either mediately or immediately derived from the King, no question has ever been entertained as to writs of error being strictly conformable with the constitution. In early times they were brought in full Parliament, but this course was discontinued many centuries since. (Notc by Mr. Cooper.)

(n) The House usually referred the matter to particular Lords or common law judges, sometimes to particular courts of justice. (Note by Mr. Cooper.)

of the Lords, reversing an Equity decree upon such petition, without any authority delegated to them by the Crown, are stated by Lord Hale to be in the year 1640, during the sitting of the Long Parliament, in the time of the Commonwealth. Lord Hale, if I recollect right, observes, that the trouble of the times caused parties to throng to the House of Lords upon all occasions; and the Lords were induced, from the difficulty the suitors at that time experienced in obtaining relief in the ordinary tribunals, to extend the exercise of their jurisdiction, both original and appellate, beyond all former limits; and he argues, that Orders made by the House, during a period of general anarchy, when every member of the legislative body was disjointed, ought not to be drawn into precedents for future times; and, indeed, if the acts of the Long Parliament are to be cited as examples, they would first prove that the Lords had inherent in them the privilege of exercising the judicial functions in almost every case, and in the next place that the order of the peerage did not exist as a component part of the legislature.

“ Notwithstanding, however, the commotion of the times, the usurpation of original and appellate jurisdiction by the Lords did not pass wholly without notice. The cases of Maynard and Lilburne occurred 1646 and 1647, and gave rise to a discussion as to the extent of the judicial authority of the Lords, and every lawyer in Westminster Hall (except Prynne, who, after having been mainly instrumental in cffecting the abolition of the Star Chamber, now with singular inconsistency exalted the judicature of the Lords to an independence on Parliament) seemed to think that the Lords had assumed a most unwarrantable jurisdiction, and wholly inconsistent with the constitution. It is worth while also to observe, that Fairfax, and the council of the parliamentary army, in August, 1647, agreed upon certain heads of a proposal to be addressed to the Commissioners of the Parliament residing with the army, some of which touched this question of the Peers' claim of jurisdiction, and demanded a declaration that the original and appellate jurisdiction in Parliament were in the Lords and Commons jointly, and that the Lords could not exercise either jurisdiction without the concurrence of the Commons.

“ Little seems to be known as to the judicature in Parliament from the abolition of the regal office and the House of Peers until the Restoration. Cromwell appears to have seen the absurdity of a Court whose members were ignorant of the law they were to administer; and it is conjectured that the ordinary mode of examining judgments and decrees of the Courts of law and Equity, was by issuing writs of errors and commissions, delegating to particular persons authority for that purpose. The ordinance, however, for regulating and limiting the jurisdiction of the Court of Chancery already mentioned, gave a very satisfactory appeal from the decisions of that tribunal by granting the privilege of a rehearing before the Lord Chancellor or Lord Keeper, joined by six judges, of whom two were directed to be taken out of each of the three great common law Courts, and of whom also one was to be a chief justice or chief baron.

“ During the Convention Parliament, the Lords acted as if there were an illimited jurisdiction, original and appellate, inherent in the peerage, and they would not allow that the concurrence of the Lower House was requisite to give effect to their judicial acts.

“ The House of Commons protested against this usurpation of exclusive jurisdiction ; but as any discussion of the subject was likely to cause a rupture between the two Houses, which at that period would have been productive of consequences most calamitous to the nation, the Commissioners, by the advice of Sir Matthew Hale and Sir Heneage Finch (afterwards Lord Nottingham), declined engaging any further in the dispute of judicature, but reserved the point to be discussed at a more proper season.

“ It was during the following Parliament that the principal contests between the two Houses respecting the right of judicature arose. In the great case of Skinner and the East India Company, the Lords claimed the right to adjudicate between party and party in the first instance, and not by way of appeal. The votes of the House of Commons, however, soon proclaimed to the people of England that the exercise by the Lords of original jurisdiction in civil causes was an usurpation. The case of Skinner and the East India Company ended in a compromise between the two Houses, but such a termination of the contest was a blow fatal to the claim of the Lords, and they have ever since relinquished the exercise of original jurisdiction in civil causes.

“ In the fourth session of the Long Parliament of Charles the Second, a new quarrel of the two Houses arose on another branch of judicature, and the event was different. The great question in this dispute was respecting the appellate jurisdiction exercised by the Lords over decrees in Equity, upon a mere petition presented to themselves; and the House of Commons came to a determination that the Lords had no such privilege as they claimed, and passed a Resolution that any person soliciting, pleading, or prosecuting any appeal against any commoner of England before the House of Lords, should be deemed and taken a betrayer of the rights and liberties of the people of England, and should be proceeded against accordingly. After such a resolution, it may seem extraordinary that the Lords have been left in quiet possession of this privilege ; but the King siding () with the Commons, the latter began to open their eyes to the consequences of their depriving the Lords of appellate jurisdiction over Equity, which would be a return of such jurisdiction to Commissioners named by the King, whose decision would be final, unless the entire Parliament interfered as a Court of last resort. The Commons, therefore, seemed to have thought that they had done enough for the public weal by securing a victory over the claim of the Lords to original jurisdiction in civil suits; and that, however unfounded their claim to appellate jurisdiction over Equity decrees might be in principle, it was rather an affair between the King and the Lords than between the Lords and the Commons,—and that to gain a victory over the Lords on this point would be only to win a prize for the Crown,

(o) In the quarrel as to the original jurisdiction, the King had espoused the part of the Lords. (Norc by Mr. Coopcr.)

under circumstances which made it more safe for the constitution tha the power should continue with the peerage.

“ The Commons seem to have been persuaded, that, in the instance of appellate jurisdiction over equity causes, however clearly the strict doctrine of the Constitution might be with them, their assertion of it was to struggle against their own interest, and to prefer confidence in nominees of the Crown to confidence in the Upper House; and consequently that success in their pursuit would be to enlarge the sphere of Royal influence at a time when, from the ambitious schemes of the misguided monarch, the contraction of the kingly power was deemed the true policy. (p)

« But, as the learned writer, from whom the foregoing pages on the subject of our present consideration, are extracted or abridged, observes, whatever were the reasons which induced the change of disposition in the Commons, the effect of the change was leaving the Lords in quiet possession of the object, which had been so warmly contested for with them in the former session; and though the Long Parliament of Charles was permitted to subsist for two other sessions, yet the acquiescence of the same House of Commons continued in that unequivocal way, which imported, that the appellate jurisdiction of the Lords was not intended to be questioned:' and · Thus, continues the same author, “the issue of the fight for the appellate jurisdiction became in effect as much a decided victory to the Lords, as the issue of the previous fight for original jurisdiction was in effect a victory to the Commons. But there was this difference between the two victories. The point gained by the Commons was carried against the united efforts both of King and Lords ; but the point gained by the Lords seems at last to have been a voluntary concession of the Commons, from a discovery, that, if they prevailed, the Crown would be fixed in the exercise of a discretion equally formidable to both Houses. Nor was this the only difference. The victory of the Commons appears to have been gained upon principles of the Constitution approved by Lord Hale, by Lord Nottingham, by Lord Vaughan, by almost the whole of Westminster Hall, except that Champion of Aristocratical power, in its most excessive latitude, the memorable Mr. Prynne. But the victory of the Lords appears to have been effected by the fear of the Commons, that unless they, by their acquiescence, sanctioned what in principle some of the first lawyers of the country, as well as themselves, held an authorized assumption by the Lords, it would leave the Crown and its Ministers with more power over appellate judicature than, from the want of confidence in the Crown and some of its advisers, was thought to be compatible with the public interest. So to be defeated was to the Commons in the nature of a second victory, not indeed over the Lords, but over themselves and their own pride, in respect of the arduousness on the part of such an assembly to sound a retreat, after being seemingly pledged to fight the battle out; and also over the secret views of the

(p) See Hargrave's Preface to Hule's Jurisdiction of the Lords' House, p. 163, 164, and 165 ; from which many of the foregoing passages are taken almost verbatim. (Note by Mr. Cooper.)

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