No. 471-VOL. X.

Price 18., with Supplement, 28.

The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and decided in the several Courts of Law and Equity:

bury v. The Attorney-General, (1 Phil. 315), in which pecuniary demands may be made on the Sovereign, the

We have had of late several instances of petition of learning of petitions of right is not to be despised as utright being presented to the Sovereign. In Ex parte terly antiquated, nor is it undesirable that legislative Pering, (5 Dowl. P. C. 750), which arose upon a con-provisions should be made, if necessary, for enabling the tract with the Admiralty, such a petition was present-Crown practically to "do right," as well as to say, ed, which, as Mr. Anstey observes, in a learned pamphlet "Let right be done." recently published on this subject*, miscarried, because, the indorsement being general, "Let right be done," the suppliant, instead of going into Chancery, went into the Exchequer, a court which had no jurisdiction to receive a petition so indorsedt.

A petition of right is, properly, the supplication of the subject, addressed to the Sovereign, for justice, in every case where, from the defect of jurisdiction of the established courts of judicature, there would be a failure of justice, if they were relied upon for granting it. It is true, that, as Mr. Anstey, already quoted, observes, "it does so happen, that, at the present day, the only case in which such failure of jurisdiction is possible is that of a pecuniary demand upon the Sovereign." But, as there are still many possible cases, such as those of The Baron de Bode (4 Jur. 645) and Viscount Canter

* "Letter to Lord Cottenham," &c. By T. Chisholme Anstey, Barrister. Stevens & Norton, London.

The importance of the petition of right has of course diminished with the improvement of the established judicature of the country. In the older precedents we find matters dealt with by petition of right, which would at this day be brought under the jurisdiction of the courts of law or of the Court of Chancery. But the jurisdiction is not gone, although it is most materially crippled even in the few cases to which it is still applicable, by the general inability of the Crown to do justice.

In the days when the remedy of the subject was sought frequently by petition of right, the Crown had, in fact, large revenues, large estates, large and not always defined rights. Hence arose transactions with the subjects of the realm, in which the Crown might be aggressor or aggrieved; but in which, if aggressor, and if, upon being approached by way of petition of right, it ordered justice to be done to the suppliant, it had the independent power and means of doing justice, by making compensation out of its own resources.

+ In this case letters-patent had been granted for an invention for improving the construction of anchors. The patent But, since the abolition of the independent rights of contained, as is usual in the case of inventions of a nature likely to be available for the public service, a proviso for property of the Crown, and the substitution for them making the same void if the patentee should not supply for his of a civil list, of which every pound almost is parcelled! Majesty's service all such anchors as he should require, at such out for some settled public service or private necessity, reasonable prices as should be settled by the Lords of the Ad- the petition of right has necessarily fallen much into miralty. The Admiralty had anchors made according to the patent, and refused to give the patentee what he deemed an desuetude, not only because the occasions for its appliadequate remuneration. An application was made for a man-cation have so materially diminished, but because to damus to the Lords of the Admiralty, to settle the prices and use it as a remedy is, in general, something like filing terms according to the patent. But it was refused. The next proceeding was the petition of right, which, as observed by a bill in Chancery against an insolvent estate, in which Mr. Anstey, miscarried. you may get your decree, but when you have got it

VOL. X.

A

SAKEN

there is no fund available even for the costs, much less THE AMENDMENT OF THE LAW OF REAL for satisfying the justice of the decree.

PROPERTY.

"Leave wringing of your hands."

"Nihil quod est contra rationem est licitum; for reason is the life of the law-nay, the common law itselfe is nothing else but reason; which is to be understood of an artificiall perfection of reason gotten by long study, observation, and experience, and not of every man's naturall reason, for nemo nascitur artifex. This the reason that is dispersed into so many severall heads legall reason est summa ratio. And, therefore, if all were united into one, yet could he not make such a law as the law in England is; because, by many successions of ages, it hath been fined and refined by an infinite number of grave and learned men, and, by long experience, grown to such a perfection for the governrified of it: Neminem oportet esse sapientiorem legibus, ment of this realme, as the old rule may be justly veno man out of his private reason ought to be wiser than the law, which is the perfection of reason." (Co. Litt. 97. b.)

"The substitution," says Mr. Anstey, "of a civil list in the stead of the hereditary revenues, which was begun in the same reign, (Charles II), was afterwards so effectually carried out by the Revolution of 1688, that the people are now familiarised with the change, and have long since ceased to wonder, much less to feel indignant, at the iniquity and exorbitance of the concession thus wrung from the Crown, for a consideration, which, small at first, has become in every succeeding reign smaller and smaller; and which appears to have reached its minimum in the reign of her present Majesty. The change, however, has had one incidental consequence, with which it is more my present purpose to deal. In transferring to Parliament the hereditary assets of the Crown, it has indirectly defrauded the Crown of the means of contenting its duty, by doing justice to its subjects. In shackling with appropriations the beggarly price paid for the transfer, it has environed the throne with a cloud of other claims, created by the occasion, through whom the suppliant for grace and right must fight his way to the presence. Hence the sudden growth and continuous augmentation of petitions to the lower House,-and canvassing of members,-and jobbery, and intrigue,—as means for obtaining satis-proprio loco est grave), but, take it from the water, it canfaction of claims, which should, and formerly would, have been preferred to the person of the Sovereign! Hence the sudden, and almost final and utter desuetude and oblivion, into which the petition of right has sunk; the universal ignorance of the practice-I had almost said, of the right—which now reigns amongst us!"

of which each man draweth according to the strength "The knowledge of the law is like a deepe well, out of his understanding. He that reacheth deepest, he seeth the amiable and admirable secrets of the law. And as the bucket in the depth is easily drawn to the uppermost part of the water, (for nullum elementum in suo

ginnings of this study seem difficult, yet, when the pronot be drawn up but with great difficultie; so, albeit befessor of the law can dive into the depth, it is delightfull, easie, and without any heavy burthen, so long as he keepe himselfe in his own proper element." (Id. 71.a.)

and eminent judges have considered to be no mean evi"The constant practice of conveyancers, which great dence of the law." (Per Lord Langdale, Tullett v. Armstrong, 1 Beav. 1).

We experience, in recurring to these and similar visions of our legal youth, the same melancholy pleasure with which we call back the fairy tales and heroic legends which amused our actual childhood; and in both cases the reminiscence is accompanied with the sad reflection, that the law reformer and the schoolmaster, each in his own way, have taken effectual measures for securing all future generations from the seductions of the like pleasing illusion.

"And babes unborn shall rue the day,

When Brougham of law and lore made play."

We cannot say that we fully sympathise with this pathetic lamentation of Mr. Anstey, the english of which is, that we are to regret that the Crown has parted with its powers of oppression, because it has, at the same time, rendered unavailable the means formerly at its disposal for remedying oppression where it had been practised. But we apprehend, that, while men may reasonably rejoice that the relations of the Crown and the subject, are placed at this day upon so definite a footing, that there can be few occasions for the exercise of the prerogative of "seeing that right be done," because there are few opportunities left for allowing has banished the mythology of the nursery is the least Of the causes of these undesirable effects, that which wrong to be done, still it would be desirable that the exceptionable. The antiquated lover of these antiLegislature should place at the disposal of the Crown quated fictions may, at least, console himself with the the means of giving compensation, that is, of substan- reflection, that the object of his affections remains untially doing justice, wherever, from the still remaining changed-dead only to vulgar fame; but the conveyimperfections of our judicature, a just claim exists ancer feels a deeper pang when he beholds his goddess against the state, for which no constituted body in the falling into contempt, not from popular fickleness, but through the decay of her own attributes. No attorstate is liable except the Crown; for which, therefore, ney's messenger, who has access to the statutes of the the right to seek a remedy by petition of right, un- last few sessions, or hears the jokes that are made upon doubtedly exists, while the enforcing of such remedy is them in the office, will be so green as to take in Lord in most cases utterly impracticable, because the Sove- Coke's boast above quoted, or to receive any other readreign, as such, has no disposable property. We trusting of Finch's celebrated aphorism than this: "The that Lord Cottenham will redeem, during the ensuing sparks of all sciences in the world are raked out in the session, the promise that has elicited Mr. Anstey's more learned than methodical essay, by instituting a parliamentary inquiry into the state of the law upon petitions of right, and bringing in such measures of amelioration, as his own great learning and experience may suggest.

ashes of the law."

The case assumes a more desperate aspect, when we perceive that the divine patient has been reduced to this state, not through the meddling of ignorant quacks, but under the ministrations of men of high reputation, acting with the sanction of the Lord Chancellor,—a leading conveyancer and Queen's counsel and others,-whom, as they have avowed themselves, we may name