ART. II. Gwillim's Abridgment of the Law.

(Concluded from Page 289.)

prac

THE primary object with the editor of a law-book, and more efpecially of an Abridgment (which is, to the tifing lawyer, at once a dictionary and an index) is to bring forward all the recent decitions of the courts, fo as to give, in one view, the law of the time. If an editor of Bacon's Abridgment had not done this, he would have afforded cause of complaint; but Mr. Gwillim has fulfilled this part of his duty with fcrupulous accuracy, and has befides accompanied fuch additions with a degree of difcuffion, which is very informing and interesting. Inftances of this may be seen in what is faid on The Affidavit to hold to Bail," in vol. i, pp. 326, 327. and in vol. iv, p. 337, in the note upon "Donations mortis caufa," where the opinions that have lately been given in our courts on these anomalous teftamentary gifts, are compared with those of the Roman lawyers. But the additions of this fort made to the Abridgment, are too numerous to be pointed out; the editor feems to have endeavoured, in general, to comprefs the work, as much as poffible, and has therefore interfperfed his new matter, in all parts, fo as to infufe it into the body of the work rather than give it the appearance of additions; fome of these, however, from their length, ftill appear prominent; as the introductory part to the title "Trover," in vol. vi, p. 677, and what he has faid under the title " Tythes," in the fame vol. pp. 708, 709, 710, upon the nature of tythes; a fubject, which the editor, we know, has purfued with great attention: and, it is thought, he will foon favour the profeffion with the refult of his researches, in fome diftin&t treatife. Among the additions, a very diftinguished place is due to thofe which have been made to the title "Remainder and Reverfion." It is known that this title, in the original edition of the work, was only an extract from a manufcript treatife of Lord Chief Baron Gilbert. This manufcript is in the hands of Mr. Hargrave, who, among his other literary donations to the profeffion of the law, obligingly communicated his manufcript to the editor, and thus enabled him to give an almost entirely new treatife on the head of Remainder and Reverfion." Thefe additions, and indeed all the additions through the whole of the work, are fo marked, as to diftinguith the parts for which the prefent editor is answerable.

We are obliged to Mr. Gwillim, not only for the additions he has made to the original work, but for the pains he has taken to purge it from the impurities which it had contracted, from the negligence, depraved notions, or ignorance of former editors. A ftriking inftance of this may be feen in the following controverfial note, on the title " Prerogative, where he examines and refutes, most fatisfactorily, a piece of trite common-place whiggifm, that may pafs, like other vulgar conceptions, in a political pamphlet, but is a difgrace to a law-book. The former editor had ventured, as a lawyer, to lay down, that the fovereignty refides in King, Lords, and Commons, as it were, jointly, in equal authority; and that the King is not fovereign, but only one of the eftates of the realm. Upon which doctrine, Mr. G. makes the following obfervations:

"This paffage, which has been induftrioufly foifted into the work by the laft editor, abounds throughout with the most dangerous poli. tical errors. It gives a falfe view of the nature of our government: it reprefents it as almost a pure republick. From the qualifications which the kingly power is fubjected to, the editor would infer the nonexiftence of the power itself: Because the king acts with advice in all cafes, and with advice and confent in fome cafes, therefore he never acts proprio jure. Because the law hath affigned him various counsellours to aid and advife him in the deliberative and executive parts of his government, therefore thefe counfellours are co-equal and co-ordinate with him. But let us mark the feveral parts of this notable paffage, and let us fee how well they correfpond with the authorities we thail hereafter cite, authorities drawn from our records and ftatute books, and from the writings and fpeeches of men eminent for their knowledge of the law and conftitution of their country, and not fufpected of any blind attachment to monarchy. "The king is not the fovereign of the ftate, but the people's executive magiftrate."" Sovereignty refides where the conftitution has placed the legislative power, viz. in king, lords, and commons, in parliament affembled.-So that the king, in his political capacity, as one of the ftates of the realm, poffeffes a part, and only a part of the fovereignty; but is not fovereign, any more than a part is equal to the whole."-In the firft place this writer feems to fuppofe, that the fovereign power of a ftate confifts merely in legiflation; whereas the power of a state confifts equally in enforcing the execution of laws when made, as in the making of them." But, faith this writer," the king is not the fovereign of the flate, but the people's executive magiftrate;"-if then the king is not the fovereign of the ftate, but the people's executive magiftrate, the people are the fovereign of the ftate, for the king is their magiftrate: but according to this writer, the fovereignty is not lodged in the people only, but in king, lords, and commons; then, upon this writer's own hypothefis, the people cannot be fovereign, for, to ufe his own words, a part cannot be equal to the whole; but if they are not fovereign, how can the king be the people's executive magiftrate! whence is their authority to commiffion this officer!-But fo far from the king not being the fovereign

fovereign of the ftate, it will appear from the following authorities, that the whole power of the ftate, both legislative and executive, fubject to certain limitations and qualifications, is vefted in the king alone; that he, with the advice and confent of his great council, makes laws; and, with the advice of other councils, executes thofe laws when made that he is not one of the eftates of the realm, as this writer fuppofeth him to be, but paramount thofe eftates. Lord Coke faith, in his 4th Inft. pa. 3. that the king is caput, principium et finis of his court of parliament. In 22 E. 3. Hil. term, plea 25. it is laid down thus: Et fuit dit, que le roy fait les leis par affent des peres et de la com mune, et non pas les peres et la commune.

"According to Lord Hale, "Although that the English monarchy is not in all refpects abfolute and unlimited, but hath certain qualifications of monarchical power, efpecially in point of making laws, and impofing taxes upon the people; yet, certainly, fince the denomination of government is ad plurimum, the government is monarchical, and not aristocratical or democratical. And hence it is, that all jurisdiction in this realm, whether ecclefiaftical or civil, is derived from the crown; and that the exercise thereof in the minifters or judges, to whom it is fo delegated by the crown, is in right of the crown, and by virtue of a delegation from it." Id. 190. And in a preceding part of this tract, Lord Hale, fpeaking of the deliberative and executive parts of civil government, fays, "In both which, though the king under God be fupreme governor and fountain; yet it is neceffary for him to call in others in partem folicitudinis, and, as to ufe their affiftance in the executive part, fo to have their advice and council in the deliberative part of his government." Hale's Jurifd. of the Lords' Houfe, pa. 4. Again, Whitelock in his comment on the parliamentary writ, fays, "The making of ftatutes is by the king with the affent of the lords and commons in parliament." Vol. i. 406. And farther, the ftyle of our acts of parliament is, "Be it enacted by the King's most excellent Majefty, by and with the advice and confent of the Lords Spiritual and temporal, and Commons in parliament affembled." Even in money bills, when the commons have granted the king their money, they pray that he will be graciously pleafed to make it a law. "We your Majesty's most dutiful and loyal fubjects, the Commons of Great Britain in parliament affembled, having, &c. &c. Do befeech your Majefty that it may be enacted, and be it enacted by the King's moft excellent Majefty, by and with the advice and confent, &c. &c."

With refpect to the king's not being one of the eftates of the realm, read the words of Lord Hale in another part of the tract above referred to. The nobility, clergy, and commonalty are the three eftates of the kingdom. The king comes in upon a higher denomination and title, namely, the head of these three eftates. And therefore they that have gone about to make the king one of the three eftates, are mistaken, as will eafily appear to any that will but read the records fully, being, viz. Rot. Parl. 9 H. 5. n. 15. the conclufion of the peace between the kings of England and France by the king's command in parliament, 2 May, 9 H. 5. read coram tribus ftatibus regni, viz. prælatis et clero, nobilibus et magnatibus, et communitate regni Anglie, and by them affented to. Rot. Parl. 3 & 4 E. 4. n. 23. le rog

et

et les trois eftates. Rot. Parl. 13 E. 4. n. 16 & 17. domino rege et tribus flatibus regni ftantibus in eodem parliamento. And in the first parliament of the ufurper R. 3. who would be fure to want no formality to countenance his ufurpation, Rot. Parl. 1. titulus Regius, there is recited an inftrument allowing him to be king before his coronation was declared in the name of the three eftates of this realm of England, viz. the lords fpiritual and temporal, and commons, "Bee it ordained,” that "the tenour of the faid rolle, with all the contynue of the fame, prefented as is abovesaid, and delivered to our beforefaid fouverain lord the king, in the name and on the behalf of the fayd three eftates out of parliament, now by the fame three eftates affembled in this prefent parlement, and by auctorite of the fame, bee ratyfied, enrolled, recorded," &c. This, though done in a time of ufurpation, yet fufficiently evidenceth what the three ettates were. And the objections against it, 1. that two of thofe eftates are conftituents of the lords* houfe, and fo must outbalance the commons, which are but one of the three eftates; and, z. that the lords fpiritual by this means should have a negative voice upon the lords temporal and commons, and fo no law could be made without the confent of the major part of the fpiritual lords and the major part of the temporal lords, as well as the moft part of the commonalty: I fay these objections are vain. For though it be true, that two of the three eftates are conftituents of the lords' houfe, yet they conftitute but one house. And the laws and cuftoms of the kingdom, which are the true measure of all bounds of power, have given a negative voice of either houfe upon the other, and of the king upon both; but have not given a negative voice of only one of the two eftates conftituting the lords' houfe unto the other, or to the commons being the third eftate; the legislative power being lodged in the king with the affent of the two houfes of parliament as fuch, and not with the affent of the three eftates fimply confidered as fuch; for it is the fettled conftitution and cuftom of the kingdom, that fixeth and def neth where the legislative power is lodged, not notions and fancies." Hale's Jurifdict. of the Lords' Houfe, &c. pa. 10, 11. And Lord Coke, before him, had begun his chapter on the High Court of Parliament in thefe words: "This court confifteth of the King's Majefty, fitting there, as in his royal political capacity, and of the three eftates of the realm, viz." &c. 4th Inft. cap. 1. And after him, at the memorable æra of the Revolution, in the preamble to the Bill of Rights, the Convention Parliament ufe thefe words: "Whereas the lords fpiritual and temporal, and commons, affembled at Westminster, lawfully, fully, and freely reprefenting all the eftates of the people of this realm, did, upon, &c. prefent unto their Majefties, &c. Stat. 1 W. and M. Seff. 2. c. z." Vol. v, p. 487.

I

After which phalanx of authorities, he adduces one from the prefent Attorney General's addrefs to the jury in Hardy's cafe; where he says,

"The power of the ftate, by which I mean the power of making laws, and inforcing the execution of them, when made, is refted in the King; enacting laws in the one cafe, that is in his legiflative capa city, by, and with the advice, and confent of the Lords Spiritual and

Temporal,

Temporal, and of the Commons in Parliament affembled, according to the law and conftitutional custom of England: in the other cafe, executing the laws, when made, in fubferviency to the laws fo made, and with the advice which the law and the constitution hath affigned to him, in almost every inftance, in which it has called upon him to act for the benefit of the fubject.”

A declaration fo plain and explicit as this is, and delivered on fo folemn an occafion, without being contradicted or queftioned, must be taken to be the beft, and the most commonly received notion of the fovereign power, among lawyers and well-informed men. We are ready to exprefs our entire approbation of it; and we are glad to fee, in thefe times, when men are called upon to defend our conftitution, and therefore ought to know the frame and structure of it, in order to choose their ground of argument, that Mr. G. has brought together fo much found matter upon this important piece of conftitutional knowledge, in a work that must come into the hands of every. ftudent of the law.

ART. III. Obfervations on the Claims of the Moderns, to fome. Difcoveries in Chemistry and Phyfiology. By G. D. Yeates, M. B. &c. 8vo. 403 pp. 75. 6d. Sold by J. Debrett. 1798.

ONE of the molt philofophical productions of the laft cen

tury, is a work of Dr. John Mayow, entitled Traciatus quinque Medico-Phyfici, quorum primus agit de Sal-Nitro, et Spiritu nitro-aereo; Secundus de Refpiratione; Tertius de Refpiratione Foetus in utero et ovo; Quartus de Motu Mufculari, et Spiritibus Animalibus; Ultimus de Rhachitide. Oxonii 1674.

The experiments, the reafoning, and the difcoveries which are contained in this publication, place Dr. Mayow above the level of his cotemporary writers, by fhowing, that he was ready in contriving, dexterous in performing experiments, and fagacious in his views. His work is remarkable, principally for containing a great part of the modern theory concerning refpiration, the conftitution of the atmosphere, &c.

Though the moft remarkable contents of Dr. Mayow's book have been noticed by various modern writers, yet Mr. Yeates thinks that the Doctor has not met with the juftice which is due to his merit; and it feems, that the work at present under our confideration, has been written principally for the purpofe of rendering him that juftice, by manifefting to the scientific

world,