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order of things. For every one would consider it as inverted; since reason has, in the nature of it, a tendency to prevail over brute force, notwithstanding the possibility it may not prevail, and the necessity which there is of many concurrent circumstances to render it prevalent.
“ Now, I say, virtue in a society has a like tendency to procure superiority and additional power, whether this power be considered as the means of security from opposite power, or of obtaining other advantages. And it has this tendency, by rendering public good an object and end to every member of the society; by putting every one upon consideration and diligence, recollection and self-government, both in order to see what is the most effectual method, and also in order to perform their proper part, for obtaining and preserving it; by uniting a society within itself, and so increasing its strength, and, which is particularly to be mentioned, uniting it by means of veracity and justice. For as these last are principal bonds of union, so benevolence or public spirit, undirected, unrestrained by them, is nobody knows what.”
The introduction to this work was written some weeks before the fatal decision to which the House of Lords came, at the instigation of Lord Wharncliffe. We presume that his lordship acted in accordance with the long-established practice of every executive government which has directed the affairs of Great Britain for the last century. STO
Now, when a question, in itself purely technical, has to be decided by a court of legislation, which assumes also the anomaly of being a court of judicature, it is a simple matter of policy not to suffer this great authority to be left solely to those who are learned in the law. But when the point at issue has been already cleared of all technicalities, and when the unlearned need not say, as did Warwick Bay
did was, and when 15 been al,
inasmuch as these have been discussed, usque ad nauseam; the husk thrown aside, and the kernel exposed thoroughly, so that both law and fact were placed before the Upper House, by the judges of the land, who are not political partizans, then there was required from their lordships no more legal acumen than would be
shewn by any yeoman on their lordships' estates who, under the new jury bill and modern practice, has to give a verdict upon a statement of law and fact.
The consequences of this subservient decision will be to shew how negligent their lordships have been of the really great authority committed to them, and which is in the present day unique. We may ask by what power they sate in judgment on Warren Hastings; by what, on Queen Caroline; if, in fact, the whole secret of the appeal was to rest upon the dicta of the law lords alone. As regards the trial of Warren Hastings, this consideration would have been most important, for there it was a trial by jury; the law was to be expounded by the judges, while with the jury rested the decision on the facts. But we very much mistake, if, on Queen Caroline's trial, the unlearned in the law did not decide the case, not only as to fact and law, but as to the policy of the law and the honour of the crown. And thus the unlearned took this disgraceful case out of the hands of the learned in the law. Well may one say, that the law, the policy, and the facts, are equally against this late decision of the learned in the law.
Now, what says the Lord Chief Justice? Not one word that the verdict is contrary to justice, or contrary to fact; but he asserts only that the jury lists were taken incorrectly, though not with an unfair intent, nor injuriously to Mr. O'Connell. In other words, that it neither vitiated the law, nor perverted the facts, but that the mere theory of the law, and that alone, was not properly observed.
Here is the strongest possible instance of the manner in which a lawyer interprets law, regarding technicalities as invincible obstacles, looking to the letter and the form, rather than to the enlarged practice, and the spirit, and the equity of administrative justice.
We admit Lord Denman to be a man of wisdom, probity, and truth; we admit his legal skill; but what practice can he have had as to the practical working and the original selection of juries? What, surely, save that which is taught by the theory of the law, to which the practice is totally dissimilar. Whereas, those lords and gentlemen, who are accustomed to act as magistrates, must know full well how impracticable is, in effect, the perfecting of that beautiful theoretical fabric on which Lord Denman relies, for this simple reason, that the law is carried into effect by mere machines, men of low degree, constables, headboroughs, and so forth, who have an interest in allowing those to escape, who do not wish to incur the trouble and the odium attached always to the duties of a special jury.
We will assert, from our own personal knowledge as a magistrate, that, on the striking of a special jury at a recent gaol delivery of oyer and terminer, complaints are almost always made that improper persons are left upon the roll, and the most suitable omitted. Such case, however, forming an exception that proves the rule.
People are too apt to think that we are wiser in our generation than those who have gone before, but this complaint is at least not a new one; it was made by Lord Bacon and Blackstone; for, though both these great lawyers were enamoured of the jury system, they declared that it required constant corrections, as to the form and manner in which competent persons should be selected to act as grand jurors. It would be idle to say, that if Judge Jeffreys arose
again, he would once more find juries equally base as in the days of James the Second; or that any jury would convict Romanists, as in the days of Queen Anne, or traitors, as they did on the memorable 1745. Yet Lord Denman's speech is no more than such a one as might have been made in those days, when the spirit of the law was yet dark and doubtful, or when
“that sweet saint, who sate by Russell's side,”
received only brutality as a reward for her devotion, from the political lawyers of the time. .
There is nothing then, in the recent events in Ireland, to justify Lord Denman's speech, or Lord Wharncliffe's authoritative injunction, but a confused and ill-conceived notion of those mixed powers, partly judicial and wholly legislative, which have gone on so long in silence; no man thinking it worth his while to define or ascertain their bounds, until the evil consequences became apparent in some great political disaster.*
On the Continent, the effect of their lordships' decision will be a belief that the Crown has no authority beyond mere pageantry; that the exercise of its highest prerogative is only show, under the guidance of lawyers; and that the noblest order in the State is but a splendid form, after all, waiting upon the rules, and bowing to the decisions of a few law lords, who came there by political, and not hereditary, right.
The practical end of all this abandonment of power
* Had Lord Abinger been alive the votes would have been equal -the Lord Chancellor would have had the casting vote: consequently, had the government only pitchforked one old lawyer into the Upper House, the question might have been in their favour instead of the Whigs.