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Lord MOUNTMORRES'S SPEECH
relative to rehearing Causes.
[Referred to in vol. i. p. 155.] THE sixtieth standing order about rehear1 ing causes being read, as follows:
“ No petition which relates to the rehearing as of any cause, or part of a cause, formerly “ heard in this house, shall be read the same « day it is offered; but shall lie upon the table, « and a future day be appointed for reading " thereof, after twelve of the clock.”
The case of Magrath versus lord Muskerry having been decided in favour of the latter, upon a close division of five to four, three weeks before, lord Perry contended, that under this order the
cause might be reheard; upon which the author made the following reply :
“ WERE I, my lords, to consult my own inclination, I would certainly remain silent upon the present important and arduous question. I should be sorry, however, were any information which I may accidentally possess; lost by my silence; it is, however, but too true, that though I enter once more into the fervice of this house with the same ardour as before, yet neither my voice nor strength are calculated to answer laborious disquisitions : an enfeebled body but ill obeys the efforts of an active and laborious mind*.
« It were to be wished, my lords, that the learned viscount had applied his usual industry to the construction of the sixtieth standing order, before he had pronounced that it justified, or even countenanced the doctrine of rehearing a caufe already decided in this house. I pay due regard to the public attestation; I pay due attention to his late situation in this country, in which possibly no man has ever acted with more dignity, or in more difficult times; but I confine myself to the present question, without any reference to what is past. It is, generally speaking,
* This passage alludes to the speaker having been wounded in an affair of honour relative to the university of Dublin.
by industry and application alone to a given subject, that one man excels another: and for this we have the testimony of the greatest luminary that Providence has permitted to appear among men, I mean that of fir Isaac Newton ; who declared, that he was not conscious of any advantage above his fellow-mortals, more than what constant unwearied application to a given lubject, without suffering his thoughts to be diverted from it, had produced : I say, this testimony is sufficient co prove that intuitive knowledge is not allotted to man.
« But, my lords, we have before us a striking example in the person of the noble president of this assembly, of what an unwearied attention to his profeffion will effect, since the noble and learned lord seems, as he advances in years, to advance in knowledge, in brevity, and in perspicuity.
« The order, my lords, which seems to countenance the doctrine of rehearing a cause already decided in this house, was adopted, together with fourteen other orders, in one thousand seven hundred and seven, from the lords of England: no preceding case in our journals can furnish a reason for the adoption. Its origin, and the reafon upon which it is built, must be traced in the records of the lords of England. I should not,
my lords, think myself qualified for such an investigation, were it not that I am at liberty to mention, that, at the desire of the noble president of this assembly, I was led to inform myself upon an arduous point which arose in the Ely cause, relative to the mode of taking the judges opinions : this discussion induced me to traverse the voluminous records of the lords of England, without guide or index; and I speak from notes which I have accurately taken, from the commencement of their journals.
« Two principles I shall apply to the construction of the sixtieth standing order: the first, That causes were not originally heard by the lords of England, but by select committees of that house: the second, That all judicial matters remain in the same state from one session to another'; and if interrupted by prorogation or diffolution, are taken up at the point where they were discontinued. The first tends to shew, that rehearing causes might have anciently prevailed, though it can no longer be justified: the second proves, that the sixtieth order relates to a different proceeding, and by no means justifies the principle which is countenanced by the noble viscount.
“ To many, my lords, I may probably appear to digress into an unnecessary parade of parlia
mentary knowledge ; but if I should be ho. noured with the attention of your lordships, I truft I shall not only prove the principles, but apply and connect thern with the question under your lordships consideration.
« The first writ of error that I can trace in the journals of the lords of England, is entered the 25th of February one thousand five hundred and eighty; and in one thousand five hundred and eighty-five the second writ of error was brought in by the chief justice sir Christopher Wraye, when the present form of their introduction was established. ..
" I am at a loss, my lords, to account for the mode in which causes were decided before that time, unless a curious report of the ist of May one thousand six hundred and eighty-nine can throw some light upon the question. This relaced to an act of the 14th of Edward the third, and a declaration that it was still in force; by that law, according to the opinion of the great antiquarian, Mr. Petyt, who was consulted, five lords were to be appointed to try causes, with the aslistance of the sages of the law. I offer this as a conjecture; but when I compare it with the names of the triers of petitions, which appear in the journals from the commencement, in the first year of Henry the eighth, where I find those