Page images

triers nominated, and the quorum of five appointed, with the names of the judges, and other particulars, according to the regulations of that act of parliament, I cannot but think that causes were tried by this delegated power in early tiines.

"On the 4th of June one thousand six hundred and twenty-one I find committees first named for trying causes; and the earl of Bridgewater reports at length the rules of their proceedings, which were agreed to by the house; and the powers given to these commictees to send for papers, records, &c. from any court.

« In the reign of James the first an appeal from a decree in the court of chancery was heard before lords committees; their decision and the execution thereof were resisted by the lord keeper, the bishop of Lincoln, and he refused to obey their order ; but their powers upon a reference were strengthened by the house, and the lord keeper, after some difficulty, was obliged to acquiesce.

* This was the first appeal, my lords, from the court of chancery; but it is still more cele brated as an appeal from a decree of that brightest name in the walks of science, but degraded character in the records of the law, lord Bacon; because the proceedings against him were ordered

by by the lords to be extracted from their journals, and deposited among the archives of the court of chancery, as a perpetual memorial of his corruption and punishment.

“I have many other instances upon my notes, of the proceedings of those committees, but will not trouble your lordships with unnecessary proofs; the last instance was the 2d of January one thousand fix hundred and seventy-three, where it was entered, That the committee to which Skinner against the East-India Company was referred, be revived.

" That it was the practice to refer causes to committees after the Restoration, appears from this extract, and from a speech of the chancellor lord Shaftesbury; which not only tends to prove what I assert, but also the custom of morning and evening fittings in the convivial days of the lecond Charles.

« Lord Shaftesbury, in a speech in one thousand fix hundred and seventy-five, says, “ I have “ heard of twenty foolish models and expedients " to secure the justice of the nation, and to “ take this right from your lordships ; (I must « deal freely with your lordships;) these thoughts “ never could have arisen in men's minds, but " that there has been some kind of provocation " that has given the first rise to it.

« Pray,

« Pray, my lords, forgive me on this occasion: " I put you in mind of committee dinners, and «' the scandal of them, and those droves of ladies rs that attended all causes; it was come to that pars, “ that men even hired or borrowed their handsome « wives or daughters to deliver their petitions."

" The application that I shall make of this principle, my lords, is, that in early times such a practice might have obtained; that the lords might have reheard what was decided by a delegation, or by a committee, for the same reason, that in England decrees made by the master of the rolls are reheard by the chancellor: and this principle of rehearing was explained to us by the noble president of this assembly in his able and necessary amendments to a late ecclesiastical bill, when he informed us of the rules and practice of his court, and prescribed, that the report of a master under that act, should be subjected to the revision of the chancellor, from whom his power was derived. But as no instance of such a delegated power to a committee from the lords of England oc'curs in this century, and never obtained in this house, the doctrine can no longer operate when the house hears causes in its own capacity, and as the high court of parliament. • " The next principle will, I hope, explain the true value and meaning of the sixtieth stand

ing order: every one knows that all legislative matters die upon a prorogation or dissolution ; but the rule is the reverse in judicial proceedings, which are transmitted from one session to another, and taken up where they are left off. I assert therefore, that if this house had heard two counfel this day, or all the counsel in a cause, and if the parliament should be prorogued or diffolved this night, they would proceed to hear the rest, or debate upon their judgment, at the precise stage where the cause was interrupted.

- This I assert; but the affertion may be proved by a reference to a report of the lords in England on the 29th of March one thousand six hundred and seventy-three, where this doctrine is laid down upon a long and uniform detail of the precedents from the earliest times. Let us now, my lords, advert to the order itself, as it stands in the Eng. lith journals, on the 14th of February one thoufand six hundred and ninety-four. The order says, “ That petitions for rehearing, which have been heard in the whole or in part, shall lie upon the table, and a day be appointed for taking them into consideration.” Had it said, “ Causes which have been decided in this house,” the construction adopted by the noble viscount would have been manifeft; but a preceding cause, which was handed over from the foregoing session, and VOL. II.

which * The chief justice lord Clonmell,

which was then depending, clearly shews that it had a reference to beginning the cause, and hearing the counsel again; for which purpose peritions had probably been presented.

“Before I conclude, I must differ from a learned lord * in his affertion, that no such proceeding appears in the English or Irish Journals; since I can produce two instances of rehearing causes, one in England, the other in Ireland; but both of them are such dangerous precedents, so irregular, and of fo violent a tendency, that I trust no reference will be made to them with a design to draw them into examples.

" The first instance to which I allude is that of the Irish chancellor Loftus.

« Lord Strafford had made a violent decree against himn at the council-board, had fequestered the great seal, and imprisoned him, for disobedi. ence to this decree'; which forms an article of his impeachment. Upon an appeal to the lords of England in one thousand six hundred and fortytwo, that decree was reversed; but thirty-three years afterwards, in one thousand fix hundred and seventy-five, the cause was reheard upon petition. After much debate, and a strong protest against it, with many names annexed, the cause

« PreviousContinue »