PENALTY OF THE JUDICIAL PEERAGE.
Moss. opportunely with reference to Lord CorreNHAsfs Bill for depriving the Chancellor in the House of Lords of his jurisdiction in appeals against his own judgments elsewhere, yesterday's Courier presents us with a curious article upon Lord LYND- HURST. It appears that he gave judgment in a cause while Chief Baron of the Exchequer ; that his judgment was appealed against ; that when the Great Seal was in commission, he sat in the House of Lords along with Lord BROUGHAM to hear the ap- peal against his own decision; that judgment was postponed till this session ; and that now, in consequence of Lord BROUGHAM'S absence, it is become necessary either that Lord LYNDHURST, sitting alone, should give judgment on the complaint against his own decision, or that the appeal should be reheard from the be- ginning. The latter course has been determined on: the cause is to be heard all over again,—that is, for the third time,—at a cost, of which those even who know least of appeals in the House of Lords, will obtain some idea, when we mention that it is " the great cause," commonly so called, of SMALL Versus ArrwooD. The delay and expense, therefore, of this third hearing, are owing, not to any fault of Lord LYNDHURST perhaps, (" though," says the Courier," there are not wanting cases in which a Law Lord has delicately and prudently gone out of his way to avoid the inde- cent or painful task of sitting as judge in an appeal against himself,") but to the system, which, the Great Seal being in commission, called upon an ennobled Chief Baron of the Exche- quer to sit as judge in appeals from his own decisions in a court below. " So much," says the Courier, " for the past ;" and then our straightforward contemporary proceeds as follows.
" But now what is about to happen? Either we have been misinformed, and shall have to make humble apology to Lord Lyndhurst, or that noble lord does not intend to leave this appeal against himself in the hands of other Law Lords against whom it is not directed. He intends, unless we have been greatly imposed on, to take part in the (for him) third hearing of this cause. One should think that he would gladly avail himself of the opportunity presented by the addition of Lord Langdale and Lord Cottenham to the Peerage, to get rid of a hardly tolerable annoyance. What can he his motive for thus exposing himself to the suspicion of the vulgar, who are ignorant of his high-souled in- tegrity ? As he is no longer quasi Chancellor ; as there are now four active Equity Judges in the House of Lords besides himself—(PLC NKET; ABINGER, LANGDALE, and COTTE S11.1)1) ; as in Equity, all the matter of a cause is written, so that there exists no analogy between this case and that of a Com- mon Law Judge, who, on a motion for the new trial of a cause heard else- where by himself and a Jury, sits with his brethren on the bench, to aid therm as well by explaining the reasons of his direction to the Jury, as by re- porting the verbal evidence ; since there is no conceivable public ground on which LordLYN 1)11t: RST can be required thus to incur suspicion and odium, what can be his motive for the self-sacrifice?
" Can it be that the mortified Tory politician mistakes the appellant in this cause fur the founder of Political Unions, who has certainly done more than most men towardi the overthrow of Tory power? Of course not ; for to sup- pose this, w..ohl be to suspect a judge of the foulest intention ; besides that the appellant in this ease is well-known, we beliLve, to be no politicise, but a mere money-grub without two ideas beyond the making of pig iron. It is only fail- ing some likely motive, that we have thus guessed at one so absurdly impro • liable. In Russia or Italy, where a judge is not at all responsible to publics opi• uion, and where, moreover, so rich and influential a body as the joint stock plaintiff in this cause, in whose favour Lord Lyndhurst has already decided once, would be at no loss for means whereby to obtain a second judgment on their side ; there, indeed, the motive of a judge in volunteering to hear an appeal against himself would be ovious enough. But here in England, and in 1636, whatever the act may be, the motive caoot be corrupt. What then is it ? A strong one it must be, which has led the noble lord to invite remarks like these. We pause for a reply."
Some reply will of course be offered to the Courier ; for, though we may agree with the Chronicle of yesterday, in thinking that Lord LYNDHURST is " the most reckless member of the Upper House, and the most dangerous counsellor of their Lordships," we dare not say with our morning contemporary, that Lord LYNDHURST " has nothing to lose." Surely he has character to lose, if not as a legislator, yet as a judicial Peer. The charge of the Courier must be answered, for the sake of Lord LYNDHURST'S judicial reputation. " JOHN SINGLETON COPLEY," as he would still be called in his native America, is amiable in private life, and, politics apart, has fewer enemies than most men. If he has any, we are not of the number ; and we trust, therefore, that he will be able either to deny, or to explain satisfactorily, what at present has so black an appearance.
But with Lord LYNDHURST, personally or politically, the press has really no concern on this occasion. The charge relates to that for which the Tories even have recently expressed a most tender attachment,—namely, " the impartial administration of justice."
" If a plain man were asked, what is the greatestabsurdity of English law? he would probably answer—the appeal from the Chancellor in Westoatoster Hall to the Chancellor on the Woolsaok. For,i n cases of appeal from the Court of Chancery to the House of Lords, what is the matter which the supreme Judge has to determine? He has to pass judgment on a former decision of his own. The appeal alters the character of the cause. Whether the plaintiff or defendant in the cause be the appellant, the Judge who decided in the first instance, becomes, as it were, the defendant. By the appeal he is charged with having passed a wrong judgment. He firmly believes, of course, that his judgment was right. If treflection had caused him to doubt, or even to change his mind on that point, still he must feel a strong disinclination to condemn his own act, and to pronounce the condemnation with his own lips. He is the last person, in short, who ought to hear the appeal against his own decision."
It will be of little use that Lord COTTENHAM, attending to a public outcry of long standing, should bring in a bill for pre- venting Chancellors in one place from sitting in judgment on their own decisions in another place, if noble Chief Barons of the Exchequer and Masters of the Rolls are to retain this monstrous privilege. A privilege, indeed, it is not, but a penalty, as the Courier says, "to a person of honourable and delicate feelings." If Lord COTTENHAM relieve himself from the irksome burden, will he leave it to weigh on the Lords LYNDHURST, ABINGER, and LANGDALE ?
We shall return to this subject next week.
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