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Blackwood's Edinburgh Magazine, Volume 56, Number 349, November, 1844. Various
Читать онлайн.Название Blackwood's Edinburgh Magazine, Volume 56, Number 349, November, 1844
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Автор произведения Various
Жанр Книги о Путешествиях
Издательство Public Domain
For these, and many other reasons which might be assigned, had we not already exceeded our limits, we have, after a close and a candid study of the judgments delivered by the three peers, and the convincing, the conclusive judgments of the great majority of the judges, come, without hesitation, to the conclusion, that the Lords have not merely decided incorrectly, but have precipitately removed a chief corner-stone from the fabric of our criminal law, and have incurred a very grave responsibility in so doing. We cannot help thinking, that they have forgotten the fundamental distinction which our constitution makes between "jus dare" and "jus dicere." Jus dederunt, non jus dixerunt– an error, however, easily to be accounted for, by a reference to their double capacity, and the confusion it occasions between their judicial and legislative functions. We view with grave apprehension the power exercised by three members of the House of Lords, of overturning so well-established a rule and custom as that attested to them by the judges. What security have we for the integrity of our common law? In the face of the judges' decisions, how decorous and dignified would have been the conduct of the House of Lords in giving way, even if they had differed from the judges; lamenting that such was the law of the land, and resolving to try and persuade the legislature to alter it, as has often been done. Witness the statute of 1 and 2 Geo. IV. c. 78, passed in consequence of the decision of the House of Lords in Rowe v. Young, 2 Brod. and Bing. 165. The House of Commons has resented such interference with the laws by the House of Lords; who, in the case of Reeve v. Young, (1 Salkeld, 227,) "moved by the hardship of the case, reversed the judgments of the courts below, contrary to the opinion of all the judges." But the House of Commons, "in reproof of this assumption of legislative authority in the Lords," immediately brought in the 10 and 11 Will. III. c. 16, which passed into a statute.27 May we venture to suggest that the elaborate, and long, and deeply-considered opinions of the judges of the land, who had been summoned by the Lords to advise them, were worthy of more than the single day, or day and a half's examination which they received before they were so peremptorily pronounced to be "clearly erroneous?" And may we, with no little pain, suggest to Lord Campbell, that the array of Gamaliels at whose feet he had sate during his whole life – whose feet he had indeed so very recently quitted – whose integrity, whose profound learning, whose sagacity, none has had larger experience of than he – are entitled to look at his cavalier-like treatment of their best services, with a feeling stronger than that of mere surprise? In concluding this long article – in expressing our conviction of the error of the Lords – we feel one consolation at all events – that if we err, we err in good company; and that we are not conscious of having transgressed the limits of legitimate discussion, in exercising as undoubted a right of its kind, as these three peers exercised in branding so overwhelming a majority of the judges of the land with the imputation of ignorance of those laws which all their lives had been spent in administering. The very existence of the ancient common law of the land is put in jeopardy by such a procedure as that which we have been discussing; and our honest conviction, however erroneous, that such is the case, will suffice to excuse the freedom of our strictures; if, indeed, we require an excuse for echoing the stern declaration of on forefathers —Nolumus leges Angliæ mutari.
As to him who has reaped the benefit of this lamentable miscarriage – Mr O'Connell – the law of the land has nevertheless been vindicated, and the stability of the empire secured, to a far greater extent than he is willing to acknowledge. Agitation he must continue; he must play out his base and sordid game. But his powers of mischief are manifestly and seriously crippled; and we quit him with the language addressed by Pope to a mean one of his day —
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