The Sun.
London, England, 1850-10-08 00:00:00

N°. 18,109.] LONDON, TUESDAY
tit . •
• ,s. OCTOBER 8, 1850.

SPIRIT of the PUBLIC JOURNALS.

FROM THE MORNING PAPERS OF THIS DAY.

TIMES.—That portion of Lord Brougham's able
pamphlet which treats of the appellate jurisdiction of
the. House of Lords, as well as the letters of " An
Old Barrister," the second of which we publish to-
day, combine in calling attention to a point of the
gravest importance—viz , in what mode should our
ultimate Court of Appeal in all cases, whether civil or
criminal, whether from courts of common law or
equity, be for the future constituted ? Whether
daring the past the House of Lords, aided by the
judges of the land and such Peers as had held judicial
appointments, have done good legal and political ser•
vice in its character of the ultimate appellate court we
need not now stop to inquire, since for practical pur-
poses such an investigation would be of little use.
Almost universally one thing is now admitted—
the present state of our appellate court is wholly
unsatisfactory. Our correspondent, with whose
general observations we for the most part concur,
appears not to have very clearly distinguished tho
different parts of the subject he was handling, or
perhaps we should more accurately express our-
selves by saying that he was so much occupied
with one part and one view of the question, that he
failed to regard it as a whole, to give each portion its
due consideration, and to attach to all of them their
proper importance. The utter impossibility that one
man should duly perform the present duties of the
Chancellor leads to the inquiry—in what way shall
those duties be divided ? This is one question. Those
duties might so be divided as to leave the constitution
of the appellate Court exactly what it is in theory and
in fact. But to do this would not be to grapple fairly
with the present difficulty, and would certainly not
satisfy the public. The proposal of " An Old Bar-
rister".is simply to relieve the Lord Chancellor from
his political functions, and to make a Speaker of the
House of Lords, who might, or night not' be a portion
of the Cabinet. Suppose, however, that the Chief
Judge in Equity, by whatever name he may be distin-
guished, should still remain the presiding judge of the
House of Lords acting in its judicial capacity, is the
'House of Lords so constituted the most fitting Court
of Appeal? and would not there still be a great pro-
bability of the same circumstances occurring which
at the present moment excite disapprobation in the
mind of our correspondent ?
Without attempting to
decide upon the invidious comparisons of the relative
merits, as equity judges, of Lords Brougham and
Cotteaham, we can very easily suppose the present,
and any succeeding Chancellor or Chief Judge in
Equity, unable, either through ill-health or press of
duty in his court, to attend as presiding judge in the
House of Lords; and then, if there should be still
an active Lord Brougham—or some one of equal,
or nearly equal, power, energy, and versatility—he
might again discharge those duties which the Chief
Judge in Equity ought, if possible, to have per
formed. There is, however, another objection to this
plan. " An Old Barrister" .has thought of the
House of Lords only in its capacity of an Appeal
Court from the Courts of Equity, and has only felt
the mischief of appealing from a more to a less cele-
brated judge in equity. But what shall we say to an
appeal from all thelcommon law judges to one equity
judge? If Lord Cottenham were at this moment
presiding in the Lords, and a case in error were ap-
pealed from, we should have the decision, say
of Lord Campbell, aided by the many excellent
lawyers who are now to be found on the common law
bench, on the one side, and we should have on the
other, sitting in judgment on these profound common
law lawyers, the one equity judge, who has all his
life been an equity lawyer. Surely "such a state of
things requires no comment ;" and the disappoint-
ment and dissatisfaction in the mind of the public
would be quite as great as that which might result
from the reversal of Lord Cottenham's decision by his
predecessor in his high office of Chancellor, viz., by
Lord Brougham. A third plan might be suggested,
differing from that of our correspondent, and also from
that which he supposes to be contemplated by the
Government, and that is making the office
of the presiding judge of the Appellate Court
separate and distinct. This post would then be the
great and signal distinction of the legal profession.
Ability of the highest order which the profession con-
tained would be that sought for in such a judge, and
the permanency and high honour of the office would
make it an object of eager ambition, even if attended
by a somewhat modest salary. The expense, indeed,
is the only valid objection that can be brought against
such an arrangement. At present, both in equity and
at common law, there is an appeal jurisdiction.. That
appellate jurisdiction is formed in both cases of legal
men ; but the ultimate appeal from both is nominally
to an unlearned assembly, in fact to some few mem-
bers—at the present time to one member—of that
body who have been lawyers and happen to be
Peers. The system is one productive of great un-
certainty, and this uncertainty leads to many
unnecessary appeals, in numerous cases creating
ruinous expense, and practically effecting great
injustice. A person appointed to the office of ap-
pellate judge upon the same tenure as the other
judges would, on the contrary, act upon a regular
and predetermined system ; it would be his duty
to be both an equity and common law lawyer, and
having time and practice he would of necessity acquire
The Speaker of the House Ad
tshuicshreaqnuoisffiitceerknwoowulleddgien.
the end be great economy.
Lordssalary mbeigsthotwepdropueprolny
under these circumstances be a member of the Cabi-
net and Minister of Justice, in which office he would
find ample occupation for the highest ability and most
If; however, such an appoint-
if the desire' for small savings
officer, or
be irresistible, and the appellate
munewnteahreiediminpdosussithrlye.i
judge must perform
duties not connected with his judicial duties, then
comes the question raised by
would it be wiser to give to the Appellate
Judge the
duties of the Chief Judge in E •
" An Old Barrister"--.-
quity, or those which
belong to the presiding officer in the House of Lards ?
And here again comes another inquiry—must
House of Lords, be . .
of necessity a member
of the Cabinet ?
this presiding
There are grave objections
to the making any judicial office depend upon poli-
tical changes. Upon Speaker of the
these it is needless to dilate.
They have been felt grievously of late years, in spite
of the extraordinary abilities of the men who have
contended for the great office of Chancellor; and the
sense of this evil has in a great measure led to the
dissatisfaction at present existing with respect to the
office of Lord Chancellor. There seems indeed no
more reason for placing the Chief Judge in Equity
or the Chief Appellate Judge in the Cabinet than
placing there the Chief Justice of the Court of
Queen's Bench. Experience has finally settled the
question with respect to the last appointment—no
Ministry would at the present time dare to make the
Chief Justice of the()
-elleen's Bench a Cabinet Minister.
Lord Mansfield and Lord Ellenborough are only to be
considered beacons warning us against the danger that
would result from such a proceeding. To attempt to
draw a distinction by saying that the Chief Justice
may have to try political offenders, and that the
other judges have no such duty, is vain and futile.
Those who sat in the House of Lords in judgment on
Mr. O'Connell's writ of error tried a political
offender, and now, when the tendency of legal re-
forms is to give an appeal in criminal cases, there is
eals even-to the House
every probability of criminal aPP . •
becoming not infrequent. The opinlon of,.the wisest ,
amongst us is setting strongly agaihnsu I
poitical judges
themselves
of every description, and inen w ° telt
ton out of the House
compelled to shut Dr. Lushing
of Commons can hardly, with any show of consist-
ency, make the Chief Judge of the ultimate appellate
court a Member of the cabinet. The duties of
Speaker of the House of Lords do not,_ however, seem
to clash with those of the appellate judge, and provided
the duties of the two offices combined be not too onerous
foroneman,there seems no reason why the wholesome
tendency to economy just
beginning to show itself
should not be thus far encouraged. Such a combi•
nation would give dignity and splendour to the office
of appellate judge, and then the Home of Lords might
still give the aid of its name and authoritylancing evil ra-
to the Ap-
pellate Court, without any counterbalancing
ace of this somewhat ano-
suiting from its perform&
malous function. The clan g ers apprehended by our
from the Chancellor's being
correspondent, arising
taken from the common law bar, we deem under
these circumstances of little moment. The man chosen
as worthy to be the he
ad of the bar of England, pre-
siding as chief judge in the ultimate.
appellate court,
would, we assume,
be a man oflearning and ability,
a profound lawyer in the best sense of that term, and
of equity with the doctrines as
therefore conversant
well as those of the common law. To a mind tho-
roughly imbued with thei sciencet'imbi of law there would
eco nation we be nothing formidable n i ~.
contem-
plate.
CHRONlCLE.—Notwithstanding the prophecies
advisers, Sardinia has not yet cried
of her patronizing
h f Rome. The Synod
" Peecavi," or knelt at t e 00, .
its prayers for the
of Bordeaux must recommence .
,Archbishop who issuffering martyrdom, in exile.
now
The Sardinian Ministers seem to have understood the
state of public opinion ; for not only bee the Arch-
bishop been suspended and banished without any show
of popular tumult, but the most thorough-going advo-
cates of Roman intrigue are compelled to confess, that
the approbation bestowed on the sentence, by the
people, is nearly unanimous. It
seems that the local
authorities of the island of Sardinia have not shown ,

any greater readiness to yield to ecclesiastical en-
i croachments. The turbulent Archbishop of Cagliari
has been compelled, by authority, to quit his diocese ;
and has, by this time, no doubt joined his continental
colleague in the antechambers of the Quirinal palace.
The proceedings which have been adopted against
Monsignor Franzoni are, as !night have been ex-
pected, severely criticised by his partisans. After
loudly complaining of the charge of high treason, on
which it was supposed he would be tried, they de-
nounce the mode of prosecution which was eventually
adopted as obsolete, irregular, and arbitrary. The
proceeding en vole d'abus, for an abuse of official
power, is an ancient process, corresponding in some
degree to the English practice of impeachment. It
had fortunately been determined, before the dispute
with the Archbishop arose, that the appel d'abus was
still in force, notwithstanding the provisions of the
new constitution. The Court of Appeal, which is
formed of eminent lawyers, has almost unanimously
concurred in the sentence by which the Archbishop is
banished from the kingdom, and the possessions of
his see sequestrated in charge of the proper authority.
We are entitled to assume that a sentence delivered
by a competent court is legal; and certainly it
appears to be as moderate as it could have been
under the circumstances. There might have been a
difficulty in dealing with the outrage on public feel-
ing which the Archbishop committed in refusing
the sacraments of the Church to the Minister Santa
Rosa. The malignity and ill -faith of his conduct
were evident; but, in strictly spiritual matters, it
is just and right that no secular tribunal should in-
tervene. The law of the Church, and the law of the
land, gave the power of the keys to the clergy. The
State was powerless in presence of their claims, and
the priesthood had its pound of flesh. But if Mon-
sign or Franzoni was entitled to revenge the quarrel of
Rome on the souls of the dying faithful, he as clearly
transgressed his legitimate prieileges in the circulars
by which the clergy were forbidden to obey one of
the laws of the kingdom. It is said by his partisans
that he might have ,committed what minor offences
he pleased, if .he had respected the Siccardi laws.
We do not doubt that the proceedings against him
were occasioned by his seditious refusal to submit to
the law, and by his obstinate adherence to the claims
of an alien and intrusive authority. Thus far Pied-
mont has displayed admirable prudence and firm-
ness, and, has gained no inconsiderable advan-
tages over the hostile diplomacy of Rome. The
hopes which the Papal advisers entertained of
exciting internal disturbances in the King's
dominions appear to have been baffled by the
sound spirit of the people. The reliance which
may have been placed on the personal fears of the
members of the Government will have been, it may
be supposed, irrevocably shaken by the vigorous
measures adopted against the Archbishop. The next
step in the conflict must be taken by the Vatican, and
we are aware that its resources are as yet by no means
exhausted. It will scarcely consist with the preten-
sions of the Pope to object to the details of the legal
proceedings, which he denounced from the first as acts
of rebellion against his indefeasible authority. Even
if the objections to the appel d'abus were sustainable,
they must be founded on the recognition of the very
constitution which gives force to the Siccardi laws.
The Court of Rome will assume that the proceedings of
the Piedmontese tribunals were a part of the wrongful
policy of the Government. By this time it must be
' sensible of the importance of the contest, though per-
haps not of its own imprudence in provoking it and in
aggravating its violence. It has two principal weapons
to use against its adversary, in its ecclesiastical and so-
vereign characters. It may curse the Piedmontese by its
own authority, or attack them by the aid of its allies.
The scruples of Pius against war have vanished, since
he has had Italians only to fight against ; and it will
be well if his overweening confidence in his spiritual
pretensions leads him to rely on ecclesiastical cen-
sures only. It will be easy to place an interdict on
Piedmont, and to excommunicate the principal offi-
cials ; but it is dangerous to refuse the rights of
Catholicism to a people who may learn to dispense
with them. The secret enemies of the orthodox faith,
who are numerous in all parts of Italy, may soon
become its open and successful opponents, if the clergy
attempt to punish the people. It may be presumed
that the higher functionaries, who are obnoxious to
individual ecclesiastical censure, are sufliciently ac-
quainted with the policy of the Church to endure it
with little oppression to their consciences. They at
least know, and they have boldly maintained, that if
they are excluded from the solemnities of their religion,
it is only for the crime of having asserted national
rights, which Rome had conceded to every state which
was strong enough to . exact the concession. In
France, in Austria, in Italy itself, the priesthood
has been subjected to civil jurisdiction. Constitu-
tional Sardinia was to be kept in bondage too close
even for the Neapolitan Bourbons. If the Papal
Court unlocks its mediaeval thunders, we have little
fear of the result. The religious consequences it is
not easy to foresee, but the longer the contest is con-
tinued the deeper will be the alienation of the people
from the enemies of their country. A far greater
danger may impend from the ambition of neighbours,
incited and excused by the irritated chief of their re-
ligion. The Sardinian Government may well smile
at the threatened hostility of any of its Italian neigh-
bours. The Court of Naples will scarcely venture
to show hostility to the nation which met Austria
in the field without disgrace although de-
feated. That a constitutional Government is more
hated and feared at Rome, or at Naples, than
a Jacobinical Republic, we are not indisposed to
believe. Ten years of orderly freedom in the north-
west of Italy would make ten years more of the
despotic anarchy which prevails in the south an im-
possibility for ever. But the hopes and fears of the
petty Italian potentates can matter little to the assen-
tors of Sardinian liberty. It is on more formidable
forces that the Papal Court relies for the gratification
of its ambition and revenge. Its wishes will probably
be disappointed. Austria has shown no wish for
merelydisturb
calculateor
profitwhichof
Italyis
everyonltalian
independence,igiu s
Motives. On the movements of France it is difficult
Rdinorniae. T
which was perpetrated in 1849, has not 'produced any
honour
likelyexertion
x e
rttoi temptuu wil l thebe invadersused by
to commit a second unprovoked aggression. It is
to destroyhe
despotsthe constitutional
ofof
ItalyS a r-
have long been engaged in the attempt to prove that
freedom is incompatible with stable government. In
carrying out the same policy, the advisers of the Pope
may, perhaps, think that to provoke,a democratic
reaction against their pretensions would be an advan-
tage only second to success in enforcing them.
Their supporters and apologists are already fore-
telling the result which it is the secondary aim of
their intrigues to accomplish. They would wish all
their opponents to be identified with the cause of
anarchy, and they would force them into anarchy for
the purpose. It is in the power of the Piedmontese
nation, by a temperate support of their constitution,
and of the authorities whom it establishes, to disap-
point the wishes of its formidable assailants, and to
prove that there are Italians who can resist oppression
and priestly tyranny without extending an indiscri-
minate hostility to government, or even to religion.
If any of the Republican party should be tempted to
join in the attack on the Sardinian monarchy, by
taking this opportunity for fomenting the discontents
which may exist in any part of the territory, they
would be guilty of treason to the rights and hopes of
their country, which Italy ought never to pardon.
Their sect his injured the cause of liberty enough
already, but sometimes with honest intentions. A
deeper disgrace would be in store for them if they
consented to be the instruments of the intrigues of ,
Antonelli." . _

-------
POST.—We announced on Saturday, as part of
our intelligence from Paris, a circumstance which,
taken in connexion with other incidents of the day,
may be considered of no small importance as a sign
of the disturbed state yet characterising the political
atmosphere in France, and as an index of the degree
of jealousy still threatening to destroy the necessary
union between the different parts of her
lately-
fashioned constitutional machinery. The permanent
committee appointed to represent the Assembly during
its vacation were it appears, summoned to meet
yes-
terday, for an object no less serious than an examina-
tion of the Ministers, and especially of the lliniter of
War, respecting the recent numerous military re-
views, at which the open hand and liberal bearing of
the President towards the troops have been repre-
sented as showing two prominent a desire to
fill the part of the soldier's f
have always felt and stated that, in ritehnelpresl\enret
condition of France, the firmest hand, directed by
the wisest energy, can effect nothing, unless it have
at command, and be ready and able
to grasp, in the
exigency of a moment, the only
engine which expe-
rience shows us to be adequate to such work as awaits
the statesman or ruler who undertakes to clear away
the wreck of a revolution and
hto build a Government
on the ruins of a faller kingom. Except by ensur•
ing and binding to cause the strength and
fidelity of the army, how
can
either
h
Louist terminate Napoleon
they
s stand
d
or the majority of Assemblythe
successfully the mighty task
to which o
ich
pledged, of arresting in its course the terrible circlaenot
revolution, so rapidly working out the ruin of France?
In the maintenance of the arduous post which be has