The Sun.
London, England, 1844-09-14 00:00:00

SPIRIT of the PUBLIC JOURNALS.
PROM THE EVENING PAPERS or YESTERDAY.
GLOBE.—The Lord Chief Justice Pennefather
and the Irish Attorney-General are said to be in
London, waiting Sir Robert Peel's return from
Drayton, where the Right Honourable Baronet is de-
tained by the alarming illness of his daughter. The
mortifying position in which the Chief of the
Irish Bench and the Chief of the Irish Bar
are placed by the defeat of the prosecution
in which they respectfully played such pro-
minent parts the extra judicial zeal of the
Judge forming a fit accompaniment to the daring
duel invitation of the Attorney-General—has led to
the conclusion that the object of these functionaries
in visiting our metropolis, at this dull season, is to
place the resignation of their respective offices in the
Premier's own hands. Mr. Justice Burton, it is un-
derstood, will also retire from the Bench. Advanced
age might have suggested this course to him ere
this. Had the suggestion been adopted, he would
have been spared the pain, and been exempted from
the depreciating reflections upon his previously
well-sustained judicial reputation, to which he,
in common with the entire Court, has been exposed.
It seems now to be generally admitted that the pro-
secution against O'Connell and the extraordinary cir-
cumstances which marked the different stages of the
proceedings, prescrille but one course to the Judges
of the Court, and the principal law-officers of the
Crown. ,Retirement from public life has become
4 duty which they owe to themselves, and
the performance of which is expected from
them by their country. The question is asked in
every circle where its bearings are understood and
its tendencies perceived. After what has taken place,
can the men who pronounced the judgment, and the
Attorney-General who defended it, and maintained it
to the last as legally valid ; who acted upon it, and
consigned O'Connell and his co-defendants to a prison,
in. pursuance of a sentence founded upon the indict-
ment and verdict which have been set aside—it
is asked, can these functionaries continue to fill
the posts for which they have shown themselves
incompetent, by reason of the lack of legal
acumen and learning which they have displayed ?
We do not here dwell on the series of monstrous and
oppressive acts with which they allowed every stage
of the State prosecutions to be accompanied. For
these they ought to answer at the bar of the House
of Lords. The point to which we now allude, and
wish to urge upon their consideration—and especially
upon the serious consideration of the Government—is,
whether, by the decision of the highest legal authori-
ties in this country, their reputation as mere lawyers
has net been so damaged, that they can no longer con-
tinue in the exercise of their important functions with
satisfaction to themselves, or with safety to the pub-
lic ? Of the eleven counts, of which the monster in-
dictment consisted, six were declared to be invalid
by the unanimous opinion of the English judges. Of
the counts thus condemned, two (the 6th and
lth) were of the highest importance. Yet upon
these very counts—notwithstanding the objec-
tions taken to them at the time, by the defendants'
counsel, and which objections have since been
proved to be well taken and valid—did the
court mainly rely, when pronouncing judgment,
and apportioning punishment on the parties. After
such a flagrant mistake as this, so clearly pointed out
to them, and yet pertinaciously persisted in ; and
after the damnatory decision of all the English judges
upon these clauses ; can the judges of the Irish Court
of Queen's Bench remain where they are ? Can the
Irish Attorney-General continue in the post of prin-
cipal law adviser of the Government ? Will not the
slur that has been cast upon them induce them
to relinquish situations for which their positive
ignorance shows them to be unqualified ? In
every other profession but that of the law so
serious a mistake would be ruinous to the parties.
No naval or military officer could retain his com-
mission an hour after so direct a censure had been
passed upon his proceedings. No man of high-
toned feeling, even in a civil cqoacity, could endure
so direct a condemnation of his conduct from
his ;superiors ; even though the consequences in-
volved were far more trifling than those which
must result from the failure of the State prosecu-
tion. Mr. Attorney-General Smith, after the breach
of the peace which he committed by challeng-
ing one of the defendant's counsel in open Court,
awl while the trial was proceeding thought him-
self called upon to tender his resignation, does
he not consider a due knowledge of the Mw, with
all its niceties and technicalities, as essential in an
.Attorney-General as a little coolness of head, the
occasional want of which in an Irish barrister is, per-
haps, excusable ? Will not Mr. Attorney-General
Smith retire at once into a private—a very private—
station ; where he may devote his leisure to the
improvement both of his law and his temper ;
and to anxious consideration of his future prospects ?
All hope of elevation to the bench is now, we presume,
extinct, even in his owl bosom. With the excep-
ti in of Mr. Justice Perrin, who declared himself in
favour of a new trial for Mr. O'Connell and another
of the defendants, we do hope and expect that a new
botch of
ijudges will be created for the Irish Court
of Queen s Bench, and a new Attorney-General be
appointed, before the commencement of the ensuing
term. The legal functionaries who have so signally
failed in the discharge of their duties will, we trust,
take the hint, and tender their resignations. Relieved
from duties for which they have shown themselves in-
competent, they may, in the more appropriate stations
of private life, have their legal errors forgiven, if not
forgotten, by their country, and their equanimity of
mind restored.
STANDARD.—The late Proces-Afenstre, and the
decision of Lords against Lawyers, and of Politicians
against Judges, cannot be too gravely canvassed or
too carefully considered. It is calculated to affect all
rights, excepting on questions unconnected with
party. These are safe enough ; witness the proceed-
ings of the law Lords last week, when they disposed
of no fewer than nineteen questions without a dis-
sentient voice. On one case some difference of opi-
nion arose, but it was, on being put to the vote,
decided in the affirmative by a large majority.
Now we are justified in believing that when politics
excite, and party feeling interposes its baneful influ-
ence, the law is not so sacred, the judges, its oracles,
are not so much respected, and the subject's rights
are not so perfectly safe as they ought to he. This is
a serious consideration ; but the more it is contemp-
lated the more likely we shall be to discover some re-
medy, and obtain some protection against party and
political judgments. In referring to the recent deci-
sion of Lords Denman, Cottenhani, and Campbell, it is
impossible to overlook the part taken by one of
these learned persons in a recent proceeding of
a kind very nearly judicial. Private Bills are always
regarded as questions of a judiciary character, with
which party has nothing whatever to do. Yet, on an
occasion on which a road-Bill came before the House, in
which Lord Brougham had an interest, as it affected
the value of that portion of his property through which
the road was to pass, the Whigs, hounded on by one of
the law Lords whose judgment has excited such deep
and deserved attention, voted almost avowedly as
party men, against their party's adversary, and defeated
bim by a majority of one. Those who may remember
the case cannot fail to have been struck with the total
negation of justice by which the decision was charac-
terised, because so undisguisedly the result of party
arranifement. After this experiment, and the still
more instructive one of last week, Lord Brougham
would hardly act so inconsiderately as to contest a
question of private right again before a tribunal of
which his noble and learned Whig friends were to be
the judges. The Lords at large are, by the law
of the land, all judges, and Lord Wharncliffe may
have been correct in affirming that their inter-
ference is not called for in ordinary cases. 'Where
no party prejudice is likely.to create a bias (some-
times involuntary), which is calculated to interfere
with the calm deliberation of the question, lay
Lords should leave the decision of the case to the
law Lords. It is equally clear, however, that where
the ease is one purely political, as was that of
O'Connell and his fellow-conspirators, the lay Lords
ought to take part in the proceedings ; or else
why submit a series of questions on the law of the
case to the judges ? Such a reference could not
have been intended for the guidance of the law
Lords. For whose benefit, then, were
the judges of
the inferior courts consulted' ? Their opinion ought
to have been considered as tantamount to the charge
of a common law judge to a jury empannelle d to try
an issue in an ordinary court. Are the lay Lords less
intelligent than an ordinary jury ? Were theyy, in a
case, the law of which had
been so explicitly' de-
less eligible to decide honestly
fined, and justly
than twelve men selected from a jury panel ?-
The
very notion is preposterous ; and by their tacit
abandonment of their prerogative on this occasion,
the lay Lords have given a fresh
and dangerous agitation. They;impulse to a wicked
had seen the judges
called in by the Lord Chancellor, because the case
was to all intents and purposes a political one. They
were aware that those judges had almost unanimously
decided in favour of the validity of the judgment ;
and that the opinions of so large a majority of
those learned personages were deserving of
all respect. They, however, abandoned the
final decision of the case to three law Lords,
one of them wholly ignorant of criminal
law; another compromised by having expressed a
decided opinion on the case long before it came ju-
dicially before him ; and a third, to say the least,
not excepted from that fallibility of judgment to
which all men, however eminent,' are occasionally
subject. The judges of this Court of Cessation
were notoriously all members, and two of them
active ones; of the Whig party, the Lichfield
}Luse contractors! They rejected the opinions
of eleven out of fourteen of the common law
fudges, the Lord Cl•ancellor, and Lord Brougham,
al • •
l intimately acquainted with the common and
criminal law. If such a course was the correct one,
why 119°P 114 tztTellers iu prim? Why detain