^, ..^.^ IMAGE EVALUATION TEST TARGET (MT-3) % 1.0 1^ us 1^ K£ ; ui Kii 12.2 ■3A "l^ Hi I.I U 1^ 1^ IJ& [11.25 Ill 1.4 J4 Photographic Sciences CorporatiGn 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) S73-4S03 '^ >t amongst the people so remote, that no measures could be required to promote the one, or obviate the other. And in consequence it is to be presumed, of this so happy state of society, the judgments of the Court of Queen's Bench, which decides upon whatever Her Majesty's subjects in this Province hold most dear, are placed beyond controul. It is true that an appeal is permitted to the Governor in Council ; but that proceeding is so palpably 12 an idle, immcaning form, that it is not referred to, (3von by the most unthinking, without a smile of contempt. And, indeed, the appeal to Her Majesty in Council is, for all practical purposes, equally unavailing. For in the first place, it is only permitted when the matter in disj)ute exceeds JC500 st^g; and even then, the cause ])ecomes so totally removed out of the coiilroul of tlioso interested, the remedy itself is so ruinously expensive, and requires for its comi)letiou so great a portion of time, that it amounts in ellect to a total denial of justice. Now, Sir, T ask you, can it be considered that a S3'st(un, which renders the primary decision of tlie Court of Queen's Bench, in matters of icss value than :C500, practically conclusive; and which clogs the right of appeal, in matters of greater value, with attendants so cumbrous as to render it available to hardly one in a thousand, — can it be said that such a system is based in wisdom or justice ? For, assuming that (H)urt to be filled with men of the greatest ability, guided in their administration of the law by the purest and most impartial virtue, yet th-^ power to appeal would be no less expedient. How often do we find the judgnieuts of the superior courts in England, (and it may not perhaps be too much, to asv;umo the Judges of those courts at least on a par with our own) — how often do we find ■ 13 judgments even there, reversed in tlie Exchequer Chamber. But laying out ot view the probability of reversal upon appeal; taking it for granted that all the judgments of our court would stand such a test ; (altliough I must candidly confess that such an assumption would bespeak a strange ignorance of the mind of man, and an utter unacquaintance with the nature of those difficulties which legal questions present;) xtill, even on such false hypothesis, the power of calling in question those primary decisions is indispen- sable, in order to the maintenance, by Courts of Justice, of a character for ability and impartiality. Because when suitors, conscious of the integrity of their motives, have further imbibed from their agents strong impressions upon the law of their case ; and when Counsel have, after the most mature deliberation, confirmed such impression by their opinion ; how can it be expected that either the one class or the other, should rest satisfied with judgments, pronounced upon grounds either wholly new, or as they think, plainly fallacious, while they are deprived of all means of bringing such judgment again under discussion? To tell such a suitor that *'the question is upon the record, and he may take it to England," is, as I have shown, little better than a mockery. Such a system can never continue for any 14 I; I?'- great length of time, without the production of a most injurious and paiufully prevalent impression, that there is a want, either of purity or ability in the administration of justice. But althoufjh the rehearinij of causes before Her Majesty in Council, were shown to be a more efficient remedy than I am able to regard it j still the determination in such a manner, so removed from the observation of those inte- rested, would deprive the right of appeal of its great moral effect, which is indeed one of its principal advantages. For, it is to little pur- pose that we render those magistrates, who discharge the important function of adminis- tering the law, independent of the Crown, unless we also subject all their acts to public scrutiny. It is in truth public opinion, brought fairly to bear upon the matter, which has ren- dered the purity and ability of the English bench so eminent j and the principal benefit derived from the act rendering judges inde- pendent of the Crown, is to be found in the free operation thereby given to public opinion j which would otherwise have been much impededyhad those, upon whom it was intended to operate, felt, that notwithstanding the public voice, the continuance or discontinuance of their office, did still depend on the mere will of the Sovereign. Let us reflect upon that disgraceful solicitation of judges in the reign 15 of James I., which has fixed a deeper stain on the memory of Bacon, than even the subse- quent corruption for which he was disgraced. A passage in the life of that great man, which, as it cannot be referred to without t'.ie deepest pain and humiliation, so an adequate idea of its nature, can hardly be conveyed except in his own words. His letter to the King, still extant, is the record of this transaction too lamentably true. I subjoin an extract : — " For " the course your Majesty directeth and com- " mandeth for the feeling of the judges of the " King^s Bench, their several opinions, hy dis- ^^ trihuting ourselves and enjoining secresy ; we " did first find an encounter in the opinion of " my Lord Coke, who seemed to affirm, that " such particular, and as he termed it, auricular ^^ taking of opinions, was not according to the " custom of this realm ^ and seemed to divine "that his brethren would never do it. But " when I replied that it was our duty to pursue "your Majesty's directions, and it were not " amiss for his Lordship to leave his brethren " to their own answers •, it was so concluded. "And his Lordship did desire that I might "confer with himself 5 and Mr Sergeant Mon- " tague was named to speak with Mr. Justice " Cloke \ Mr. Sergeant Crew with Justice " Houghton J and Mr. Solicitor with Justice "Dodderidge. This done, I took my fellows 13 " aside, and ordered that they shoidd presently " speak ivith the three judges, before I could speak " with my Lord Coke for no doubt of infusion ; " and that tlicy sliould not in any case make " any doubt to the judges, as if they mistrusted " they iDoidd not deliver any opinion apart, but *• speak resolutely to them, and only make " their coming to be to know what time they " would bo attended with their papers. This *' sorted not amiss j for Mr. Solicitor came to " nic this evening, and related to me that he " had found Judge Dodderidge very ready to " give an opinion in secret." But the details are too painful j what has been already cited explains the nature of this auricular taking of opinions j by which the law was made for the case 5 and the deep iniquity of PeacUam's conviction, for which the y*ac/5 w ere wrung from an aged minister undergoing the torture, through the instrumentality of the same Crown Officer, is written in characters too indelible, to need any mentic \ of mine, in order to recall it to the memory. When we reflect on those shameful passages in our legal history, (for Peacham's case do'^sby no means stand alone), or turn to the still more disgraceful scenes enacted by a Chief Justice of the same court, in the reign of James II., of which Sir James Macintosh has left us so vivid a picture, we cannot help asking ourselves 17 '4 how the English bench has been purified, and elevated to its present rank ? Can such a change be attributed merely to the Statute rendering the judges independent of the Crown? By no means : for the desire of further promotion, the debasing po>\er of corruption, the undue influence of party or personal feeling, the damning sin of ignorance, may al! operate as powerfully and as bane- fully for the subversion of public justice, where the judges are /