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APPENDIX.

N° I.

Lord MOUNTMORRES's SPEECH relative to rebearing Caufes.

T

[Referred to in vol. i. p. 155.]

HE fixtieth standing order about rehearing causes being read, as follows:

"No petition which relates to the rehearing " of any cause, or part of a cause, formerly "heard in this house, shall be read the fame

day it is offered; but fhall lie upon the table, " and a future day be appointed for reading "thereof, after twelve of the clock."

The cafe of Magrath verfus lord Muskerry having been decided in favour of the latter, upon a close divifion of five to four, three weeks before, lord Perry contended, that under this order the

cause

cause might be reheard; upon which the author made the following reply:

"WERE I, my lords, to confult my own inclination, I would certainly remain filent upon the present important and arduous question. I fhould be forry, however, were any information which I may accidentally poffefs, loft by my filence; it is, however, but too true, that though I enter once more into the fervice of this house with the fame ardour as before, yet neither my voice nor ftrength are calculated to anfwer laborious difquifitions: an enfeebled body but ill obeys the efforts of an active and laborious mind*.

"It were to be wifhed, my lords, that the learned vifcount had applied his ufual industry to the construction of the fixtieth ftanding order, before he had pronounced that it justified, or even countenanced the doctrine of rehearing a caufe already decided in this house. I pay due regard to the public atteftation; I pay due attention to his late fituation in this country, in which poffibly no man has ever acted with more dignity, or in more difficult times; but I confine myself to the prefent question, without any reference to what is paft. It is, generally speaking,

This paffage alludes to the fpeaker having been wounded in an affair of honour relative to the univerfity of Dublin.

by

by industry and application alone to a given fubject, that one man excels another: and for this we have the teftimony of the greatest luminary that Providence has permitted to appear among men, I mean that of fir Ifaac Newton; who declared, that he was not confcious of any advantage above his fellow-mortals, more than what constant unwearied application to a given fubject, without fuffering his thoughts to be diverted from it, had produced: I fay, this teftimony is fufficient to prove that intuitive knowledge is not allotted

to man.

"But, my lords, we have before us a striking example in the perfon of the noble prefident of this affembly, of what an unwearied attention to his profeffion will effect, fince the noble and learned lord feems, as he advances in years, to advance in knowledge, in brevity, and in perfpicuity.

"The order, my lords, which seems to countenance the doctrine of rehearing a caufe already decided in this houfe, was adopted, together with fourteen other orders, in one thousand seven hundred and feven, from the lords of England: no preceding cafe in our journals can furnish a reason for the adoption. Its origin, and the reafon upon which it is built, must be traced in the records of the lords of England. I fhould not,

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my lords, think myfelf qualified for fuch an investigation, were it not that I am at liberty to mention, that, at the defire of the noble prefident of this affembly, I was led to inform myfelf upon an arduous point which arofe in the Ely caufe, relative to the mode of taking the judges opinions: this difcuffion induced me to traverse the voluminous records of the lords of England, without guide or index; and I speak from notes which I have accurately taken, from the commencement of their journals.

"Two principles I fhall apply to the conftruction of the fixtieth ftanding order: the first, That causes were not originally heard by the lords of England, but by felect committees of that houfe: the fecond, That all judicial matters remain in the fame ftate from one feffion to another; and if interrupted by prorogation or diffolution, are taken up at the point where they were difcontinued. The firft tends to fhew, that rehearing caufes might have anciently prevailed, though it can no longer be juftified: the fecond proves, that the fixtieth order relates to a different proceeding, and by no means juftifies the principle which is countenanced by the noble viscount.

"To many, my lords, I may probably appear to digress into an unneceffary parade of parlia

mentary

mentary knowledge; but if I fhould be honoured with the attention of your lordships, I truft I shall not only prove the principles, but apply and connect them with the question under your lordships confideration.

"The first writ of error that I can trace in the journals of the lords of England, is entered the 25th of February one thousand five hundred and eighty; and in one thousand five hundred and eighty-five the fecond writ of error was brought in by the chief justice fir Christopher Wraye, when the prefent form of their introduction was established.

"I am at a lofs, my lords, to account for the mode in which caufes were decided before that time, unless a curious report of the 1st of May one thousand fix hundred and eighty-nine can throw fome light upon the question. This related to an act of the 14th of Edward the third, and a declaration that it was ftill in force; by that law, according to the opinion of the great antiquarian, Mr. Petyt, who was confulted, five lords were to be appointed to try causes, with the affiftance of the fages of the law. I offer this as a conjecture; but when I compare it with the names of the triers of petitions, which appear in the journals from the commencement, in the firft year of Henry the eighth, where I find those

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