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It is a painful admission, that we must not, and indeed cannot, judge these poems by a Christian standard. Although he had received his primary education from the Roman Catholic clergy who directed the public schools at Dusseldorf under the French occupation, and though he was afterwards formally received into the Lutheran Communion, probably for some political object, Heine never seems seriously to have assumed even the profession of the Christian life. He remained essentially a Jew, and no inconsiderable example of the forms which the Hebrew genius has in modern times assumed. Israel sitting holy under his fig-tree and singing the praise of the invisible God, and exercising mercy and justice amid the bloody and dissolute rites of Babylon and Nineveh and Sidon and Tyre, was the highest image that his mind would contemplate; and in the institution of the Jubilee he finds an apology for the very Socialists whose advent he expects with terror. For him, it is the Jews who preserved the Sacred Writings through the bankruptcy of the Roman Empire; and the Reformers who revealed, and the perfidious British monopolists of commerce, who are diffusing them throughout mankind, are but the unconscious founders of a world-wide Palestine. There is no more earnest passage in the whole of his writings than that in his volume on Börne, where he observes on the embarrassment of the old Greek grammarians who attempted to define, according to recognised notions of art, the beauties of the Bible: Longinus, talking of its 'sublimity,' as æsthetic moderns of its 'simplicity'-'Vain words, vain tests of 'all human judgment. It is God's work, like a tree, like a flower, like the sea, like Man himself, it is the Word of God, that, ' and no more.' We have seen something among ourselves of this enduring sentiment of religious patriotism with interest and not without respect. In Heine it was the saving element of reverence which incurred the wrath of what he calls the High Church of German Infidelity' of Bruno Bauer, of Daumer, and of Feuerbach- who did me too much and too little honour in entitling me their brother in the spirit-of Voltaire.' That he undoubtedly never was; the wit of thoughts preserved him from the tyranny of the wit of words. The humour which abounded within him flowed over the whole surface of nature, and left no place for arid ridicule and barren scorn; it fertilised all it touched with its inherent poetry, and the productive sympathy of mankind manifests itself in the large crop of his imitators who have sprung up, not only in Germany, but other countries. Many a page of modern political satire rests upon a phrase of Heine; many a poem, many a stanza, germinates from a single line of his verses. The forms of wit which he invented

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are used by those who never heard his name, and yet that name already belongs to the literature of Europe. The personal tragedy of his last years adds a solemn chapter to the chronicle of the disasters of genius, and the recollection of the afflictions of the living Shade of the Champs Elysées,' will mitigate the judgment of censorious criticism, and tinge with melancholy associations the brightest and liveliest of his works.

ART. VIII.—1. A Letter to Lord Lyndhurst on the House of Peers in its Judicial Character, as it was and as it is, with proofs and illustrations, and some remarks on Life Peerages. By JOHN FRASER MACQUEEN, Esq. London: 1856. 2. Report from the Select Committee of the House of Lords appointed to inquire whether it is expedient to make any, and if so, what, provision for more effectually securing the efficient exercise of this House as a Court of Appellate Jurisdiction; and further, how any such provision would affect the general character of this House; together with the Minutes of Evidence. May, 1856.


HE legal profession is indebted to Mr. Macqueen, the author of this pamphlet, for an able and learned book on the Jurisdiction and Practice of the House of Lords and the Judicial Committee of the Privy Council, the two supreme appellate tribunals of the empire. This work, following Sir Matthew Hale's admirable Treatise on the Jurisdiction of the Lords' House of 'Parliament,' is the principal modern authority on the judicial powers and duties of the Peers; and its author is therefore peculiarly entitled to be heard in the discussion of the questions relating to the exercise of this appellate jurisdiction which have recently attracted a considerable share of public attention.

The importance of these questions is not rightly to be estimated from their immediate connexion with the life-peerage granted to Lord Wensleydale. Desirable as it is on all hands. admitted to be, that so eminent a lawyer and so accomplished a judge should take his seat in the highest Court of the realm, it is a matter of secondary interest whether the prerogative of the Crown can still be held to extend to the creation of lifepeerages, or whether, by some other form of summons or by legislative provision, a peer not enjoying an hereditary dignity should be called to sit and vote in the House of Lords. The discussion of this case, and the resolution of the House of Lords which has temporarily excluded Lord Wensleydale from the



House as a life-peer only, have at least demonstrated that the power of creating such dignities, with all the rights of the peerage save that of descent, is more doubtful than the legal advisers of Her Majesty appear to have imagined, and there will probably be no inclination to repeat the experiment. The proposal to create four law peers for life under an Act of Parliament rests on totally different grounds, both of principle and of expediency. We shall not therefore pursue this part of the subject, which is, in fact, no more than a collateral issue.

The two questions really at stake are of far greater magnitude. They affect, in the first place, the administration of justice by the highest Court of Appeal of the United Kingdom; and, in the second place, the constitution and judicial character of the House of Lords itself. They bear therefore immediately on two of the first interests of the nation-the one touching the jurisdiction to which all the Courts of Common Law and Equity in England, Scotland, and Ireland are subject; the other, the authority of an integral part of the Constitution itself, representing for judicial purposes the High Court of Parliament.

The constitution of a High Court of Appeal, especially in a country in which a multitude of distinct jurisdictions and of distinct systems of jurisprudence still obtain, is admitted to be one of the most difficult problems in legislation. Perhaps it is from the inherent difficulty of the subject that so little has been done to solve it, for the judicial functions of the House of Lords are rather the growth of precedent and of privilege, than the result of any fixed principle or any deliberate scheme of jurisprudence. In fact, of the three branches of appellate jurisdiction now exercised by the Peers, that of hearing writs of error can alone lay claim to the sanction of remote antiquity. The reception of appeals from Courts of Equity can only be faintly traced from the reign of James I., and may be said to date from that of Charles II. The appeals from Scotland followed the act of Union, but rather by a usurpation of authority than by any legal provision for that purpose. The course of appeals from the Court of Session, in times anterior to the Union, is a subject of great obscurity, and it may be doubted whether any appeal lay from the Scotch judges to the Scotch Parliament. No provision had been made in the Act

* See Hargrave's preface to Sir M. Hale's Treatise, p. cxxxv. †The Scotch Parliament consisted of one Chamber only, in which the three estates of the kingdom sat together. The Lords of Session sometimes occupied a bench between the throne and the table, but

of Union itself for disposing of Scotch appeals, and when the Scotch case of Sir James Gray v. the Duke of Hamilton was heard by Lord Cowper and Lord Somers in 1708, and the sentence of the Lords of Session in North Britain' reversed, it is probable that the subject had not been fully considered, and that no one anticipated the important share which the business of the Scotch Courts would ultimately acquire in the judicial proceedings of the House of Lords.

In truth the appellate jurisdiction of the House of Lords, with the exception of the jurisdiction in writs of error, rests on a very slender basis. It has grown to be what it now is by insensible degrees. No one would have ventured to frame an institution so irregular in form, and so unsatisfactory in principle; but no higher tribute can be paid to the eminent men who have for upwards of a century and a half presided in that tribunal, than the acknowledged fact that their judicial character and the personal weight of their decisions has caused the inherent defects of such a Court of Appeal to be overlooked, or at least to be endured. But the Peers themselves now report that 'there is a great preponderance of opinion in favour of some 'change in the manner in which the appellate business of the 'House of Lords is at present conducted.'

The fact that the whole judicial business of the House has long been exclusively conducted by those members of it who belong to the legal profession, has reduced the judicial pretensions of the Peerage at large to a palpable fiction. The House of Lords is not a Court of Appeal in the sense in which it is a Court of Justice for the trial of high crimes and misdemeanours, for if the slightest attempt were actually made to use the pretended power of the Peerage in appellate decisions, the jurisdiction would be annihilated; and even if this power is still to be exercised in the name of the House, Sir Fitzroy Kelly's remark is not to be gainsayed, 'You must either part with the juris

this Parliament exercised no distinct appellate jurisdiction in civil


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The Lord Advocate stated to the Lords' Committee, that Before 'the Union there was, or at least there was contended for, what was 'called a Protest for Remeid of Law from Judgments of the Court of Session to the Parliament of Scotland, but this was contested by the 'Court of Session during a long period of years. At the Union it 'does not appear that any particular consideration was given to the 'right of appeal, nor does it, even as regards the ancient Parliament "of Scotland, seem to have been exercised in the fashion of an ordi'nary Court of Appeal; it was more a protest to Parliament against 'iniquity than an appeal to another court of law.' (Evidence, p. 80.)

'diction, or you must select the best persons to constitute a 'tribunal.' (Evidence, p. 26.)

Less than a hundred years ago this opinion would have been deemed injurious to the House, and down to a much later period temporal peers of every degree and even bishops did take an active part in affirming or reversing sentences of the regular Courts of Justice. Blackstone, indeed, in a passage which would be taken for irony in any other writer, expressed that blind veneration which the House of Lords, in its judicial capacity, seems to have inspired.

'Our excellent Constitution,' says the learned author of the Commentaries, 'has placed the ultimate appellate jurisdiction in the noble hands of those who, from the independence of their fortune and the dignity of their station, are presumed to employ that leisure, which is the consequence of both, in attaining a more extensive knowledge of the laws than persons of inferior rank; and because the founders of our polity relied upon that delicacy of sentiment so peculiar to noble birth, which, as on the one hand it will prevent either interest or affection from interfering in questions of right, so on the other it will bind a Peer in honour (an obligation which the law considers equal to another man's oath) to be master of those points on which it is his birthright to decide.'

Though we yield to no party in this country in our desire to see the dignity of the House of Lords upheld, its privileges maintained, and its just power felt in the machinery of the Constitution, we hold it to be the height of absurdity and sycophancy to argue that the fortune and dignity of the Peers give them the means of acquiring more extensive knowledge of the laws than persons of inferior rank; that the delicacy of sentiment peculiar to noble birth is a sufficient guarantee for judicial impartiality; or that prelates and nobles become, either by creation or by birth, masters of technical subjects, of which they are notoriously ignorant. Nor can it be said to add to the dignity or consideration of the House of Lords to retain powers which it can only exercise with the assistance of men who have nothing in common with the hereditary peerage.

In a very different spirit, and with excellent good sense, Sir Matthew Hale had remarked in the preceding century:

For though the Lords Spiritual be learned men in their way, and though the Temporal Lords are usually of a noble extraction and generous education, and possibly well acquainted with the methods of government; yet it is impossible they should be skilled in judicial proceedings and matters of law which require great study and experience to fit persons thereunto. And besides many of them are young and unacquainted with business, especially of this nature, many of them may be absent and commit their proxies to others.

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