-

P*u*tte

v.\^,^fe..:

CHIEF JUSTICES

OF ENGLAND

CHIEF JUSTICES OF ENGLAND.

JAMES COCKP.OFT &.C0

THE LIVES

THE CHIEF JUSTICES

i

THE LIVES

OF

THE CHIEF JUSTICES

OF

ENGLAND.

LATE JUDGE OF THE HIGH COURT OF BOMBAY, ETC.

VOL. VI.

NEW YORK: GEORGE W. SMITH & CO., LAW PUBLISHERS,

95 NASSAU STREET. 1874-

CONTENTS.

CHAPTER XXIV.

Denman on Norfolk Circuit, Spring Assizes, 1834, I. Raised to the Peer age as Baron Denman of Dovedale, I. Immediate cause of his eleva- tion, I. Correspondence: Lord Gey to Denman, March 19, 1834, 2. Denman to Lord Grey, March 20, 2. Lord Grey's second letter, March 21, 3. Denman's reply, March 22, 3. Correspondence between Brougham and Lady Denman in town, March 22, 4. Denman's letter to his wife from Bury St. Edmunds, March 22, 4. From Norwich, March 23 and 26, 5. Coke of Holkham in his eighty-second year, 5. Denman to his third daughter, " Dear and Honorable Fanny," while waiting to be introduced into the House of Lords, 6. Kindness of his brother judges, 6. Civility of the Peers, 6. Margery Coke at two years, 7. Denman gratified at his peerage, 7. Apprehensions of some of his friends, 7. His want of •wealth and of provident habits rendered the step doubtful, 7. His case an argument for life peerages, 8. His health suffered from the additional work of the House of Lords, 8. Removal from Russell Square to Port- land Place, 8. Extract from letter to Mrs. Wright, written in library of House of Lords, 8. Denman's estimate of his own character and career,

9. How " the King's cheese goes in parings," 9. Political changes in

1834, 9. Resignation of Lord Grey, 9. Of Lord Melbourne and all the Whig ministry, 9. Short dictatorship of the Duke of Wellington, 9. Denman holds the seal of the Chancellor of the Exchequer from Novem- ber 28 to December 10, when Sir Robert Peel is appointed to the office, 9. Note from Duke of Wellington of November 27, 1834, explaining this,

10. Denman's second son, Joseph, appointed by Lord Auckland, just be- fore the Whigs go out, to the " Curlew," 10. First reformed Parliament dissolved, December 20, 1834, 10. New Parliament meets, February 19,

1835, 10. Letter from Guildhall to Mrs. Wright, February 26, 10. Heavy entry, u. Late sittings, n. Destruction of the monster "Arrear," II. Sir F. Pollock to the jury, u. Reception of King and Ministry on Feb- ruary 9, II. Brougham and Lyndhurst in the Lords, n. Unpleasant prospects for Lyndhurst, 12.

^ CONTENTS.

CHAPTER XXV

1834 Changes in the Court of Queen's Bench, 13. Sir John Williams in place of Sir James Parke, 13. Sir John Taylor Coleridge in place of Sir Elias Taunton, 14. Friendship between Denman and Coleridge, 15. Denman on Western Circuit in Summer Assizes of 1834, 15. Letter to Mrs. Baillie, 15. Sydney Smith at Combe Flory, 16. Letter to Lady Denman from Bristol, August 19, 1834, i°. Adventures between Wells and Bristol, 16. Reception at Bristol, 17. Dinner with Sheriff there, 17. 1835 : Oxford Circuit, Summer Assizes of 1835, 18. Letter to Lady Denman from Oxford, July 21, 1855, 18. The Dons and Dr. Buckland, 18. To same from Worcester, 18. Dinner with R. Croft in Exeter Col- lege Hall, 18. Blenheim, 19. To same from Gloucester, August 16, 19. The Wye, Ross, Goodrich Castle, 20. Tintern Abbey, 20. The Wynd- cliffe, 20. Entry into Gloucester on a market night, 20. " God bless Lord Denman," 20. Reason for inserting such letters as the above, 20. Enforced leisure on circuit, 20. Maccaronic Latin Lines on Tindal, C. J., and the pig, 21. Denman ex-officio Speaker of the House of Lords, 22. Short Speech on Brougham's Education resolutions of May 21, 1835, 22. Exe- cution of Wills Act, 23. Personal discussion between Denman and Lyndhurst as to Lyndhurst's desertion of his old political principles, Au- gust 27, 1835, 23. Sitting of Parliament protracted till September 10, 25. Letter to Mrs. Baillie from Middleton, September 19, 25. Literary and other amusements of the Long Vacation there, 26. Joanna Baillie's dramas, 26. Ben Jonson's " Alchemist," 26. 1836 : Letter from London to Lady Denman, January 19, 1836, 27. Legal Gossip, 27. Lady Strath- eden, 27. Lord Cottenham, Chancellor, 27. Lord Abinger on his daugh- ter's elevation to the peerage, 27. A visit to Jekyll (set. 82), 27. Sir John Campbell and Lady Stratheden at Holland House, 28. " Henriquez " at Covent Garden, 28. Acknowledgment of birth-day present from Mrs. Baillie, February 21, 1836, 28. Parliament : Opinion in favor of abolish- ing Courts Palatine, June 10, 29. Last discussion of Prisoner's Counsel Bill, June 23, 29. South Wales Circuit, Summer Assizes of 1836, 29. Letter to Lady Denman, July 29, from Haverford West, 29. Pembroke coast, 29. Milford Haven, 30. " Elligoy Stack," 30. To same, August 7, from Brecon, 30. Remmiseence of walking-tour with Shadwell in 1797. 30. First letter to Mr. Justice Coleridge, Chester, August 15. 31. Wrong convictions, 31. Need of Prisoner's Counsel Bill, 31. Question as to appointing his third son, Richard, Clerk of Assize for South Wales Circuit, 32. Letter to same from Middleton, August 23, 1836, 32. Ref- erence to Coleridge's severe work on the Northern Circuit, 32. Good advice to a hard-worked judge, 32. " Discard all anxiety," 32. Invita- tion to Middleton, 32. Denman's interest in American jurisprudence,

CONTENTS. vii

33. Letter of July 17, 1836, to Mr. B. Rand, Advocate, Boston (U. S.), 33. Vacation letter to Mrs. Baillie, describing visit to Chatsworth, 34.

CHAPTER XXVI.

Denman's conflict with the House of Commons from 1837 to 1840, 36. Case of Stockdale v. Hansard, 36. MS. fragment relating to it, 36. Mode in which the matter will here be dealt with, 36. House of Commons' Reso- lutions as to publishing printed papers, &c., 1835, 37. Prison Inspectors' Report, reflecting on Stockdale, published in 1836, 37. Stockdale's first action for libel against the Messrs. Hansard, commenced November 7, 1836, 37. The defense on the record, 38. Trial before Lord Denman, February 7, 1837, 38. Direction of Lord Denman to the jury on the plea of privilege, as reported in the "Times" of February 8, 1837; as stated by Lord Denman in the MS. fragment ; in his speech in the House of Lords on April 6, 1840, 38. Reasons of Lord Denman's resentment against Lord Campbell as counsel for the defense in Stockdale v. Han- sard, &c., 41. Indignation of the House of Commons against Lord Den- man, 41. Appointment of a committee, 41. Report of committee, May 8, 1837,41. Resolutions of House, May 31, 1837, 42. Lord Denman's " Observations on the Report of May 8," 42. Stockdale brings a second action, 43. Plea of privilege the only plea put in, 43. Demurrer to the plea, 43. Argument on the demurrer, Trinity Term, 1839, 44. Judg- ment of Lord Denman (and the Court of Queen's Bench) on the demur- rer, May 31, 1839, 44. Remarks on Lord Denman's judgment : the prin- ciple and the precedent, 46. He publishes, from a MS. revised by Lord Holt, the great judgment in Ashby v. White, 46. Extract from introduc- tion to this publication, 46. Lord Denman's high estimate of Lord Holt, 48. Damages in second action assessed at j£ioo, 49. Stockdale, in the autumn of 1839, brings a third action, to which there is no plea, and judgment accordingly passes by default, 49. Damages and costs assessed at £640, and levied, 49. Sheriff ruled to pay over the amount to Stock- dale, 49. Parliament meets on January 16, 1840, 49. Stockdale ami Sheriffs ordered to be called to the bar, 50. Stockdale committed to Newgate on January 17, 50. Sheriffs to custody of Sergeant-at-Ai ms on 2ist, 50. On 24th they sue out their writ of Habeas Corpus, 50. On 25th are brought up in custody before the Court of Queench's Bench, 51. Being, on the face of the return, committed for contempt, the Court of Queen's Bench can not interfere, and they are remitted to custody, 51. That Court, in the Habeas Corpus case, reaffirms its judgment in Stock- dale v. Hansard, 51. Account from "Annual Register," of the appear- ance of the Sheriffs before the Court of Queen's Bench, 52. Feeling of the public and the Bar in their favor, 52. Their imprisonment, 53. Its

viii CONTENTS.

duration 53. Stockdale, while in Newgate, brings a fourth and then a fifth action, 53. His attorney, attorney's son, and attorney's clerk are committed to Newgate, 53. Public feeling strongly excited against the House of Commons, 54. On March 5, Lord John Russell brings in the "Printed Papers Bill," 54. The Solicitor General (Wilde) protests against this as a surrender of principle, 54. The Bill, in fact, a compro- mise, 55. Bill passes the Commons, 55. Second reading in Lords on April 6, 1840, 55. Lord Denman's admirable speech on second reading, 55. Duke of Wellington's objections to Bill, 56. It passes and receives Royal assent on April 10, 56. Release of the prisoners in contempt, 56. Lord Denman's conduct in the question wins him high public esteem, 56. Letter of " Civilis," 57. Discussion of Stockdale v. Hansard in House of Lords, March 20, 1843,57. Opinion of Westminster Hall in favor of the judgment, 57. The "Printed Papers Act" not a Parliamentary reversal of it, 58. Speeches in this debate of Lord Campbell, Lord Denman, Lord Abinger, and the Duke of Wellington, 58. Two letters arising out of Stockdale v. Hansard : one from Denman to Lord Commissioner Adam (on Muir's case), August 27, 1838, 60. The other from Denman to the Duke of Wellington on " Printed Papers Bill," March 29, 1840, 6l.

CHAPTER XXVI I .

1837 : Death of William IV. and accession of Queen Victoria, June 20, 1837, 63. Parliament : Abolition of death punishment for forgery, July 14, 1837, 63. Of arrest on mesne process, December 3, 1837, 64. Let- ter from Lord Denman of August 4, 1837, to his daughters, describing a dinner at Buckingham Palace, 64. Letter to Mrs. Baillie from Middle- ton, October 20, 1837, 66. Vacation readings, 66. Letter to Coleridge, from Guildhall, December 15, 1837, 66. Sir J. Awdry, 67. Wordsworth, 67. Creswell, 67. 1838 : Marriage of Denman's second daughter with his old friend Hodgson, then vicar of Bakewell and Edensor, and Arch- deacon of Derbyshire, 6S> Hodgson's great social talents, 68. Intimacy with the sixth Duke of Devonshire, 68. Denman from Western Circuit, March 21, 1838, to Hodgson on the projected marriage, 69. To his second daughter on same subject, March 26, 1838, 69. Honeymoon letter to the newly-married couple, from Guildhall, May 24, 1838, describing a dinner at Lord Clarendon's, 69. Lord Grey out of humor at having to carve roast pig, 70. Lord Holland's amused good nature, 70. Lord Grey can not read "Pickwick," 70. Anecdotes by Rogers of Fox, 70. A hard choice for Wilberforce, 70. A horse cause at Guildhall ; the ostler's widow, 71. Denman at Strathfieldsaye in Spring Assizes of 1838, 71. Parliament : Substitution of Affirmations for Oaths Bill first brought for- ward by Denman, June 15, 1838, 72. Rejected by thirty-two to sixteen, 72. Legal reform, enabling the Common Law Courts to sit in Bane out

CONTENTS. ix

of term, 73. Importance attached to it by Denman, 73. Vacation letters from Middleton, to Coleridge, September 27, 1838, 73. To Mrs. Baillie, October 25, 1838, 73. Denman takes his son George to Cambridge, 74. Brilliant University career of Hon. George Denman, 74. Notice of Brougham's '' Characters," &c., 75. His disparagement of Fox, 75. Ma- caulay's paper in the "Edinburgh" on Sir W. Temple, 75. 1839: Par- liament : "Custody of Infants Bill," July 10, 76. Denman on Home Cir- cuit with Chief Justice Tindal ; Summer Assizes, 1839, 76. Legacy of ,£10,000 to his unmarried daughters from old Sir Francis Drake, 77. Denman's first speech in the House of Lords on the Slave Trade, Au- gust 15, 1839, 77- Its great success, 77. His account of it in letters to Lady Denman of August 15 and 16, 79. A sketch from the Old Bailey, 79. Trial of two little girls for picking pockets, 80. Line of encourage- ment to his son George at Cambridge, September, 1839, 80. 1840: Par- liament : Petty slander actions, costs not to exceed damages, February 17, 1840, 81. Admission that more Chancery judges are wanted, June I,

1840, 81. Hodgson up for the Provostship of Eton, 81. Denman's letter of April 8, 1840, on the complications attending the elections, 81. Hodg- son finally elected Provost (Regincz auxilio), 82. Letter to Mrs. Hodgson on economy, 83. Summer Assizes of 1846 ; North Wales Circuit, 83. The Chief Justice, in the Sheriff's coach, enters Newtown at a gallop, 84. Letter from Ruthin to Lady Denman, describing Hollyhead and Bangor, 84. The fall of the Ligwy, 85. The South Stack Lighthouse, 85. Let- ter to Merrivale from Middleton, no longer "stony," but "woody," 86. Letter to Mrs. Baillie, August 16, 1840, 86. His son Lewis's sketches,

86. Denman's liking for old ladies, 86. His son Richard about to marry,

87. His son George reading eleven hours a day, 87. Letter to Coleridge, October n, 1840, 87. Literary leisure, 87. Jokes on Patteson among the partridges, 87. Arnold's notion of Modern Rome as a palimpsest, 87. Judge Story's approval of the judgment in Stockdale v. Hansard, 88.

CHAPTER XXVIII.

1841 : Changes in Court of Queen's Bench, 89. Littledale retires and Wightman takes his place, Hilary Term, 1841, 89, Trial of Lord Car- digan before the Peers, February 16, 1841, for wounding Captain Harvey Tuckett in a duel, 90. Denman, Lord High Steward, 90. Remarks on the break-down of the case, 92. Case of Lord Waldegrave, March 29,

1841, 93. News reaches England, in March, 1841, of the destruction of the Barracoons (slave warehouses), by Captain Denman, on the Gallinas River, in the previous November, 93. Denman's pride at the Captain's proceedings, 94 Writes and sends account of it to his sons, George and Lewis, at Cambridge, 94. Lord Palmerston and Lord John Russell, then respectively Foreign and Colonial Ministers, approve Captain Denman's

c CONTENTS.

proceedings in letters to Admiralty of April 6 and 7, 1841, 95. Lord Aberdeen's mischievous letter when Foreign Minister, of a year's later date, 96. Powell Buxton to Denman, March 18, 1841, 97. Venerable Thomas Clarkson to same, March 29, 1841, 97. Letter from Charles Sumner to Denman, regarding Judge Story, who sends copy of his work on the " Conflict of Laws," 99. Denman presides at the four hundredth anniversary dinner of Eton College, 99. Letter to Denman on this from the great Marquis of Wellesley, May 22, 1841, TOO. Trial before Denman, of Moxon, for publishing Shelley's " Queen Mab," 101. Dissolution of Parliament, June 23, 1841, 102. Resignation of Lord Melbourne, August 30, 1841, and accession to power of Sir Robert Peel, 102. 1842 : Com- pliment by Denman in Parliament to the great American jurists, February 14, 1842, 102. Chancellor Kent sends Denman copy of fourth edition of his " Commentaries," 103. Denman, on March 8, 1842, moves his Evidence Act, abolishing incompetency from interest, 104. Letter of Denman, April 5, 1842, to his fourth daughter, Margaret, on her then re- cent marriage with Mr. H. W. Macaulay, 105. Denman persuades Hal- lam to take the chair at the Eton dinner for 1842, 105. Hallam's letter on the subject, May 9, 1842, 106. Denman, a second time, introduces an Affirmations for Oaths Bill, 107. His excellent speech of June 27, 1842, 107. Note from Sydney Smith acknowledging a copy of this speech, 107. Summer Assizes of 1842, 108. Denman and Maule at York, 108. Chart- ist prisoners, 108. Government offer a special commission, 108. Den- man and Maule decline it, and proceed at once to try all the prisoners, 109. Great benefit to the country of their doing so, no. Denman's letters from York, no. To Lady Denman, August 15, 1842,110. To same, August 21, no. Sydney Smith and the whitlow, in. Same date to his third daughter, Fanny, in. Tumults subsiding, in. Duke of Cambridge at the Minster, ill. Dean Cockbum's anti-Tractarian ser- mon, ill. To Lady Denman, August 22, 112. Duke of Cambridge full of questions, 112. Writing answers to "expected addresses," 112. Sir Charles Anderson in from Bedale, 113. To Lady Denman, August 27, 114. Assizes protracted into September, 114. Once more at Middle- ton, 114. His sisters, Mrs. Baillie and Lady Croft, pay their long- promised visit there, 114. Letter to Hodgson, October 18, 1842, on funeral of the great Marquis of Wellesley, 115.

CHAPTER XXIX

Denman's intercourse with men of letters, 117. Rogers and Sydney Smith, 117. Talfourd and Charles Dickens, 117. Denman at Talfourd's " Ion," 117. References to Denman in Mr. Forster's " Life of Dickens," 117. Dr. Samuel Warren, Q.C., 118. Note from Sydney Smith to Den- man regarding Lady Holland, 1 1 8. 1843: Parliamentary Session, 119.

CONTENTS. xi

Slave Trade, speech on, 119. Lord Aberdeen's letter, April 7, 1843, 120. Denrnan stands up for the right of " Prevention," 120. Reference to his son's exploit at the Gallinas, 121. Lord Aberdeen explains away his let- ter, and eulogizes Captain Denman, 121. Denman explains his views as to Slave Trade suppression, April II, 1843, 122. On Norfolk Circuit for Summer Assizes of 1843, I22- Duke of Buckingham's banquet to the Judges at Stowe, 122. Denman's judgment in the House of Lords in the Queen v. Millis (marriage laws), 123. The Law Lords equally divided, 123. Concluding passage in Denman's judgment, 124. 1844 ; Denman on Home Circuit, Spring Assizes, 1844, 125. Letter from Maidstone to Coleridge, March 12, 1844, 125. Dowling, Sergeant, to a Kentish com- mon jury in a seduction case, 125. Death sentence pronounced in Louisiana for aiding the escape of a slave, 126. Denman brings this sentence to the notice of the House of Lords, March 18, 1844, 126. Death of Denman's old and intimate friend, John Herman Merivale, April 25, 1844, 126. Parliament: Ecclesiastical and Diocesan Courts, April I, 1844, 127. Consolidation of Criminal Law, May 13, 1844, 127. Abolition of imprisonment for debt, June 21, 1844, 128. Opening of Mazzini's letters at the Post Office under warrant from Secretary of State, 128. Denman's indignant speech, June 17, 1844, 128. His speech on June 25 for defining and strictly limiting the privilege, 129. Denman on Midland Circuit, Summer Assizes of 1,844, I29- Letter to Lady Den- man, begun at Leicester and ended at Coventry, 129. The Judge's hat left behind, 129. Ride over the Leicestershire country, 130. Coventry, 130. Lord Leigh, 130. Visit to Saxby Church, 130. Long Vacation of 1844, 130. Letter to Coleridge, August 13, 1844, 130. Reference to the case of O'Connell, then pending in the House of Lords, 130. Denman's judgment in course of formation, 131. His researches in the "Year Books," 131. His regret at the retirement of Mr. Justice Erskine, 132. Letter to same, 132. Literary Gossip, 132. Personal unity and poetical greatness of Homer, 132. Lord Nugent, 132. " Burke's Correspond- ence," 182. Lives of Lord Malmesbury, and of W. Taylor, 132^ Guizot and his lectures on European civilization, 132. His opinion as to the impossibility of war with France, 133. Letter to Mrs. Hodgson, October 20, 1844, on Louis Phillippe's visit to Windsor Castle, 133. Royal mis- takes as to Denman's identity, 133. Thanks to the Hodgsons for their congratulations on his fortieth wedding-day, 133. Birthday verses of 1844 from Lady Denman to her husband, and his reply, 135. Continued felicity of their union, 135.

CHAPTER XXX.

Oeneral character of Denman's judgment in O'Connell's case, 136. Sketch of previous history of the case, 136. The two principal objections in the

ii CONTENTS.

House of Lords : first, that the jury list was imperfect ; second, that ver- dict and judgment were given generally on all the counts of the indict- ment, some of them being bad, 137. The Judges unanimous against the first objection, 137. Six to two against the second objection, 138. Judg- ment of Lords on September 4, 1844, 138. Lyndhurst and Brougham against the objections, 138. Denman, Cottenham, and Campbell in favor of the objections, 138. So the sentence was quashed, and O'Con- nell discharged, 138. Analysis of Denman's judgment, 138. Key-note struck in the opening sentences, 138. The famous words " A mockery, a delusion, and a snare," 139. Argument on the first objection, as to the jury list, 139. Ground on which the Judges had held that there could be no challenge to the array, 139. Denman's answer to this view, 139. True principle of challenge to the array, 140. A grievous -wrong admit- ted, yet no remedy, if challenge to the array excluded, 140. The absence of all other remedy shows that the old remedy of challenge to the array must exist, 142. Argument on the second point, viz., that a general judgment on an indictment containing many counts, some being bad, can'not be supported, 142. This objection shown to be not purely techni- cal, 142. Condemnation of long, unintelligible indictments, 142. Judg- ment of the House of Lords on this point has ever since been followed in the administration of the Criminal Law, 143. Mr. (now Sir) Barnes Peacock raised and principally argued this point, 143- Impression pro- duced on the public by Denman's judgment, 143. Testimony by the Press as to its admirable delivery, 143. Action of the speaker, 144. Fact communicated by Mr. Justice Denman, 144. Estimate by the " Morning Chronicle" of the lasting value of the judgment, 144. Letter to Denman on the judgment, from his old friend Shadsvell, V.C., Septem- ber 7, 1844, 145. From Empson, September 15, 146. Effect in Ireland, of the judgment, 146. Letters from Denman to various persons on the judgment, 146. To his brother-in-law, Rev. J. Vevers, 147. To Col- eridge, September 20, 1844, describing what took place in the House of Lords, and elsewhere, previous to and at the time of the delivery of the- judgment, 147. Parke's judgment on the second objection ascribed to disappointment in not having been made Chief Baron on Lord Abinger's death, 148. Indignation of Denman at this base and baseless insinua- tion, 149. Tribute to Parke, 149. Another account by Denman of the private history of the judgment, in a letter to his son-in-law, H. W. Macaulay, 149. Denman did not make up his mind on the second ob- jection till the last moment, 150. The Lay Lords wished to vote on the question, 150. Results if the Lay Lords had swamped the Law Lords,, 151. This scandal averted by the Duke of Wellington, 151.

CONTENTS. xiii

CHAPTER XXXI.

1845 : Parliament, 152. Renewed discussion on opening letters at Post Office, May 30, 1845, 152. Lord Radnor's bill, 152. Denman's speech on second reading, 152. Contrast between Cromwell, under whom the practice originated, and the Duke of Wellington, 154. Earnest appeal to the Duke, 154. Lord Radnor's bill rejected by fifty-five to nine, 154. Denman and other Peers protest, 154. Discretionary power to Judges to mitigate penalties affixed by statute, July 3, 1845, 154. Death of Den- man's sister, Mrs. Baillie, at Hampstead, August 5, 1845, 155. Letter on her illness to Lady Denman from Hereford, on Oxford Circuit, 155. Den- man reaches town from circuit too late to be present at her death, 155. Letter on it from London to Lady Denman, August 7, 1845, 155. Agnes and Joanna Baillie, 155. Character of Mrs. Baillie, 155. Life-long at- tachment and correspondence between the brother and sister, 156. Den- man, in the Lords, takes no part in party or purely political discussions, 156. Disapproves of Lord John Russell's Corn Law Repeal Letter of November 22, 1845, 156. His views on the short ministerial crisis of De- cember, 1845, 156. Letters on these matters to Captain Denman of De- cember 15 and 25, 157. Slave Trade: Decision of the Court of Criminal Appeal in the case of the Feliddade, December II, 1845, 158. Facts of the case, 158. Arguments and judgment, 158. Eleven Judges to two, the two being Lord Denman and Baron Platt, 158. Denman's short judgment, 159. Apparent ground of the judgment of the majority, 159. Ground of Denman's judgment, 160. The decision very grievous to Denman from its apprehended effects on the Slave Trade, 160. He draws up a paper for the reform of the Court of Criminal Appeal, 160. Letter to Captain Denman on the Felicidade case, December 12, 1845,

160. To same on same subject, December 25, 161. Reasons transmitted to the Home Office for dissenting from the judgment of the majority,

161. 1846: Letter to Coleridge of May 21, 1846, 162. Advice against retirement, 163. Want of wealth no subject of regret, 163. The struggle of Corn Law Abolition, 163. Peel's resignation, June 29, 1846, 163. Letter to Captain Denman on it, June 30, 163. Marriage of his third daughter to Captain (afterwards Admiral Sir R. L.) Baynes, 164. Den- man on North Wales Circuit, Summer Assizes of 1846, 164. Letter from Dolgelly to Lady Denman, July 18, 1846, 164. Reference to Rajah Brooke's dealings with the Malay pirates, 164. Debate on salaries of Chief Justices in the Lords, July 14, 1846, 165. Letter on it to Coleridge from Holyhead, July 25, 1846, 165. Facts as to his own acceptance of .£8,000 a year, instead of _^io,ooo, 165. Denunciation of the new Whig ministry for pressing forward the Sugar Duties Bill, 166. Marriage of his last unmarried daughter, 166. Opinion of grandchildren, 166. Let- ter to Captain Denman from Chester, August 2, 1846, 167. Generous

*iv CONTENTS.

tribute to Brougham, 167. Denman's own view and position as to Slave Trade, 167. His low opinion of the new ministry, 167. Letter to Lady Denman from Chester, August 3, 1846, 167. The Government Sugar Du- ties Bill of 1846, 168. Lord Clarendon's speech, 168. Lord Denman's speech, 168. The Government bill, pressed hastily through Parliament, becomes law before the end of the session, 170. Letter of Denman, from Middleton, to his daughter, Lady Baynes, September 17, 1846, 170. Death of Sir John Williams, on September 16, much felt by Denman, 170. Sir William Erie succeeds him as Judge of the Queen's Bench, 171. Character and subsequent career of Mr. Justice Erie, 171. Denman's high esteem and regard for him, 171.

CHAPTER XXXII.

1847: Abolition of Montem at Eton, 172. Letter on it to Hodgson from Hertford, March 4, 1847, 172. Speech against abolition of Transporta- tion in House of Lords, March 5, 1847, 173. Its deterrent efficacy as a sentence, and other advantages, 173. Denman, as a Criminal Judge, did his best to make sentences of transportation deterrent, 174. An instance of this, 174. Second letter to Hodgson on abolition of Montem, Chelms- ford, March 7, 1847, 175. Montem abolished, 175. Testimony of an old Etonian as to its abuses, 175. Third letter to Hodgson, at Brighton, on Montem, 176. Railways near Eton, 176. Slough and Windsor branch, 176. Denman on Home Circuit, Spring Assizes, 1847, 177. Letter to Lady Denman from Leeds Castle, March 21, 1847, 177. The "Joinville" panic, 177. Fears of attack by a French fleet, 177. Captain Denman wants to write a pamphlet on it, 177. His father dissuades him in letter of April 14, 1847, 178. Improbability of any attack from France, 178. The shopkeeper spirit in both countries too strong for war, 179. Den- man on Midland Circuit, Summer Assizes of 1847, 179. Letter to Col- eridge from Middleton after conclusion of circuit, 179. Mode of conduct- ing criminal business on circuit, 179. Bar grown to be more a state of transition than a status, 180. Dislike of patronage (revising barrister- ships, &c.) vested in Judges, 180. Reference to recent general election,

180. Regrets defeat of Macaulay and Roebuck, 180. Long Vacation,

181. Wood-cutting and thinning at Middleton, 181.

CHAPTER XXXIII.

1848 : This year an eventful one for Denman, 182. His great and growing excitement about the Slave Trade, 182. Distress at the increasing indif- ference to its horrors, 182. His earnestness upon it a life and death earnestness, 182. Trial at Bar of Buron v. Denman, 183. Judgment of the Court, February 16, 1848, 183. Denman's remarks upon it in the House of Lords, February 22, 1848, 184. The case of Dr. Hampden as

CONTENTS. xv

Bishop-elect of Hereford, 184. Application for mandamus to compel Archbishop to hear opposers, 184. Statement of the case, 184. Ante- cedents of Dr. Hampden, 185. Remonstrance of the thirteen bishops, 185. Lord John Russell's reply, 185. Cong6 d'Elire and Letters Missive, December 16, 1847, 186. Election, December 28, 186. Confirmation by the Archbishop fixed for January II, 1848, 187. Proceedings at the con- firmation— Refusal to let opposers appear, 187. Application to Court of Queen's Bench for a mandamus, January 14, 187. Four days' argument, 187. Judgment on February I, 1848, 187. Court equally divided, Pat- teson and Coleridge for, Denman and Erie against, the application, 187. So the rule was discharged, 187. Judgment of Lord Denman, 187. He repels reflections on Cranmer, 188. Comments on farcical nature of the forms both at election and confirmation, 189. Grounds his judgment on this, that as a matter of fact opposers never have been heard since Act 25 of Henry VIII. was passed, 189. Mandamus refused from regard, amongst oilier things, to the peace of the Church, 190. Bishop Phillpotts in the Lords presents petition against the penalties of prsemunire as in- curred in election and confirmation of bishops, and remarks on the recent judgment of the Queen's Bench, February 15, 1848, 191. Speech of Lord Denman, 192. He explains the ground o bis judgment, and, as to the penalties of prasmunire, suggests that bishops in England, a:; in Ireland, should be appointed directly by the Crown, 192. Letter to Hodgson, February 19, 1848, on Bishop Hampden's case, and on Huron v. Denman, 194. Speech on the Slave Trade and the Squadron, on Lord Aberdeen's motion for returns, February 22, 1848, 195. Slave Trade by the law of nations ipso facto piracy, 196. Reference to the case of Buron v. Den- ma>i, 196. French Revolution of February 24, 1848, 196. Denman neither sanguine nor alarmed, 196. Remarks on Government Bill for Removal of Aliens, April 13, 1848, 197. On "Crown and Government Security Bill," April 19, 1848, 197. Defends the English people from the charge " of a growing contempt for the law," 197. Pays a tribute to the great demonstration of April 8, 198. Letter from Mr. William Kent re- garding his late father, the venerable Chancellor Kent, 198. Hutt's Com- mittee sets men's minds against the West African Squadron, 199. Den- man's excitement on the subject, 199. Letter to Captain Denman from Leicester, (Midland Circuit) on it, July 29, 1848, 199. To same on same subject from Coventry, August 2, 200. Denman's two great speeches of August 22 and 28, on the evidence taken by Hutt's committee, 200. Let- ter written to Lady Denman from the House of Lords, 201. Comments on Dr. Cliffe's evidence, " Remove the dogs ! " and on that of British offi- cers opposed to squadron, 203. Repels the charge of calumny, 204. Dr, Cliffe again, 205. These two speeches save the Squadron, 205. Publishes " Letter to Lord Brougham on the final extinction of the Slave Trade," 206. Apology for strong language on the subject, 206.

xri CONTENTS.

CHAPTER XXXIV.

' <49 : Denman on Western Circuit with Sir E. Vaughan Williams, Spring Assizes of 1849, 207. Heavy business and failing health, 207. Recep- tion at Strathfieldsaye, 208. Letter to Lady Denman, March n, 208. The Duke's cordial hospitality, 209. Recollections of his conversation, 209. Letter of Sir E. V. Williams, 209. Party to meet the Judges, 209. Sir E. V. Williams " Boswellizes " the Duke, 209. Topics of table talk,

209. Macaulay's History, 209. Double missions at foreign courts, 210. Bourke, Swedish Envoy at Madrid, 210. The Copenhagen expedition,

210. French spy system, 210. State of France in 1849, 2I°- Louis Na- poleon, 210. Fusion of the two Bourbon branches, 211. Madame de Stael, 2ir. Bishop Phillpotts, 211. The breakfast, 212. The Duke's new daughter, Jenny Lind, 212. Marchioness of Ely, 212. The Duke and Jenny Lind in the Park, 212. The Duke's rule as to passing ladies on horseback, 212. Jenny Lind declines the Duke's assistance, 212. Den- man's remark on this, 212. Last meet of hounds for the season at Strath- fieldsaye, 213. The Judges at Salisbury miss the Sheriff, 213. Letter to Lady Denman, 213. A window in Salisbury Cathedral, 213. To same, 213. Patteson's and Coleridge's country houses, March 18, 1849, 213. To same from Boconnor, near Bodmin, old seat of Sir Bevil Grenville, March 25, 214. To same from Taunton, April i, 214. Drive with Mr. and Lady Louisa Fortescue. 214. The Queen's Bench in the woods, 214. The South Devon Railway, 214. Sir. Thomas Acland's, at Killerton, 215. The castle at Taunton, 215. Last letter from circuit, 215. Handwriting of these letters very shaky, 215. On April 14, after returning to town, Denman has a first stroke of paralysis. 215. Partially recovers, 215. Sits in Queen's Bench during Trinity Term, 1849, 215. Takes chamber busi- ness in London, 215. Staying at Hampstead with Captain and Mrs. Hol- land, 216. On July 21 has a second stroke of paralysis, 216. Between the first and second strokes speaks twice in House of Lords, 216. On June 13 on the Slave Trade, 216. On June 22 brings on, for the third time, an Affirmation instead of Oaths Bill, 217. Rejected by thirty-four to ten, 217. Law as to objections to oaths, on religious grounds, altered by Common Law Act of 1854, 217. As to objections on other grounds it still needs alteration, 217. Denman moved from London to Middleton, August 22, 1849, 218. Letter to Coleridge dictated from Hampstead, August 7, 1849, 218. To same from Middleton, also dictated, October I, 1849, 219. Fasts for cholera, 219. Patteson's ball, 219. Patteson and the partridges, 220. Denman's view of his own case, scrawled by him- self in Greek, 220. Letter to Coleridge, dictated, October 29, 220. Sir B. Brodie's opinion of Denman's state in October, 221. Kind exertions of his brother Judges, 221. Court sits without him all Michaelmas Term, 222. Judges consult Brodie and Holland as to possibility of Denman's

CONTENTS. xvii

resuming work. 222. Brougham writes from Cannes, December 18, 1849, strongly urging resignation, 223. Brodie and Holland, on Christmas Day, 1849, concur in advising resignation, 224. Denman wishes further con- sultation, 225. Letter to Denman from Wightman, December 31, 1849, 225. High tide, 226. Philosophers at fault, 226. Nose and knees over the fire with Hannah More's " Memoirs," 226. 1850: Denman returns to town and consults Dr. Watson, 226. Decisive opinion of Dr. Watson, January 22, 1850, 226. Denman determines to resign, 227. Winds up all outstanding judicial business, and on February 28, 1850, sends in his formal resignation, 228. Previous correspondence with Lord John Russell as to his successor elect, Lord Campbell, 228. Grounds of Denman's resent- ment against Campbell, 228. Letter of Lord John Russell, of January 29,1850,229. Observations on Denman's protest and Campbell's ap pointment, 230.

CHAPTER XXXV.

Undivided homage paid to Denman on his retirement, 232. Selected ad- dresses to him, 232. From Attorney-General, as representing the Bar March I, 1850, 232. Reply of Lord Denman, 234. Address from gen- tlemen of Derbyshire, March 21, 234. Reply, containing reference to Dr. Denman, 235. Address from Common Council of City of London, 236. Extract from reply, 237. Resolution of Mayor and Aldermen, 238. Reply, with reference to Lord Holt and the Privilege question, 238. Let- ter from Judges of Queen's Bench, April 15, 1850, and reply, 239. Let- ter of Mr. Baron Parke, from Midland Circuit, March 12, 1850, 241. Same day from Mr. Justice Talfourd, from Salisbury, with a sonnet, 242. Denman's reply, 243. Extract of Letter from Wightma.n on Norfolk Circuit, April 7, 1850, 244. From Mr. John Leycester Adolphus, reporter of Queen's Bench, April 23, 1850, 244. From Ed\var.d Everett (late United States Minister in England), May 14, 1850, 246. Reply, 246. Denman leaves London for Middleton, 247. His health improves, 247. Verses to his wife on forty-sixth anniversary of their wedding, 247. Letter to Coleridge, from Middleton, September 2, 1850, 248. Wilde's appointment as Chancellor, 248. Death of Shadwell, V. C., 248. Ex- tension of County Court's jurisdiction to .£50, 249. Letter to Coleridge, December 17, 1850, 249. Rolfea"nice little Peer," 250. Opinion of Parke and his crotchets, 250. Denman's difficulty of writing continues, 250. Letter to his little grandson, Henry Denman Macaulay, as to " Right " and " Write," Christmas Day, 1850, 251.

CHAPTER XXXVI.

Denman's health improved in 1851 and 1852, 252. Writes on questions of Law Amendment — "Brougham's" Act of 1851, enabling parties to it. — 2

xviii CONTENTS.

suits to give evidence, 252. Denman s able letter in the " Law Review," of April 21, 1851, on this measure, 252. His remarks in it on the habit- ual opposition of Judges to changes in the Law, 253. Principle of ex- clusion of evidence from interest unsound, 254. Letters to the Lord Chancellor on Law Reform, 256. 1852 : Denman's last speech in the House of Lords (May 27, 1852) on Law Reform, and in praise of the Common Law Procedure Commissioners, 256. Correspondence with Brougham on Law Reform and other matters, in 1851 and 1852, 257. General character of Brougham's letters of this period, 257. Brougham to Denman, from Walmer Castle, June, 1851, 258. High regard of the Duke of Wellington for Denman, 258. Letters of Brougham, from Cannes, December 8th and 23rd, 1851, 258. On the Coup d'Etat of January 13, 1852, 259. On Louis Napoleon's position and plans, 259. Lord Palmerston's dismissal in 1851, 259. How received on the Conti- nent, 260. Brougham from Boulogne, January 28, 1852, on the state of France, 260. Lord John Russell resigns, February 20, 1852, 260. Brougham's letter on state of parties, and on the character of Lord Derby, 261.

CHAPTER XXXVI I.

Death of Lady Denman on June 28, 1852, 262. Denman's account of her last moments, 262. His inscription over her grave in Dagenham Church- yard, 263. He goes with his third son and family to Scarborough, 264. Afterwards to Nice for the winter, 264. The subject of Slave Trade and Slavery still haunts him, 264. He reads " Uncle Tom's Cabin," 264. Its effect on him, 264. He writes and publishes some ill-advised letters on " Uncle ' Tom's Cabin," " Bleak House," " Slavery and the Slave Trade," 264. Letter from Charles Dickens to Mrs. Cropper in reference to this matter, January 21, 1853, 265. Death of Duke of Wellington, September 16, 1852, 265. Denman's lines on it, 266. He arrives in Nice in November, 1852, 266. The Slave Trade excitement still con- tinues, 266. He receives a long and eloquent letter from Mrs. Stowe, on American Slavery, 266. Soon after, on December 2, he is seized with his third and final stroke of paralysis, 269. Strange consequences of this attack, 269. Loses all power of communicating with others, not only by speech, but by writing, 269. Account by Mr. Richard Denman of his father's state, 269. Also by Mrs. Cropper, 270.

CHAPTER XXXVIII.

Denman moved from Nice to England in April, 1853, 271. Returned to Middleton, where Mrs. Hodgson and her children were then residing 271. Death of Francis Hodgson, December 29, 1852, 271. Denman at

CONTENTS. xix

Middleton from April, 1853, to April, 1854, 272. Mrs. Cropper's recollec- tions of his first arrival there, ±72. His wonderful suavity and fortitude under his affliction, 272. Love of reading, 272. The Bible, 272. Shakespeare, 272, Corneille, 272. Racine, 272. Still greater love of being read to — The "Times" daily, "without skipping," 273. Still keeps a sense of fun and a faculty for laughter, 273. The little grand- daughter reads hoax " ho-ax," 273. Has himself dressed daily for dinner with the nicest care, 273. Fond of drives, flowers, pictures, and fine views, 273. He is moved to Stoke Albany in April, 1854, 274. Loving care and devotion of his eldest son and his eldest son's first wife, 274. Old friends write to him, knowing how it pleases him, 274. Note from the venerable Samuel Rogers, March 14, 1853, 274. Another from same, September 28, 1853, 274. From the Duke of Devonshire, February 17, 1854, 275. Beautiful and touching letter from Mrs. Stowe, 276. The end comes suddenly at last, 277. His last moments, 277. His death, September 22, 1854, 277. A little over seventy-five years and seven months, 277. He was buried in Stoke Albany Churchyard, 277. Me- morial window at Penshurst, 277. Suggestions for a memorial bust in Westminster Abbey, 278.

LIFE

OF

LORD DENMAN.

CHAPTER XXIV.

PEERAGE — BARON DENMAN OF DOVEDALE. A. D. 1834. yET. 55.

IN the Spring Assizes of 1834 Denman presided on the Norfolk Circuit, his companion being Sir John Vaughan, then one of the Barons of the Exchequer, but shortly after removed to the Common Pleas.1

It was while on this circuit that the Chief Justice was raised to the Peerage by the title of Baron Denman of Dovedale.

The immediate moving cause of this elevation to the Peerage was the urgent want felt by Brougham of ad- ditional legal assistance in the House of Lords. Early in the spring of this year Brougham had twice written on the subject to Lord Grey,4 pressing the appointment very strongly, intimating that Denman would not decline it, stating even the title, Denman of Dovedale, that he wished to take, and winding up by the assurance, " My

1 Sir John Vaughan, long famous at the Bar as Mr. Sergeant Vaughan ; born 1768 ; called to the Bar, 1781 ; Sergeant, 1799 ; Baron of Exchequer, 1827 ; Common Pleas, Easter Term, 1834 ; died 1839, set. 71. Foss's " Lives of the Judges," vol. ix. p. 288.

8 See the two letters in Brougham's " Memoirs," vol. iii. pp. 337, 340. n.— I

2 LIFE OF LORD DEN MAN. [1834.

belief is that it will be one of the most popular things that you ever did.'

Lord Grey in consequence wrote to Denman in the following terms :

" Downing Street : March 19, 1834.

"My dear Lord Chief Justice, — The Chancellor has expressed to me his anxious desire to obtain your assist- ance in the House of Lords, where he is indeed much in want of it; and I feel myself of how much benefit it would generally be to the Government. He states to me also your consent to the immediate adoption of the necessary measures for this purpose.

" I am therefore prepared to propose to the King your elevation to the Peerage, and shall have the greatest pleasure in doing so both from personal and public mo- tives.

" But before I speak to His Majesty on the subject I feel it to be necessary that I should have your personal sanction, and shall hope to receive it by the return of the post ; I say by the return of the post because the King goes out of town on Friday, and I should wish to make the proposal to him that morning before he leaves St. James's.

" I am, with the truest regard,

" Ever yours most faithfully,

"GREY."

Denman's answer was immediate, and ran as follows:

" Bury St. Edmunds : March 2O, 1834.

" My dear Lord, — Allow me to express my warmest acknowledgments for the honor which you tender me, and which I accept in the hope of rendering some public service in the House of Lords.

"The engagements of my own court will hardly allow of my rendering much assistance in the judicial business there ; but I will be happy to contribute to the extent of my power.

" You will excuse my requesting that if the proposal should be unacceptable to the highest quarter [the King], you may not be prevented from withdrawing it by the communication you have made to me. Nothing could give me more pain than to cause any difficulty in conducting the administration.

1831.] BARON DEN MAN OF DOVEDALE. 3

" I must also assure you (though I am writing in a narrow corner of time) that the highest satisfaction I de- rive, not only from your present kindness, but from that which led you to place me in my present office, arises from the evidence of your esteem and confidence. " I have the honor to be, my dear Lord,

" Your most obliged and faithful,

"THOMAS DENMAN."

Denman having thus given the required sanction, the Prime Minister lost no time in submitting the matter to the King, with what result appears from the following letter:

"Downing Street: March 21, 1834.

" Dear Lord Chief Justice, — I am just returned from St. James's. The King did not make an objection, but at once assented in the most gracious manner, express- ing himself in terms of great approbation of your con- duct since you have been Chief Justice, which, he said, he felt more bound to do from having been originally opposed to your appointment.

" I make this communication with increased pleasure, as it is most gratifying to the sincere feefcngs of friend- ship which I entertain for you.

" I cannot conclude without thanking you for the kind expressions contained in your letter, which I received this morning.

" I remain, dear Lord Chief Justice,

" Yours very faithfully,

" GREY.

" P. S. Orders are given at the Home Office for the immediate preparation of your patent." 1

Denman's answer followed immediately :

" Bury St. Edmunds : March 22, 1834.

" My dear Lord, — I must trouble you with my thanks for your prompt communication. The generous approval of His Majesty enhances my satisfaction, as much as his

'Extract from "London Gazette," March 22, 1834: "The King has been pleased to direct letters patent to be passed under the Great Seal, granting the dignity of a Baron of the United Kingdom of Great Britain and Ireland to the Right Hon. Sir Thomas Denman, Knight, Chief Justice of the Court of King's Bench, and the heirs male of his body lawfully begotten, by the name, style, and title of Barou Denman of Dovedale, in the county of Derby."

4 LIFE OF LORD DEN MAN. [1834.

former reluctance does my sense of gratitude to your- self.

" Most faithfully, my dear Lord, yours,

" T. DENMAN."

On the same day, Saturday, March 22, Brougham communicated the intelligence to Lady Denman in the following note :

" Dear Lady D.,— I ought to have let you know yes- terday that H. M. has been graciously pleased to make the C. J. a peer, and he will be accordingly created in

the course of to-day.

" Yours truly,

" H. BROUGHAM."

The answer of the new peeress, which, as Mrs. Baillie remarks, is " a striking instance of her perfect simplicity of character," ran thus :

" My dear Lord Brougham, — I was never so much sur- prised in my life as when I received your note. Thank you for breaking the news to me, and pray tell me whether my husband is coming to town.

" Believe me, very sincerely yours,

"THEODOSIA DENMAN." Brougham answered :

"Dear Lady D.,— I see the Ch. J. is well worthy of promotion to be an hereditary councillor, for he can keep a secret. He will not, I suppose, be in town any the sooner for being a Lord.

"Yours very truly,

" H. BROUGHAM."

Denman in the meanwhile, on the same day, directly the appointment was rendered certain, had written to his wife from Bury St. Edmunds the following letter, which she of course did not receive till the 23rd, the day after Brougham's communication :

"Bury: March 22, 1834.

" My dearest love, — The enclosed papers [Lord Grey's letters and copies of his own replies] will, I think, in- terest you. I have marked them in the order in which they should be read.

" Most likely you have already heard some reports on the subject, and you may feel a little angry that I did not consult you. But the strictest secresy was enjoined,

1834.] BARON DEN MAN OF DOVEDALE. 5

and I, not feeling quite sure that the Principal [the King] would acquiesce, insisted upon it that the matter should be dropped rather than at all pressed upon him.

" His handsome, generous conduct enhances my satis- faction, as much as his former reluctance [about the Chief Justiceship] does my gratitude to Lord Grey.

" I most sincerely hope this elevation will give you pleasure; nobody ever deserved honor or prosperity better.

" I don't suppose the young ladies will require any apology or consolation. I think my sister [Mrs. Baillie] will like to hear of this, and you to tell her. " I am, my dearest love,

" Your most affectionate and faithful husband.

" I hope you approve of our taking our old names of Dovedale, in the county of Derby."

Lady Denman's letter to her husband after first re- ceiving Brougham's communication has not been pre- served: on Sunday 23, Denman writes to her from Nor- wich, acknowledging it :

"A thousand thanks for your letter: in the course of the day you will receive a more formal announcement of our change of condition, which I am very glad you do not dislike. I shall have the power of franking on Wed- nesday."

On the Wednesday accordingly, the 26th, he writes again from Norwich :

" I will not address you as I had intended, ' my peer-less peeress,' because that might look as though you had lost your new-made peer. What a strange state of things! but it will soon be as familiar as any other of our numer- ous changes of condition.

"This [the Norfolk] is reckoned the easiest of the cir- cuits, and generally lasts the shortest time; but somehow or other, there is a dragging tendency in these times, which keeps one a monstrous long while on the judg- ment-seat. I have done my criminal work, but Vaugh- an's list is very heavy, and I must give some aid.

"Coke1 has been here — the greatest of all compliments — and I must keep my promise of spending a short time at Holkham. You would wonder at his spirits. The day 1 Coke of Holkham, then in his eighty-second year.

6 LIFE OF LORD DEN MAN. [1834.

before yesterday he dined here ; I was unluckily kept in court. Yesterday, he sent word that he would take coffee with us; I was again in court till past ten. He came at eleven, and kept us gossiping till near one; then he went and made the under-sheriff, his host, sit up till near two. His boys came from school to-day, and he has taken them home. Pretty well for 82 years of age."

To his third daughter, Fanny (Lady Baynes), then at Stony Middleton, Denman wrote as follows, immediately after his return to town and while awaiting his first in- troduction to the House of Lords.

" Dear and Honorable Fanny, — Did you ever read Pepys' Memoirs? He describes his own dignity by say- ing that when he went to church in his native village the minister addressed his congregation, at the opening of the service, as ' Right Honorable and Dearly Beloved/ &c.

" Being now in a remarkably bad humor, and you be- ing the person in the world I should select to vent it on, I take you in hand, sitting in the Chancellor's room, waiting for two Barons to arrive to introduce me into this noble House, there to take oaths and my seat.

"Your mother was so much in love with you for your letter on this subject of elevation, that she copied it out for me while on the circuit. You view things in their true light, and must be acknowledged (spite of my ill- temper) to be a sensible as well as a good girl.

" Not only will I send you the newspaper which relates the trial of the mineral murder (if to be found), but I shall enclose the learned judge's report of the same trial, you will like his letter for other reasons, and, indeed, the mode in which the news has been received by my brother judges is a most agreeable feature in the case.1

" Some of the peers, too, are very civil, the Duke of Norfolk having remained in London on purpose to offi- ciate as Earl Marshal. Do not infer from some being

1 The only communication of this kind that has been preserved, is one written from Warwick on April 6, 1834, by his excellent colleague, Sir Nic- olas Conyngham Tindal, Chief Justice of the Common Pleas : " No one of your friends," says the Chief Justice, " can look at your recent and deserved elevation to the Peerage with more satisfaction than myself." Denman had always the most sincere esteem and regard for the high and endearing qual- ities of his brother Chief.

1831.] BARON DEN MAN OF DO V ED ALE. ^

civil that others are the contrary ; I have seen and heard from but few, but all were civil.

" Dick [his son Richard, who had been on circuit with him as Judge's Marshal] came up with me from Hoik- ham yesterday, having left his heart with Margery Coke, an affectionate little beauty, just two years old.1 He and the Honorable Miss Denman [Elizabeth, then his eldest unmarried daughter] both bear their honors meekly.

" Do you approve keeping the name? Do you like the place? [Denman of Dovedale.]

" As to your balustrades [this refers to some improve- ment in the grounds at Stony Middleton], I think we had better see how things look when we get there, and then choose our pattern. Yours is pretty, but I am dis- posed to prefer open work, with something of the trefoil, perhaps, within it. I know you like Frost's [head-gar- dener] style. I sent him some Canada poplars from Holkham yesterday.

" Ever your affectionate father,

" DENMAN."

From the tone of these letters it will be seen that Denman, with his usual sanguine cheerfulness, looking principally if not exclusively to the brighter side of things, was unaffectedly gratified at his elevation to the Peerage. But, as his sister, Mrs. Baillie, observes in her biographical sketch, " to some of those who loved him best this accession of rank did not afford the same un- mingled satisfaction as they had felt at his former eleva- tion, partly because they felt his want of fortune to sup- port a Peerage, and his want of power to save anything considerable in his present situation ; but still more be- cause they feared that the additional duties thus required of him might have a prejudicial effect on his health, notwithstanding the still unimpaired and vigorous state both of his bodily and mental powers."

Neither of these apprehensions were unfounded. Den- man's professional emoluments while at the Bar, though lately considerable, had never been on the same scale as those of Scarlett, Sugden, and several others of his lead- ing contemporaries, and they were more than absorbed

1 Born, therefore, when her father was eighty.

3 LIFE OF LORD DEN MAN. [1834.

by the expenses incident to a numerous family, and a style of living which, without being profuse, was gener- ous and liberal. He had never been economical, was frequently embarrassed, saved nothing, and died poor.1 His case was one of several which seem to afford a strong if not an irresistible argument for the expediency of vesting in the Crown a power of conferring peerages- for life.

Nor can it be doubted that his exertions in the House of Lords, added to the onerous and ever increasing labors of the judgment seat, proved in the end too much for his strength, and greatly contributed to bring on that prostration of mind and body which compelled his re- tirement from judicial and public life at an earlier period than might otherwise have been necessary.

Shortly after his accession to the Peerage, Denman re- moved from his former house in Russell Square to an- other in a more expensive and fashionable neighborhood, having purchased the lease of No. 38 Portland Place, a large and stately mansion of the mid-Georgian aera, well fitted to be the residence of a Chief Justice of England.*

The following is an extract from a letter to his daugh- ter, the Honorable Mrs. Wright, the accomplished wife of the translator of Dante, which was written from the library of the House of Lords, not long after his elevation. The earlier passages refer to some popular publication of the day which his daughter had brought to his notice as containing a panegyric on his public and professional career.

" I am always delighted with your remembrances, and have a few moments in the library of the House of Lords to thank you for your affectionate letter. I rejoice to accompany you in your drives along the road in your open carriage with the merry group following. These are more agreeable circumstances than the panegyrics in the book you name, which is so very ignorant and daring in the statement of facts that its authority is of no high

1 Denman, as appears from a letter written to his man of business, March 22, 1834, was obliged to borrow the sum (^550) payable for the expenses of th? patent conferring his peerage.

* This house was not given up till after the death of Lady Denman in i ** t ; it was the last of Denman 's London residences.

1834-] BARON DEN MAN OF DOVEDALE. 9

value in any respect. It is, however, far pleasanter to me to receive the praise even of such a writer than to encounter his abuse, and I ought to be thankful to him, if not for his praises, at least for the feelings to which he has given birth in your mind.

" My lot has, indeed, been fortunate, far above my talents or merits of any kind. But there is one merit of a kind entirely within one's own command, to which no man could ever more boldly lay claim — the determination to do what is right, whenever that can be discovered. It is satisfactory to obtain credit for precisely the quality on which I pride myself most. Another happy circum- stance is the cordial concurrence, and, I believe, full con- fidence and respect of my brother judges, all, (except Williams)1 nearly strangers to me when I was made Chief Justice.

" I must conclude, not because I have no more to say, but because the Duke of Wellington and Lord Ellen- borough are in full discussion of the revenues of the Duchy of Cornwall, which, it seems, are collected at a cost of 44 per cent. — a good illustration of the old proverb, that ' the King's cheese goes in parings.' "

In the summer and autumn of 1834 a succession of ministerial changes took place which must have led Denman to congratulate himself that his post was no longer planted on the shifting quicksands of party, but on the firm resting-ground of a permanent appointment. Lord Grey's resignation, on July 9, was followed by that of Lord Melbourne and the whole Whig Ministry on No- vember 15, and a few days after the Duke of Wellington assumed the temporary supervision of all the affairs of the realm, a charge which he continued to exercise till the return from the Continent, on December 9, of Sir Robert Peel, — " the great man in a great position, sum- moned from Rome to govern England." 2

During the interregnum, Denman, by virtue of his office as Chief Justice of the King's Bench, was called upon to hold provisionally the seal of the Chancellorship of the Exchequer; and he held it accordingly from No- vember 28 till December 10, when Peel, the day after

1 Williams had succeeded Parke as a Judge of the King's Bench in Eastef Term, 1834. * Coningsby.

10

LIFE OF LORD DENMAN. [1834.

his arrival in England, was appointed to the office, in conjunction with that of First Lord of the Treasury.'

The following note from the Duke of Wellington to the Chief Justice relates to and explains this matter :

" Downing Street: November 27, 1834.

" My Lord, — The King has just informed me that Lord Spencer will resign into His Majesty's hands to-morrow the seal of the Chancellor of the Exchequer, at 3 P. M.

" The practice has been to give the custody of the seal to the Lord Chief Justice of the King's Bench till a Chancellor of the Exchequer should be appointed.

" I request your Lordship, therefore, will be so kind as to attend the King at 3 P. M. to-morrow, in order to re- ceive the seal of the Exchequer.

" I have the honor to be, my lord, "Your lordship's most obedient, humble servant.

" WELLINGTON."

Just before Lord Melbourne's first administration went out of office Lord Auckland, then first Lord of the Ad- miralty, had, greatly to Denman's delight, appointed his second son, Joseph, then a young Lieutenant in his 24th year, to the command of the " Curlew" a lo-gun brig, which for so young an officer was a very good appoint- ment.

The first reformed Parliament was dissolved on 1 cember 20, 1834, and the new Parliament met on Feb- ruary 19, 1835. The swearing-in of members occupied till Tuesday, the 24th, on which day the King went in state to the House of Lords and delivered the royal speech. Two days later Denman, who was then pre- siding at the London sittings after Hilary Term, wrote from Court as follows, to his daughter, Mrs. Wright :

"Guildhall: Thursday, February 26, 1835.

" Dearest Doe, — As you say that my advice is so use- ful and is always the same, I must refer you in case of need ' to my last-esteemed favor,' as the mercantile cor- respondence runs, where I have no doubt you will find it

1 Peel, soon after the meeting of the new Parliament, found the struggle to carry on the administration against an adverse majority a hopeless task, and after a little less than four months continuance in office resigned on April 8, 1835.

1834-] BARON DEN MAN OF DOVEDALE. n

written, ' I am glad you are very well and very happy, only take care not to be too well or too happy,' or words to the like tenor and effect. But I take the opportunity of the Solicitor-General l giving the jury a long history of a case not very entertaining to repeat my good advice and exhortations.

" I have a very heavy entry at Guildhall, and some fear that some of the causes may not be tried in the time appointed. This would grieve me, as I have completely destroyed that gigantic monster called ' Arrear/ who was always obstructing and defeating justice, and tearing out the bowels of unhappy plaintiffs and defendants by accumulated expense and long solicitude. I have intimated my resolution to sit late both to-day and to-morrow, to the no small dismay of the M.P.'s of the Bar, who are groaning under their double duties.

" I suppose you see the Parliamentary Debates, and observe that His Majesty was well received in passing through the streets,2 as were his ministers in the House of Lords, but rather differently, it appears, in the Commons. The only question is how large the majority will be against them : the ' shabbies ' are a large section ; so also are the ' poor creatures,' to which latter party Holland seems likely to give in his adhesion

" I suspended my epistle while the evidence was being given : now it is over, and Mr. Attorney-General3 is stat- ing his defense with not a little fierceness. He is clearly right, and I have tried to stop the cause in his favor ; but the jury still doubt. He bestows tediousness in a spirit of lavish prodigality: Sed fugit interea fugit irrevocabile tempus.

" Brougham was very good in the House of Lords on Tuesday night.4 The Chancellor [Lyndhurst] evidently seeks to recommend himself to the Duke of Cumber- land and the Ultras by his personal rudeness to the man

1 Sir William Follett, appointed Solicitor-Genera) December 17, 1834.

* To open the new Parliament on February 24, 1835.

1 Sir F. Pollock, appointed Attorney-General, December 17, 1834 ; what follows is a very graphic picture of the late admirable and excellent Chief Baron as a Nisi Prius advocate.

4 February 24, first night, in the Lords, of debate on the Address.

12 LIFE OF LORD DENMAN. [1834.

[Brougham] who in his utmost need, made him Chief Baron :

Ejectum littore, egentem Except, et regni demens in parte locavi.

At the same time he seeks to recommend himself to the country by following with feeble steps and at a humble distance, Brougham's great principles of Legal Reform. I don't thing he will lead a quiet and happy life for it.

" I have not yet taken my seat this Session ; had I done so on the first night I could not have helped taking some part in the debate — probably much better not.

"The jury have, at length, concurred in my view, and the Solicitor-General gives up the point.

" We start with another cause at ten minutes after four.1

" Ever your affectionate father."

1 This, if the cause were of the average duration of London special jury cases, might imply a sitting protracted till nine or ten at night, or even later.

CHAPTER XXV.

JUDICIAL CIRCUITS — HOUSE OF LORDS. A. D. 1834 TO 1837. JET. 55 TO 58.

IN the years 1834 and 1835 two changes took place among the Judges of the Court of King's Bench which rendered Lord Denman's position as Chief of that Court still more agreeable.

The first was the transfer from the Exchequer to the King's Bench, in Easter Term/ 1834, of his old friend Williams, in the place of Sir James Parke, who went to the Exchequer.1 Williams was an admirable scholar, a Fellow of Trinity, renowned for his Greek epigrams, for his translations of Demosthenes, and for some first-rate articles on the Greek orators in the " Edinburgh Review." He had fought side by side with Brougham and Denman on the Queen's trial, and had described in classic Greek how from behind the broad shield of his leaders he had harried with the fiery arrows of cross-examination the profligate and mendacious Italian witnesses, especially the female ones (rdz jtvraS 'iTaXiKcct)? He had also gone hand in hand with Denman in those vigorous and per- severing attacks in the House of Commons on old Eldon's

1 Sir John Williams, born 1777; fellow of Trinity College, Cambridge, 1798 ; called to the Bar, 1804; M. P. for Lincoln, 1822 ; King's Covnsel, 1827; Baron of Exchequer, February, 1834, on retirement of Mr. Paron Bay ley ; removed to King's Bench, Easter Term, 1834, and continued a Judge of that Court till his death, September 14, 1846, aet. 69. " Lives of the Judges," vol. ix. p. 313.

^ The epigram :

l (Brougham) dpifpiM, effdX' e'

Nvv jj&v dpiffrevoov sv TipoSo^oiffi Moi d} 'Aiavreirjv TtpofiaW ctGitida TtctfMpacvocaffav Kqtya) EvepSev f'Aco raS xvvds

14 LIFE OF LORD DENMAN. [1834.

procrastinations as Chancellor, which were among the first efficient causes of Chancery reform.

Sir John Williams, though so ripe a Grecian, was by no means a bad lawyer, and ultimately became a com- petent judge. His manner and appearance were indeed eccentric. On the Bench he had a little the look of Punch in ermine. He had also a considerable spice of Welsh irritability, and a very strong and decided way of expressing his opinions; but with all this, from the gen- uine cordiality and kindness of his nature, he was a great favorite both with his brethren and the Bar.1

Sir John Taylor Coleridge, promoted by Lord Lynd- hurst, in January, 1835, to fiU the vacancy in the King's Bench occasioned by the sudden death of Mr. Justice Taunton, was one of the most superior and highly cul- tivated persons who ever adorned that famous tribunal. His career at Eaton and Oxford was extremely briliant : at the Oxford examination for honors in Easter Term, 1812, he enjoyed the distinction, unexampled in the an- nals of the University, of being placed alone in the first class in Classics; and, in 1813, he carried off in one and the same year the Chancellor's prizes for both the Eng- lish and Latin Essays, an academical feat which has only thrice been accomplished since the first establishment of these prizes in 1768 — the two other instances being those of Keble in 1812, and of Milman in 1816.

His academical successes did not prevent his working hard at law in London. He became an accomplished jurist, and a successful practitioner ; but he never aban- doned literature, and so well was he known as an able periodical writer, that when Gifford retired from the editorship of the " Quarterly," Coleridge succeeded him in that ardous and distinguished post, and held it for a year (the year 1824), at the close of which he resigned it as incompatible with the claims of his rapidly increas- ing practice. After his promotion to the King's Bench in 1835, he continued to act as Judge of that Court foi more than twenty-three years (till June 28, 1858). How well he demeaned himself in his high office may be learned from the impressive and eloquent farewell ad- dress pronounced by the then Attorney-General (now 1 See his life in Foss's "Judges of England," vol. ix. p, 315.

»»3t-] JUDICIAL CIRCUITS. 15

Chief Baron) Sir Fitzroy Kelly, on the occasion of his retirement.

" Three-and-twenty years have now elapsed since your Lordship was raised by the well-deserved favor of the Crown to a seat on that Bench. Throughout that event- ful period your public life has been distinguished by that dignified and sustained exercise of high judicial conduct which has rendered so many of your predecessors illus- trious, and has won for the administration of law in this Court the respect and confidence of the people. But, my Lord, it is more especially to the members of the Bar that your long and eminent judicial career has exhibited a bright example of the display of all those attributes which best become a judge in the discharge of his many duties. To a clear and powerful intellect, to legal and constitutional learning at once acute arid profound, to a patient and unwearied assiduity and attention, your Lord- ship has ever added the estimable and scarcely less im- portant qualities of unvarying courtesy of demeanor, evenness of temper, and kindliness of heart." l

Sir John Coleridge, immediately on his retirement from the Bench, was sworn in of the Privy Council, and, as a member of the Judicial Committee, has for many years given the public the benefit of his high judicial ability, unimpaired by age, and mellowed by experience.

For Coleridge Denrnan at once felt the elective affin- ity which generally is entertained by one superior mind for another, however various and unlike the order of their superiority. They became very intimate, and fre- quently corresponded. Several of Denman's letters to his brother judge, which, by his courtesy, have been placed at the disposal of the family for the use of this Memoir, will appear in the course of the following pages.

In the Summer Assizes of 1834 Lord Denman pre- sided on the Western Circuit :

" The circuit [he writes to Mrs. Baillie] has been en- tirely satisfactory. Very hard work came, indeed, more than once in very hot weather, and I was almost knocked up at Exeter: but I rallied, and am now remarkably

1 Foss's "Lives of the Judges," vol. ix. p. 175. The biographical sketch of Mr. Justice Coleridge is -very ably executed.

16 LIFE OF LORD DEN MAN. [1834—

well. Tom [present Lord Denman] told you of the happy hours we spent at Winterslow [Rev. W. Brodie's]. I could hardly escape for a single night at Merivale's, at Barton Place, but I carried Merivale himself off on the box of the carriage along the south coast of Devon to Plymouth and Liskeard — an excellent guide, lovely weather — a delightful tour. I had several leisure days after concluding the business at Bodmin, enjoyed the magnificent land and sea views at Clovelly : but was visited by the only foul weather in the fairest district, and prevented from approaching Linton and Linmouth. Combe Flory, where I dined and slept at Sydney Smith's, is one of the loveliest valleys that can be seen. Our host was severely attacked with gout, and could not dine with his guests, but I had a most delightful morning with him the next day, and he was in excellent spirits."

A letter written to Lady Denman from Bristol (the last place on the Western Circuit), on August 19, 1834, gives an account of his difficulties on the road between Wells and Bristol, and of his reception in the great trading city, which he had not visited since he appeared there as Attorney-General, in the winter of 1832, to prosecute the rioters under the special commission.

" I have tried four long causes to-day, and have still eight to try, how long or short I can not guess. I am eagerly watching for the opportunity to take wing, and may, perhaps, fly faster than this letter to its destina- tion ; but in case this should be otherwise I give you a little notice of my goings on.

" After finishing the business at Wells, I found myself at liberty on Saturday morning to start for Banwell — the Bishop's cottage — where some of those extraordinary caves full of antedeluvian bone" have been discovered. The Bishop called and took me ; I ordered my own car- riage to follow instantly. The carriage came not, for want of horses. I had to walk to the adjoining town ; still neither carriage nor horses. Then came the Bristol javelin man.1 I borrowed his horse and rode on five

1 Javelin men are an escort of men, carrying light (and harmless) spears, provided by the Sheriff's to meet the Judges on their entrance into the as- size town ; they are now a " sham," but were once a reality, having formed the armed force by which the Sheriff safeguarded the Judge from his en-

i 83 7.] JUDICIAL CIRCUITS. 17

miles across country to the nearest place on the high road where horses were kept. But one mare was blind, the other had staked herself, and the postboy was ill. I prevailed with the landlord to the extent of sending a boy over with the blind mare, to carry my apology to the Sheriffs, who had to meet me at Tillenden Hill (the place where Wetherell was so shockingly maltreated in the riots of 1831). At length the landlord's heart re- lented on my declaring the real meaning of the case, and he undertook to drive me himself. While the long divided materials of the chaise were putting together, my carriage at length came up, and finally brought me to the appointed place, not long after the appointed time.

" A very curious sensation entering Bristol, after I had prosecuted the Mayor and all the Aldermen,1 and they place the Judge by himself in a chariot with six horses, which proceeds at a funeral pace to the Court House and the Mansion House.

" The Mayor is a very gentlemanly man, married to a Nottinghamshire lady. I am lodged and entertained by them with great good humor and hospitality. Miles [the member] dined here, which made everything pass off pleasantly. Yesterday I went with the Mayor to see old Mr. Miles' pictures — a splendid collection, and the country, too, very beautiful.

" To-day, after sitting in court till half-past eight, I dined with the Sheriffs — a great Tory party. My health was splendidly received, and I proposed that of Sir Charles Wetherell, the Recorder. The utmost good humor has prevailed.

" When I began this it was past midnight, and, as I must be in court by 9 to-morrow, I will now wish your Ladyship good-night.

" Your ever affectionate and faithful husband."

The next day, August 20, he writes again :

" I hope the sight of my handwriting instead of my- self is as hateful to you as the task of writing instead of

trance into the county, to the assize town, during his stay there, and again on his departure, as far as the borders of the county.

1 For criminal laches in not earlier suppressing the great Bristol riots of

1831 ; tried at Bar, betore Lord Tenterden and other Judges, in November,

1832 ; see vol. i. chap. xxii.

II.— 2

i8 LIFE OF LORD DENMAN. [1834—

coming is to me ; yet it would be even worse for you to receive neither husband nor letter. Twelve hours of yesterday (from 9 A. M. to 9 P. M.) were given to two causes full of difficulty and without the least interest or value. Six causes still remain, and I have the comfort- able assurance that they are likely to be equally long, equally insignificant, and equally tiresome. I can only promise to work at them like a dragon, and lose no chance of knocking them on the head."

At the Summer Assizes of the next year, Denman went the Oxford Circuit with his friend Williams. Writing from Oxford, to Lady Denman, on July 21, 1835, he says:

" I have had a light calendar, which I fully dispatched before one to-day. Williams will not be liberated till to-morrow, by reason of the everlasting speeches in civil cases on this circuit. A curious scene took place in court yesterday. The Marquis of Blandford acted as foreman of the grand jury, and brought in all the bills found for felony. Then came another foreman with a bill for an assault (misdemeanor), in which the defendant was the former foreman — the aforesaid Marquis. It- seems he was served with a writ for a debt, and thought proper to tear the writ, and grievously beat the bailiff. He has been wise enough to make up the matter this morning, and saved me the trouble of fining him, by paying a sum of money to the prosecutor.

" The dons dined here (Judge's lodgings) yesterday- nine in number. The University is very empty, but Dr Buckland has been offering the exhibition of his museum, and Dick Croft feeds the judicial suite to-day. We had a delightful walk, and dinner at the Archbishop's [Har- court, of York] beautiful park of Nuneham, on Sunday : they are a very good-humored family. Tom [the present Lord Denman] is quite well, and rides every morning with my brother Williams."

From Worcester he writes, some days later: "At Oxford I saw many of the major lions, among the rest, Magdalen, which has the finest walks and gardens ; and we dined in state with Richard Croft, in Exeter

1 Sister's son to Lord Denman. The dinner referred to was given in the hall of his College— Exeter.

i837-J JUDICIAL CIRCUITS. 19

Hall. No bachelors' dinner could be better appointed, or more agreeable. Next day I breakfasted again with Dr. Buckland, who introduced me to his famous geolog- ical museum, and gave me, in a condensed form, the sub- ject of his whole course of lectures. I found much more entertainment than I expected, and was highly delighted with the lecture. Tom brought Bessy ' from Bisham, and she saw several of the most striking things in Ox- ford. We then went on to Blenheim, and went through that magnificent mansion. The Duke politely tendered us leave to walk through his gardens and pleasure grounds, which are about a mile in length, beautifully laid out, and full of rare plants. We then proceeded to a most comfortable lone inn — ' Chapel House ' — where we had a family, but rather late, dinner, under Bessy's presidency, at 10. Next day Tom and I rode about seventeen miles, to Colonel Davies' beautiful place — • Elmley Park. We slept in that sweet air, then came into Worcester, and attended cathedral service. After- wards, I sate for five hours in a pretty hot court, and, by way of a pleasing change, dined [at the Sheriff's] in wig and gown, in presence of about thirty magistrates, almost all strangers. The rest of my work I finished to-day by 4 o'clock. Williams is still enjoying the luxury of nisi prius, and leaves me to play the host to about fifty barristers, but without canonicals. We dine with the Bishop to-morrow ; the next day I may take a little of my learned brother's work off his hands, but I am anxious to get off in good time to Lord Lyttelton, who has sent us the kindest invitation to Hagley — a visit to which I look forward with peculiar pleasure.

From Gloucester, still on the same circuit, he writes, on August 16, 1835 :

" This week has been cut up between hard work and long and delightful journeys. The former was over at Hereford about noon on Wednesday, and Tom, Archer," and I proceeded without delay, along the bank of the Wye, to the beautiful town of Ross, visited the house

1 The Hon. Mrs. Hodgson, who went round the rest of this circuit with him.

J Sir Archer Croft, Bart., eldest son of Denman's sister Margaret, one of the Mn^-M-s in the Court of Queen's Bench.

2o LIFE OF LORD DEN MAN. [1834—

and gardens of the benevolent John Kyrle, so celebrated for his good deeds as the ' Man of Ross,' and rode the next morning to Goodrich Castle, a fine ruin on the banks of the same river. We got to Monmouth in good time for church and court, and the remainder of that day and the whole of Friday till nightfall I gave to the criminal business. Yesterday (Saturday) morning we again mounted our horses and rode to breakfast at the village of Abbey Tinterne, graced by the splendid ruins of Tinterne Abbey. At a small but very comfortable inn there my brother Williams and his Marshal joined us. We then proceeded to those walks of the highest beauty on the top of the lofty hill called Wyndcliff, which look down on the curving rocks and woods above the Wye. These are of the most picturesque character, on the grandest scale, and of the finest forms — the eye follows the basin they compose all along the banks of the river right away to the Bristol Channel. One object is disappointing to the eye, but that is no less than the river itself, which gives its name to the scene. We had the ill luck to see it only at low water, shrunk to a thread, and yellow with thick mud. We dined at Chepstow, famous for its noble castle. I came here (Gloucester) to open the commission about 9 at night, in a large and busy town on a market day and a Saturday. Such a contrast to our peaceful wanderings ! and such a drunken attendance while the foolish forms were going through ! As soon as a few moments' silence was obtained, a gruff voice halloaed out, ' Silence in the gallery, I can't hear the gentleman for the noise !' but all were civil enough, and one man kept pretty close, crying ' God bless Lord Denman ! ' '

These letters have been transcribed, and others similar to them will be so, not, certainly, for their literary merit, for they possess little or none, but principally for their simple and unadorned presentment of an English Judge's life on circuit, in those days before railways, with its curious alternations of hard work in court, hard dining at formal banquets, agreeable visits at great houses, and, perhaps pleasanter than all the rest, quiet sojourns at wayside inns in the neighborhood of famous sights or beautiful scenery.

l837-J JUDICIAL CIRCUITS. 21

This Oxford Summer Circuit of 1835 was an exception- ally idle one; and Denman, in writing to his wife during one of his many intervals of enforced leisure, says :

" I must acknowledge that these intermediate holidays are not quite so welcome as they ought to be, because they suggest the reflection, ' What a pity to be detained here doing nothing, when I might have been enjoying myself at home.' However, they give some pleasure, and are really sometimes desirable as an interruption to severer labors."1

Of the mode in which he occasionally amused these leisure intervals a sample is afforded by the follow- ing jeu desprit in Maccaronic Latin, which Denman, a ripe scholar, who always kept up his scholarship, wrote while on the present Oxford Circuit in reference to a somewhat whimsical adventure which, on the Oxford Circuit of the previous year, had befallen his learned brother the Chief Justice of the Common Pleas, Sir Nicolas Conyngham Tindal, one of the most benevolent and good-natured men that ever breathed, with a vein of grave, sly humor which made him vastly relish telling the story himself.

It is here given as communicated by Lord Denman's fourth son, the present Mr. Justice Denman, himself well known in the world of scholarship for his choice translations of the first book of the " Iliad" into Latin Elegiacs, and of Gray's " Elegy " into Greek Hexameters.

The Lord Chief Justice of the Common Pleas, on his way from Shrewsbury to Hereford (on the Oxford Cir- cuit) ran over and killed a pig. An ancient crone to whom the pig belonged came out and abused him vehemently. Sir N. C. Tindal, who was the very per- sonification of good humor, asked the enraged matron what the pig was worth. On her naming £2 he at once handed her the amount (not depriving her of the pork and bacon) and said, " There, my good lady, is 40^. for you, and that, you know, carries costs."

Denman's version runs thus, slightly varying the facts:

1 Since the general introduction of railways, the Judges, especially on the less remote circuits, can frequently contrive to steal home for a day or two between the close of the work at one assize town and its commencement at another.

22 LIFE OF LORD DENMAN. [1834—

I.

• Judex Capitalis,

Habens odio porcum, Vi et armis malis Tradidit in Orcum.

II. Porcum amans anus,

Tanquam Vitrea Circe, Huic injecit manus,

Ut penderet furcse.

III. " Facinus cefandum ! " —

Ut piaret necem Solvit Deo-dandum

Solidis quater-decem.

IV. Ne vocato stolidos,

Qui habitant villagia ; "Quadraginta solidos !

Ubi sunt castagia?"

V.

Addidit Communium,

Placitorum Pater Solidos (quam pecuniam !)

Quadraginta quater.

MORAL. Interest clientibus,

Ut sit finis litium, — Bene jus scientibus,

Melius est initium.

In the Session of 1835, Denman, as Chief Justice of England, acted for some months, ex-offic.io, as Speaker of the House of Lords while the Great Seal was in commis- sion. On Brougham's presenting his celebrated Fourteen Resolutions of the 2ist May, for the establishment of an Education Board, the Chief Justice addressed the House in a few impressive sentences, which, coming from such a quarter, carried great weight with them, on the con- nection between ignorance and crime, and on the duty of Government as a mere measure of precaution, and with a view to the preservation of Society, to bestir themselves for the education of the masses. In the course of his observations he touched upon a point of still deeper and graver significance. " He had," he con- fessed "after reflecting on the question, not as a subject

i837-] JUDICIAL CIRCUITS. 23

for rhetorical declamation, but as one demanding grave attention, doubted how far the State was justified in in- flicting punishment for offenses against which it had taken no means to guard."1

On June 19, 1835, Denman expressed his entire ap- proval of the principle of the Execution of Wills Act, declaring the opinion, the correctness of which time has shown, that the attestation of two persons was quite a sufficient guarantee in cases of wills.

On August 27, 1835, in the course of one of the long and angry debates that took place on the Municipal Corporations Reform Bill, there arose one of those per- sonal discussions which generally, and naturally, succeed better in fixing the attention of deliberative assemblies than solemn arguments on matters of much higher import.

Lord Lyndhurst, in the course of a vehement attack on the ministerial measure, had made some very dis- paraging remarks on the alleged extreme political opin- ions of almost all the gentlemen selected by Government to act as Municipal Commissioners. This called up Denman, who said that,

" These observations had given him the greatest pain ; they were entirely unfounded. These gentlemen had been described as entertaining extreme opinions on polit- ical subjects. Such an imputation was more applicable to the noble and learned person by whom it was made. For that noble and learned Lord he had a great respect ; he was indebted to him personally for a long series of kindnesses. If it was a calumny to declare that that noble and learned Lord had changed his opinions on such sub- jects, he could only declare that he uttered it with per- fect good faith, and he believed also it was the perfect conviction of all who knew that noble and learned Lord."*

Lord Lyndhurst said he had certainly stated it as a matter of charge against His Majesty's Government that they had selected as Commissioners gentlemen of one

1 Hansard, Parl. Deb., third series, vol. xxvii., p. 1335, sqq. It is curious to see the chief of the English criminal law giving, in 1835, a certain sanc- tion to the argument which the French man of genius long afterwards worked out in " Les Mberables."

* Hansard, Parl. Deb., third series, vol. xxx. p. 1042.

24 LIFE OF LORD DEN MAN. [1834—

class of political opinions, and of one class only. As to the reference to his own political life Lord Lyndhurst said :

" I have been on terms of intimacy with my noble and learned friend (Denman) for a long period ; I went the same circuit with him ; I have been engaged in long and varied conversations with him at different times ; and, if he speaks of a period of twenty years past, I can only say that I am unable to recall to my recollection the particular opinions which I might then have entertained or expressed with regard to political measures^): but I can assert that I never belonged to any party or political society what- ever ; I never embarked in politics, and I never wrote a political article on either side of any question which might have been agitated. This was my conduct till I came in the House of Parliament, now nearly twenty years ago. From that period my life has been before the public ; my course has been direct and straightfor- ward ; I have always belonged to the same party, and I have always entertained the same opinions from that time to the present." '

Denman's reply was short and incisive, with a certain tone of high-bred irony about it, which must have made it additionally unpleasant to MephistopJicles.

" If my noble and learned friend has understood me as alluding to certain opinions which he was sup- posed to entertain, with a view of conveying an imputa- tion against him, I can only say it is an imputation which has often been repeated, which I stated, believing it to be true, and which I should now believe to be true, were it not for the assertion of the noble and learned Lord.

"And, I must say, I feel somewhat astonished, that, when the question is, what were the political sentiments of my noble and learned friend, he should plead forget- fulness with reference to the opinions he entertained twenty years ago, undoubtedly, but still when he had attained, nay, passed, the mature age of forty.3

" Up to the period when he came into Parliament, the

1 Hansard, Parl. Deb., third series, vol. xxx. p. 1050.

2 Lord Lyndhurst was born in 1/72 ; he would, therefore, have been foity- three in 1815, and sixty-three in 1835.

1 83 7-] JUDICIAL CIRCUITS. 25

universal impression of those who lived on terms of close intimacy with my noble and learned friend, undoubtedly was this: that his opinions were — not with reference to any one particular measure, or any one occasion, but generally and unequivocally — what would be now called Liberal. Those opinions were not uttered merely in the presence of those who were intimate with him, or in the course of private conversation; but they were avowed as if my learned and noble friend felt a pride in entertain- ing and avowing them.

" I beg to be understood as standing corrected in the opinion I had expressed as to the former political senti- ments of my noble and learned friend, and I shall only, therefore, remind him that stronger proof of his having been a Whig, and something more than a Whig, could be adduced with respect to himself, than as to these Commissioners against whom my noble and learned friend has really been ' scattering his arrows in the dark.' "

The prolonged and embittered discussion on the Mu- nicipal Reform Bill, not finally closed till after more than one conference between the Lords and Commons, kept Parliament sitting till September 10.

Denman, who, from his position as ex-officio Speaker of the House of Lords, was, of course, unable to leave London till the adjournment, lost no time, after the con- clusion of the session, in establishing himself at Stony Middleton, whence, on September 19, he wrote, as fol- lows, to his sister, Mrs. BailKe, who had, it seems, been communicating to him her alarm at some reports of his riding too spirited a horse :

" Thank you for your good advice, but my horse and his rider have been greatly misrepresented ; nothing can be more prudent, careful, or slow. Fanny rides with me, and we all flatter ourselves that her health and looks are much improved. I think she is never long without writing to Sophie. We are a very reduced family — the two old folks, Fanny, and Margaret, though the latter can hardly be said to be of our party, as most of her time is spent at Stoke [the Arkwrights]. For the last week Miss Adelaide Kemble, the divine singer, has been there, with her mother [Mrs. Charles Kemble], the idol of my

26 LIFE OF LORD DENMAN. [1834—

play-going youth. The Duke is also at Chatsworth. There is, therefore, plenty of society within reach. But you can hardly imagine how quiet a life we lead. The weather is magnificent : if the showers are rather more than necessary to preserve the various verdure, they are just right for. our transplantations. The face of things is a good deal changed ; the number of trees being now rather excessive. I fancy we are making a very pretty, and, for its size, rather a handsome place ; but I shall not feel thoroughly attached to it till both my sister [Lady Croft] and you have become acquainted with it, and sug- gested your improvements."

On January 6, 1836, while at Stony Middleton for his Christmas vacation, he writes to Mrs. Baillie respecting the dramas of her gifted sister-in-law, Joanna, which had then recently been published in a collected form :

" I may challenge you to have bewept the ' Bride ' more than I did ; reading it in the carriage with no one but Richard, even his presence was at the time an annoyance to me. That play and ' Henriquez ' stand out to me far prominent before all the rest, many of which, however, possess a high order of excellence ; the ' Homicide/ for example, in which I greatly prefer the substituted scene to that originally written, thinking the effect of heroic reso- lution on a young and generous mind far more dramatic than any scenic exhibition. Empson [editor of The EdinbnrgJi\ tells me he has been performing some of the plays in his brother's family circle with great applause. Merivale mentions those which he has read as delightful, and they do not include either of my two prime favor- ites. The early notices in reviews, &c., are likely to be useful in attracting readers ; and it seems probable that a new edition will soon be called for, in which event I should be glad to tender my services.

" Tempted by Coleridge's ' Table Talk,' which ranks the story of Ben Jonson's 'Alchemist' with the two which I ever thought the most interesting, 'Tom Jones' and the ' yEdipus ' of Sophocles, I have been studying that play and others of Ben's in your two volumes. It turns out that the ' Alchemist ' has no story at all,1 only a magic lantern of knaveries conducted by rogues and

1 A most strange extra-judicial dictum ! The plot of the ' Alchemist ' is a

1 83 7.] JUDICIAL CIRCUITS. -27

trulls. The language, indeed, is vigorous and rich, and some of the pictures of the time amusing ; but how different from those which please from their truth to general nature, and appeal directly to the human heart ! I am happy to say my sons all enjoy Joanna's volumes. The young ladies are preparing for a splendid entertain- ment for this evening — Twelfth Night — and are all but absorbed in it."

Denman, who had returned to town for the first day of Hilary Term (January 19), writes thence to Lady Denman, who had remained for a time in the country, communicating some of the legal gossip of the day re- specting the then recent elevation of Lord Cottenham to the Woolsack, and of Lady Campbell to the Peerage as Lady Stratheden.

" You will see the end of our law changes in to-day's paper. I do not admire any of the new titles. There is much talk of the Attorney-General's [Campbell] being passed over, his indecent boast that he had resigned, and the oddity of his subsequent reconciliation. Littledale just now at a meeting of the judges complimented Lord Abinger on his daughter's elevation.1 He said, rather abruptly, ' It was not matter of congratulation to him.' I have seen the new Chancellor [Lord Cottenham] * a good deal touching the new arrangements, and shall call on the other parties to-morrow."

The next day, January 20, he writes again :

" I give myself a little holiday from law papers, that I may have the pleasure of again writing to you. I told you this morning [in a letter not preserved] how gay we had been, but not that I called on Jekyll on Sunday, who is either eighty-two or eighty-three, extremely deaf, and entirely helpless, carried by servants to and from his carriage, but as lively as a bird, in raptures at my calling, with a voice deeper than mine, and peals of laughter

marvel of constructive ingenuity, or.ly equaled in the English drama by those of Ben's two other masterpieces, the 'Fox* and the 'Silent Woman.'

1 Lady Campbell, raised to the Peerage in 1836 as Baroness Stratheden, was daughter of Lord Abinger (Sir James Scarlett.)

a Sir Charles Christopher Pepys, who, since April, 1835, had been Chief Commissioner of the Great Seal, was appointed Lord Chancellor on Janu- ary 16, 1836, and created Lord Cottenham on the 2Oth of the same month.

28 LIFE OF LORD DEN MAN. [1834—

louder than Lewis's.1 He kept me more than an hour, saying odd things. The Attorney-General's reconciliation with Government he called the Camel (Campbell) going through the eye of a needle. He desired, most particu- lar, remembrance to you, and said you two understood one another; he is not likely ever to dine out again, but hopes you will call on him.

"Afterwards, I met both Mr. Attorney-General and Lady Stratheden (for that is to be her title) at Lord Holland's, as well as the Speaker [Abercrombie, after- wards Lord Dunfermline] and his lady, and others, a very pleasant party, and many inquiries after you. Yes- terday we met Rogers at Cavendish Square [Mrs. Bail- lie's], and had a very amusing day, though not anything worth reporting.

" Have you seen that ' Henrique^ ' [play of Joanna Baillie's] is advertised for Covent Garden, and a popular new actress to take the principal part ? I don't think Joanna has been consulted, or is at all in communica- tion with the theater at present. Your continuing to enjoy the country is delightful to me. Pray have your eye on the form of the sloping ground beyond that which is to be leveled — much care and taste will be re- quired— easy, graceful, and natural slopes must be aimed at.

" I have generally walked down to Westminster [from Portland Place], not liking the carriage, unless it rains, and being deprived of Gamester (alas !) by his lameness ; but I am flattered with hopes of its being only a corn or defect of shoeing : this morning I rode the chestnut, but we shall never like one another. Tell your father [Rev. R. Vevers] you will see him in three weeks ; much sooner, I hope. Your ball is this day fortnight ! "

His attached sister, Mrs. Baillie, was always in the habit of making her brother a present on his birthday (February 21). The following graceful lines, on receiving this annual gift, hastily scribbled off while he was sil- ting in Guildhall, will serve to show the unaltered warmth and steadfastness of the affection which united the brother and sister :

" Another graceful memorial of good taste and affec-

1 Lord Denman's youngest son, then about fifteen.

1 83 7-] JUDICIAL CIRCUITS. 29

tion assumes its destined station, shedding lustre on my official labors. The gift resembles the giver, whose early kindness cultivated every quality that could have a chance of being ripened into fitness for such a station, and whose constant friendship is one of my best en- couragements."

Parliament met on February 4; but Denman's name does not appear as a speaker, except on two occasions in the course of the Session — on June 10, 1836, when he intimated a very strong opinion in favor of abolishing the Palatinate Courts of Durham ; 1 and again on June 23, 1836, when he assisted at the last discussion that took place in Parliament on the Prisoners' Counsel Bill, the second reading of which was, on this occasion, moved by Lord Lyndhurst.

In the course of his observations on this long-pending question, Denman, after paying some deserved compli- ments to Lyndhurst, on the ability with which he had stated the case, declared, emphatically, " that it was es- sential to carry the principles of the Bill into practical execution for the honor of the laws, for the due adminis- tration of justice, for the realization of truth, and for the protection of innocence."

He added, that the only difficulty he had ever felt on the subject was this, that he could never meet with any serious argument against the principle of allowing coun- sel to prisoners.11

In the summer of 1836, Lord Denman chose the South Wales Circuit, of which the two following letters to his wife furnish some pleasant reminiscences:

" Haverford West : July 29, 1836.

" Dearest Love, — I must send you a little letter to tell you that we are all well, and have enjoyed a most delightful holiday at Mirehouse's,3 going round the most wild and romantic coast of craggy cliffs that can be im- agined. We (that is Tom4 and I) were both made un-

1 Hansard, Par. Deb., third series, vol. xxxiv. p. 299.

* Hansard, Parl. Deb., third series, vol. xxxiv. pp. 760-778. The Prison- ers' Counsel Bill received the Royal Assent on August 20, 1836, and became law as the 6 & 7 Will. IV. c. 114.

3 The Hall, Angle, Pembrokeshire.

4 The present Lord Denman, whc accompanied his father as associate.

30 LIFE OF LORD DEN MAN. [1834—

comfortable by GeorgianaV adventurous style of court- ing danger on the edges of tremendous precipices, and it might not be amiss if you gave her a hint on the subject. Our host and hostess were perfectly kind, and their children are extremely amiable. We finished [at Milford Haven] with seeing old George III.'s favorite yacht, the ' Royal Sovereign : ' they are building an enormous steamer and an eighty-gun ship. This scrap is written because I don't know when I may be able to write again, with a heavy crop of causes to be mown. I wish I could give you a notion of ' Elligoy Stack.' It stands a great rock perpendicularly out of the sea, stuck all over, as a garden wall with flints or bottles, with millions of the Elligoy — a kind of sea duck, with about equal parts of black and white, in stripes. Millions are also floating on the waves ; when disturbed they fly around, with such a shrill, rattling scream. The rock is much in layers, where they stand (for want of sitting room), and are said to hatch their eggs with their feet. The sight is never to be forgotten."

From Brecon, a little later, August 7, he writes : il As the post goes out early to-morrow morning, I shall just send you a few lines. We arrived here soon after seven, having performed a most delightful journey through a most rich and cultivated, yet bold and pic- turesque, country. We are quite well — have charming apartments and fine prospects here, with plenty of old churches and ruined castles. The sheriff is the same gentleman who entertained Shadwell and me in 1797;* we are going to dine with him to-morrow. The crim- inal cases here are very trifling, and not much to be done in the civil line ; then there is only the little county of Radnor, before we get to Chester, the last place on the circuit, but with more than twice as much crime as all Wales put together. Having a beech tree struck by lightning on one's grounds [Lady Denman had reported this from Stony Middleton] has a very grand effect. You do not say which beech it is ; I shall make it out in a moment by description."

From Chester Denman wrote to his brother judge, Sir

1 First wife of present Lord Denman.

4 In their walking tour. See vol. i. pp. 17, 18.

i337-J JUDICIAL CIRCUITS. 3t

John Taylor Coleridge (then on the Northern Circuit with Mr. Baron Parke), the first of the series of letters which that eminent and learned person has preserved, and kindly placed at the disposal of his old friend's family for the purposes of the present memoir. It re- lates, amongst other things, to the appointment of his third son, Richard, to the Clerkship of the Assize, which had just been vacated on the South Wales Circuit, by the sudden death of its former incumbent, and is a proof of Denman's scrupulous care in the exercise of patron- age.

" My dear Coleridge, — I can not return your visit by proxy, because my marshal left me at Presteign [assize town of Radnorshire] on his way to Ireland. I have seen your cause list [at Liverpool], and wish you a good deliverance. Vaughan [Mr. Baron Vaughan, who, after taking the North Wales Circuit, had joined the Chief Justice at Chester] will have twenty causes here ; and I have near fifty prisoners, some for very bad offenses."

" Alderson1 wrote me a letter from Wells, with a much better account of Williams and with this P. S. : 'Williams has respited one of the convicts at Exeter, and I am clear he is innocent. God be praised that he was not hanged on Saturday week.' What does Parke say of the confessions at Shrewsbury respecting the man tried before him in '35, and before me in '36? I am not over confident in the truth of scapegoat confessions, yet that statement must produce its effect. These things make me more anxious for the Bill [Prisoners' Counsel Bill] passing, which will give every fair advantage to a pris- oner; but I fear there will be no alteration of the law this Session, and we must go on another year trying in a manner pronounced unsatisfactory by both Houses of Parliament.*

"Poor Caliban2 died of apoplexy at Brecon. I wish you and Parke would tell me whether it would be quite

1 Mr. Baron Alderson, born 1787, senior wrangler, first Smith's prizeman and senior medalist, 1809 ; Judge of Common Pleas, 1830 ; Baron of Ex- chequer, 1834 ; died 1857, set. 70 ; more than twenty-seven years on the Bench.

1 It received the Royal assent on August 20 of this year (1836).

'Nickname of Mr. Jones, Clerk of Assize on the South Wales Circuit.

32 LIFE OF LORD DEN MAN. [1834—

right that I should give the office to my son Richard, who can, I doubt not, do the work very well. The place is said to be worth ^800 a year. How is that possible? ^500 would be enormous for such a circuit. I knew you would like the Northern. Remember me kindly to Parke and the sheriff."

After his return from the circuit, Denman, on August 23, 1836, again wrote from Middleton to his brother judge, announcing that, acting on the advice of himself Parke, and Vaughan, he had given his son Richard the appointment.1 He then proceeds as follows with refer- ence to the unusually heavy cause list that Mr. Justice Coleridge had before him at Liverpool :

''Now for yourself: the task imposed upon you I verily believe to be the heaviest that ever judge under- went. This would give me no uneasiness (for in my sincere opinion none ever possessed more perfectly all the mental qualities required), but that I know you sometimes complain on the score of health. - Let me then remind you that your first duty in every point of view is to pay constant attention to that prime object, and religiously avoid all extra exertions on whatever pretense. Let everything take its own course as much as possible, and flow in its accustomed channel. I hope you may dispense with the modern practice of summing up — so much at variance with the meaning of the word — and merely recapitulate the great points of the evi- dence. Another commonplace counsel I venture to throw in, ' Discard all anxiety.' This demands a great effort, which, however, may be successfully made, and will fully repay the trouble.

" I have now another suggestion to offer. Whether you finish at Lancaster or Liverpool you are within a day's journey of this place [Stony Middleton]; and, as I understand Lady Coleridge is at Scarborough, I don't think you could have a more convenient point of re- union. We have plenty of room for all your party, can find beautiful rides at a short distance for any time you can stay, and shall be delighted to receive you. Lady

1 The Hon. Richard Denman held this appointment till 1839, when, on the death of Mr. Gould, he was made Clerk of Assize to the Home Circuit, an office he still holds. He is now the senior of all the Clerks of Assize.

I837-J JUDICIAL CIRCUITS. 33

Coleridge had better come rather earlier than the ex- pected period of your release, and, if you will tell me her present address, my wife will immediately write to her. I really should hope to provide no disagreeable relaxa- tion from your labors, and it seems to me that no arrangement could be more convenient."

Denman always took a great interest in the jurispru- dence and legal literature of the United States, and never failed to pay every attention in his power to any members of the American Bar who brought letters to him from the other side of the Atlantic. Mr. Benjamin Rand, an eminent advocate in Boston, who, in 1835, had been in London, and was there received by the Chief Justice with his usual courtesy, sent him, on his return to the United States, a series of the most recent reports then published of the Supreme Courts of the re- spective States of Maine and Massachusetts. Denman, while on the South Wales Circuit, acknowledged the gift in a letter, from which the following are extracts :

" South Wales Circuit: July 17, 1836.

" Dear Sir, — Your great kindness imposes on me no light task, which is rendered more difficult by my delay in performing it. I had earnestly desired to become, in some degree, acquainted with the contents of your valu- able present before answering your letter ; but the Terms and Nisi Prius have been too strong for me, and I find myself among the mountains of Wales, at the seat of my friend, Sir John Nichol, traveling an easy circuit, before I have been able to tell you how much I am flattered by your remembrance.

" Englishmen must always regard with pride and satis- faction the share their country has had in forming the legal institutions of your enlightened community ; and I am satisfied that we may, in return, derive great benefit from studying the system adopted by you, and can- vassing the alterations you have made. Our municipal law will thus be always improving; and it is essential for uniformity of decision throughout the civilized world, that we should be apprised of your proceedings on in- ternational and commercial questions. Even in the ap- plication of those general principles of law on which all believe themselves to be agreed, our errors may be cor- ii.— 3

34 LIFE OF LORD DEN MAN. [1834—

rected by watching the conduct of our neighbors, and cur deficiencies supplied by what they have effected.

" Do me the favor, dear Sir, to place on your shelves a copy of the decisions of my illustrious friend, Brougham, when Chancellor.

" I am your obliged and faithful servant,

" T. DENMAN."

In the course of September of this vacation, Den- man, with his wife and several members of his family, passed some days at the Duke of Devonshire's, at Chatsworth, whence he wrote the following to his sister, Mrs. Baillie :

" Chatsworth: Monday, September n, 1836.

" Quarter before seven, i>. M.

" My dear Sister, — I have not had an idle moment till now. when I am waiting till Theodosia [Lady Denman] is dressed, to take her down to dinner. She and I, Joseph and Margaret, are the party here, Bessie and Richard being unavoidably left behind to entertain Mr. and Mrs. R. Vevers [his brother and sister-in-law], who unluckily fixed for their visit the very day of our invita- tion here. I hope you have enjoyed your stay in the country as much as I have ; mine will be inter- rupted next week, when I shall have to sit at the Old Bailey. I fear you will not return to town during my stay there ; if you do, and the autumn smiles, I shall certainly recommend you to come back with me and look at our verdant valley. If the Brodies give you any account of us before that time, I am confident it will be an encouraging one. They certainly enjoyed them- selves with us, and it was most delightful to me to talk over all existing things with Ben [Sir Benjamin Brodie] and become a little acquainted with his family."

" Tuesday morning. Half-past nine.

" I had intended to give you a kind of ' Morning Post ' account of our last night's party, but the servants did not call me till a late hour; and I must soon conclude — not on account of breakfast (for that lasts from nine till twelve), but that my letter may be in time for the post. We have great people here — the Duke of Rutland and his three sons, and LadyAdeliza, the Duke and Duchess of Sutherland, Lord and Lady Tavistock, some Caven-

JUDICIAL CIRCUITS.

35

dishes, and many others. The weather has been dismal, chilly, and rainy. I must leave off. Do offer my kind remembrances to all your party, and believe me always your truly affectionate brother."

CHAPTER XXVI.

THE CASE OF STOCKDALE V. HANSARD — PRIVILEGE. A. D. 1837 TO 1840. ALT. 58 TO 61.

FROM the spring of 1837 to the spring of 1840 Lord Denman was, from time to time, engaged in a conflict, not sought by him, but forced upon him, with the Commons House of Parliament on the question of privi- lege arising out of the well-known case of Stockdale v. Hansard.

In a fragment — unfortunately only a very brief frag- ment— which he has left behind him, written in his own hand, relating to this memorable struggle, and which will be found in the Appendix, he speaks of it as "the most important event of my life, and that on which my future reputation must mainly depend."

No attempt will here be made to weigh the authorities adduced on either side in this ably and exhaustively debated question. Those specially interested in legal and constitutional studies will find ready access to the authentic materials of inquiry in the published Reports of Parliament and of the Court of Queen's Bench.* A concise statement of the principal facts, illustrated by occasional reference to Denman's own judgments, speech- es, and writings on the subject, is all that seems required

'This MS. fragment was written in Tune, 1851, the year after his retirement from the office of Chief Justice. It is given entire in the Appen- dix III.

-"Ad. and Ellis." vol. ix. p. I, and for the Sheriffs case, vol. xi. p. 273 The " Annual Register" for 1840, chap, ii., " the Privilege Question," gives, at large, the facts, dates, and summary of the Parliamentary proceed- ing; and Sir Thomas Erskine May in his "Constitutional History of England," vol. i. chap. vii. pp. 459-462, states clearly and in very brief compass the salient points and principal stages of the controversy. See also Denman's article in the Quarter! v Review for March, 1840, art. ix. vol. Ixv.

1840.] STOCKDALE \. HANSARD— PRIVILEGE. 37

in a record of his life designed rather for general readers than for special students of constitutional law.

The House of Commons in the session of 1835 had re- solved that the Parliamentary Papers and Reports printed for the use of the House, should be rendered accessible to the public by purchase at the lowest price at which they could be sold (a price afterwards fixed at one halfpenny a sheet); that a sufficient number of extra copies should be printed for the purpose; and that Messrs. Hansard, the printers of the House, should be appointed to conduct the sale thereof.

In March, 1836, a report of the Inspectors of Prisons for the Home District was laid before the House, in the course of which the Inspectors stated that they had found in Newgate Gaol some copies of a work "On the Generative System," published by Stockdale, which they described as a book of a most disgusting nature, con- taining plates indecent and obscene in the extreme. The Court of Aldermen, to whom it was referred to consider the report of the prison inspectors so far as it referred to the prison of Newgate, defended the work as rather scientific than prurient. The Inspectors, in reply, denied " that the book was a scientific work, or that the pKtes were purely anatomical, calculated only to excite the attention of persons connected with surgical science ; " and they added : " We adhere to the terms we have already employed as those only by which to characterize such a book." They further stated, " We have also ap- plied to several medical booksellers, who all gave it the same character, and described it as one of Stockdale's obscene books. They said it never was considered as a medical work ; that it never was written for or bought by members of the profession as such ; but was intended to take young men in by inducing them to give an ex- orbitant price for an indecent work."

The Report and Reply of the Inspectors were printed and published by Messrs. Hansard, by order of the House, and in pursuance of the resolutions of 1835 and 1836.

On November 7, 1836, Stockdale brought an action against Messrs. Hansard for publishing the report con- taining the above passages, which he complained of as

38 LIFE OF LORD DENMAN. [1837—

libelous and defamatory. Messrs. Hansard, wno were very ably defended, their leading counsel being Lord Campbell, then Sir John Campbell, Attorney-General, put two pleas on the record — I, notguilty (under which it was open to the defendants to contend that the publica- tion, under the circumstances of the case, was privileged, and therefore not a libel); 2, a justification on the ground of the truth of the alleged libel.

The cause came on to be tried before Lord Denman at the Middlesex sittings, after Hilary Term, on February 7, 1837.

On the first issue the Chief Justice at the trial expressed a strong opinion that the publication of the Report of the prison inspectors, considering the circumstances un- der which that report had been made, was, in law, a privi- leged publication, and could not be made the subject of an action for libel ; and he offered to reserve this ques- tion for the opinion of the full Court — an offer which the Attorney-General declined. On the second issue — that, namely, whether the alleged libel was not justified by the indecent and objectionable character of Stock-dale's book — Lord Denman, afcer a pretty clear intimation of his own opinion on the point, left it to the jury to say whether, in their judgment, the defendants would not, on this second issue, be entitled to a verdict. The jury, after attentively examining the book, which had been produced in court and commented on with deserved severity by the defendants' counsel, took this view, and, on the second issue, whicli in effect decided the case, found a verdict for the defendants.

The Attorney-General, however, pressed strongly for a direction in favor of the defendants on the ground of privilege ; on the ground, namely, that the publication was justified by reason of having taken place under the authority of the House of Commons' resolutions.

Pressed upon this point, the Chief Justice, in vigor- ous and emphatic language, denied both the power in the House of creating such privilege, and also the oper- ation of such supposed privilege to suspend, alter, or supersede any legal remedy to which an Englishman was entitled by the known laws of his country.

The substance of what fell from the Chief Justice on

1840.] STOCKDALE v. HANSARD— PRIVILEGE. 39

this point, is thus given in the report of the trial, pub- lished in The Times of February 8, 1837:

" On the third point that has been submitted to you, namely, that this is a privileged publication, I am bound to say (as it comes before me as a point of law for my direction) that I entirely dissent from the law laid down by the learned counsel for the defendants. I am not .aware of the existence, in this country, of any body whatever, which can privilege any servant of theirs to publish libels on any individual. Whatever arrange- ments may be made between the House of Commons and any publishers whom they may employ, I am of opinion that the person who publishes that in his public shop, and especially for money, which can be injurious and possibly ruinous to any one of His Majesty's sub- jects, must answer in a court of justice to that subject, if he challenges him for that libel. / wish to say so em- phatically and distinctly, because I think, if on the first opportunity that arose in a court of justice on such a ques- tion, that point 'cvere to be left unsatisfactorily explained, the judge who sat there might become an accomplice in the destruction of the liberties of Jus country, and expose every individual w/io lived in it to a tyranny no man ought to submit to. Therefore, on this issue, my direction to you, subject to question hereafter, is, that the fact of the House of Commons having directed Messrs. Hansard to publish all their Parliamentary Reports and Papers, is no justification for them, or any bookseller, in publish- ing a Parliamentary Report containing a libel against any man."

Lord Denman, in the MS. fragment already referred to, thus states the position assumed by the Attorney- General at the trial, and his own mode of dealing with it:

" Ultimately, this position was maintained — that the paper, admitting it to be both libelous and untrue, might yet, under order of the House of Commons, be published to the plaintiff's injury without his having any legal redress.

"The doctrine on which this audacious proposition was founded, was soon averred and maintained — that the House of Commons is the sole judge of its own priv-

40 LIFE OF LORD DEN MAN. [1837—

ileges — in other words, that it has power, by the Consti- tution of England, to make anything lawful which it de- clares to be done in virtue of its privilege; or, in still more general language, that we in England live under an absolute despotism, wielded by the majority of the knights, citizens, and burgesses in parliament assembled for the time being.

" Brought free to face with this alarming doctrine, I did not hesitate to denounce it in strong terms."

In his admirable speech in the House of Lords, de- livered on April 6, 1840, in the course of the discussion that immediately preceded the close of the controversy by the passing of the Printed Papers Act (3 and 4 Vic. c. 9),' Lord Denman said, in reference to what had fallen from him at the trial:

" I felt it to be my duty, on the part of the people of England, to take the ground I had taken, and to say that I did not admit the claim of privilege as asserted, and would not give it the name of law. I may have expressed my opinion too warmly and too largely ; but that the doctrine I asserted was right, I was, my Lords, at that moment, as 1 am still, convinced ; and I felt that if I had thrown a doubt by any delay in declaring my opinion on a question of this importance, and which was so clear to- myse'f, I should have betrayed that duty which I was placed in the Court over which I preside principally to discharge."

Elsewhere, in the same speech he states the nature of the defense set up in the House of Commons in this short and pointed form:

" It amounts to this, my Lords, that they must have a riglit to sell all tkat tliey printed, because tliey liad a right to do all that they pleased. My lords (he added), I do not understand that to be the law of England. If it be so (he says in another part of the same speech), the people of this country have been mistaken for years and centuries in thinking that they lived in a land of freedom."

In the MS. fragment of 1851 Lord Denman says, with

reference to what passed on the first trial, after he had

been forced by the persistence of the Attorney-General

to declare his view of the law on the third issue, " I was

' This speech is reorinted in the Appendix, No. IV.

1840.] SIOCKDALEy. HANSARD— PRIVILEGE. 41

informed and believe that the Attorney-General, turning to his neighbors in Court, expressed his concurrence with the law as I laid it down."

Lord Denman never forgave Lord Campbell for the part that he afterwards took in reference to these proceed- ings ; not, indeed, for laboring to establish (as he was no doubt obliged to do as leading counsel for the Messrs. Hansard, in other words, for the House of Commons) that the exposition of law with which he had thus in conversation expressed his concurrence, was erroneous, but also and still more for repeatedly insinuating, both orally and in well-considered written publications,1 that Lord Denman, in denouncing as he did the claim to privilege set up by the House, was actuated by a vain desire of putting himself forward as a champion of the people's rights with a view of obtaining popular ap- plause ; and this, when none knew better than Lord Campbell himself that the expression of the Chief Jus- tice's opinion on the question of privilege was not in any sense volunteered by him, but was forced from him by the part taken by the leading counsel for the defendant in insisting on a decision upon it.

The House was very indignant at the strong and de- cided terms in which the Chief Justice had denounced the claim of privilege which their leading counsel, the Attorney-General, had set up.

"There are always (continues Lord Denman in the fragment already cited), some zealots of privilege in the House of Commons, and none of its members are more averse than other people to the possession of absolute power. A committee was speedily appointed to con- sider my proceeding. My nephew, Sir Archer Croft,8 attended with the record in Stockdale v. Hansard, and expressed in private to the Attorney-General his pleasure at hearing that the doctrine I had laid down had his ap- probation. The Attorney-General did not deny it, but said that considerable doubts were entertained about it by eminent legal members of the House, whom he named. '

The committee,3 on May 8, 1837, after six weeks of

'Such as his Lives of the Chancellors, and of the Chief Justices.

* One of the Master's of the Court of Queen's Bench.

* Among the members of this committee were Lord John Russell, Sir Robert Peel, Sir William Folleti, Sir Robert Inglis, and Mr. O'Connell.

42 LIFE OF LORD DEXMAN. [1837—

delibeiation, reported in favor of the exclusive right of the House of Commons to judge of its own privileges, fortifying their conclusion by a lengthened and elaborate reference to cases and precedents.1

In consequence of this Report, the House, on May 31, 1837, passed the three following resolutions:

" i. That the power of publishing such of its Reports, Votes, and Proceedings, as it shall deem necessary or conducive to the public interests, is an essential incident to the constitutional functions of Parliament, more especially of this House, as the representative portion of it.

" 2. That, by the law and privilege of Parliament, this House has the sole and exclusive jurisdiction to deter- mine upon the existence and extent of its privileges, and that the institution or prosecution of any action, suit, or other proceeding, for the purpose of bringing them into discussion before any Court or Tribunal else- where than in Parliament, is a high breach of such privilege, and renders all parties concerned therein amenable to its just displeasure, and to the punishment consequent thereon.

" 3. That for any Court or Tribunal to decide upon matters of privilege, is inconsistent with the determina- tion of either House of Parliament, and is a breach and contempt of the privileges of Parliament."

On these resolutions Denman thus remarks, in the " Observations " he drew up and printed soon after- their publication :

" Were it not better to drop the name of privilege — which holds out the semblance of peculiar rights adapted to the proper and unquestioned functions of Parliament — and substitute the name of power ? The Lords came to a resolution that neither House of Parliament can, by its vote, change the law of the land ; but the Commons have now resolved that either House has the exclusive power to judge of the existence and extent of its own powers, without any human control. Consider, then, for a mo-

1 Soon after the appearance of this Report, Denman drew up and printed, but without his name, a very .ible paper, entitled "Observations on the Report of the Committee of the ''.''Use of Commons on the publication of Printed Papers," dated May 8, 1837.

I84Q.J STOCKDALE v. HANSARD— PRIVILEGE. 43

ment, if this theory should become practice, what effect it would have on the mixed constitution of England — • Kings, Lords, and Commons?

"The head of the State, acting through the agency of responsible officers, can do no act v hatever without the full sanction of law. He claims no right to obstruct the access of his meanest subject to the temple of Justice, interposes no shield between his most favored servant and the law, and wields no weapon for the annoyance of those ministers by whom its behests are declared. Sheridan once happily said of the King of England, ' In the Legislative branches he sees his equals, and in the law his superior.' But we are now told that his superior, even in executive proceedings, is to be found in either of the legislative branches. Let the Lords or Commons declare the most ordinary act of any servant of the Crown a breach of privilege, and the service may be thwarted, the agent lodged in Newgate, or exposed to any other punishment, without appeal or remedy. And, as in the daily disputes between man and man, either House may supersede the law, and give its award in favor of either parly, so, in the highest concerns of the State, the interposition of either may hand over the power of acting from responsible Ministers of the Crown to the uncontrollable hands of what is now called privilege.'"

Stockdale, meanwhile, shortly before the passing of these resolutions, having purchased a second copy of the Report, had brought a second action of defamation (as he was entitled to do on the proof of any fresh instance of sale of the Report), and to this action the sole defense put on the record by the Attorney-General was a plea of privilege, justifying the publication under the order and resolution of the House. This plea was demurred to on the grounds, " I. That the established laws of the land can not be superseded, suspended, or altered, by any resolution or order of the House of Commons. 2. That the Commons in Parliament assembled, can not, by any resolution or order, create any new privilege inconsistent with the known laws of the land."

The demurrer came on for argument early in Trinity

1 " Observations on Resolutions of May 8, 1837," pp.47, 48.

44 LIFE OF LORD DENMAN. [1837—

Term, 1839. ^ was most ably and exhaustively argued on both sides (Mr. Curwoocl for Stockdale and Sir J. Campbell for the Messrs. Hansard).1 At the close of the argument the Court of Queen's Bench was unanimous, and Denham and Littledale were prepared to deliver judgment immediately. Patterson and Coleridge, how- ever (and very properly, considering the importance of the question and the vast mass of authorities brought before the Court), thought it better that time should be taken for the preparation of well-considered written judg- ments, which having accordingly been drawn up, were read seriatim by the various members of the Court on May 31, 1 839.'

The judgment of Lord Denman alone, which is very able, occupies 54 pages (from p. 107 to 161) of Messrs. Adolphus and Ellis's reports ; fortunately, however, from its great clearness and method, it will be possible, with- out any material omissions, to state the substance of it — - principally in Lord Denman's own language — in much smaller compass.

After stating the terms of the Plea of Privilege, Lord Denman said :

" This plea it is contended establishes a good defense to the action on various grounds:

" I. The grievance complained of is an act done by order of the House of Commons, a Court superior to any Court of Law, and none of whose proceedings are to be questioned in any way.

"This is a claim for an arbitrary power to authorize the commission of any act whatever on behalf of a body, which, in the same argument is admitted not to be the supreme power in the State.

•' The supremacy of Parliament, the foundation on which the claim is made to rest, appears to me com- pletely to overturn it, because the House of Commons is not the Parliament, but only a co-ordinate and component part of the Parliament.

1 Campbell, who was thoroughly convinced he was in the righ-', took im- mense pains with his speech, which extended over sixteen hours — of course not consecutive.

* See Lord Denman's statement on March 28, 1843, in the. House of Lords. Hansard, Parl. Deb., third Series, vol. Ixvi. pp. 1102, 1103.

iS4o.J STOCKDALE v. HANSARD— PRIVILEGE. 45

"That sovereign power [the Parliament] can make and unmake laws, but for that the concurrence of the three legislative estates is necessary: the resolution of any one of them can not alter t/ie law, or place any one beyond its control. This proposition, therefore, is absolutely un- tenable and abhorrent to the first principles of the Con- stitution of England.1

"II. The next defense involved in the plea is, that the defendants committed the grievance by order of the House of Commons in a case of privilege ; and that each House of Parliament is the sole Judge of its own privileges.

•' This last proposition requires to be first considered ; for if the Attorney-General was right in contending, as he did more than once, in express terms, that the House of Commons, by claiming anything as its privilege, thereby makes it matter of privilege ; and also that its own decision on its otvn claim is binding and conclusive, then plainly this Court can not proceed to any inquiry into the mat- ter, and has nothing else to do but to declare the claim well founded because it has been made."2

After stating that this was the form in which he un- derstood the Committee of the House of Commons to have asserted its privilege, and the House, by a large majority, to have adopted that assertion, the Chief Justice proceeded as follows:

" It is not without the utmost respect and deference that I proceed to examine what has been promulgated by so high an authority. Most willingly would I decline to enter on an inquiry which may lead to differing from that great and powerful assembly. But, when one of my fellow-subjects presents himself before me, in these Courts, demanding justice for an injury, it is not at my option to grant or to withhold redress. I am bound to afford it, if the law declares him entitled to it."

The Chief Justice then proceeds, by the light of prece- dents, to examine the proposition that the opinion either House may entertain of its own privileges is necessarily correct, and its declaration of them absolutely binding.

After exhaustively examining the authorities cited by the Attorney-General to establish that proposition, and

'Ad. and Ell. ix. pp. 107, 108. " Ad. and Ell. ix. p. 108

46 LIFE OF LORD DEN MAN. [1837—

to prove that questions of Parliamentary privilege are in no case examinable at law, he arrives clearly at the con- clusion that they establish no such proposition. On the contrary, he finds that his great predecessor, Holt, having, on three several occasions, found himself com- pelled to deal with questions of Parliamentary privilege, on all of them not only examined the claim of privilege, but gave judgment against it.1

He, of course, founded himself chiefly on the great case of Ashby v. W'hite, in which Holt, against the opinion of other judges of this Court, decided, and the House of Lords, confirming Holt's judgment, held, that even in questions of Parliamentary elections — a matter, if any, peculiary within the jurisdiction of the House of Commons — that Courts of Law were not bound by the opinion of the Commons House on matters of election, whereon that House claimed the sole right of judging, and had actually given judgment ; but that the law must take its course, as if no such judgment had been given by the House of Commons, and no such privilege claimed.

Reverting, then, once again, from precedent to princi- ple, Lord Denman, in concluding his argument as to this part of the case, says : "/# truth, no practical difference can be drawn between the rig/it to sanction all things under the name of privilege, and the right to sanction all things whatever by merely ordering tJiem to be done.

" In both cases the law must be superseded by one Assembly, and however dignified and respectable that body — in whatever degree superior to all temptations of abusing their power — still, the power claimed is arbitrary and irresponsible, in itself the most monstrous and in- tolerable of all abuses."

On the second point, therefore, the opinion of Lord Denman was equally as clear as on the first, and his deci- sion was that the House could not give themselves juris- diction by merely adjudging that they possess it.

III. The Chief Justice then proceeded to examine the third and minor question, viz. whether the particular privilege claimed in this case— the privilege of publication — existed in law.

1 See Lord Denman's judgment in Ad. and Ell. p. 134.

1840.] STOCKDALE v. HANSARD— PRIVILEGE. 47

The proofs that it must so exist, he said, had been based on three ground? — Necessity, Practice, Universal Acquiescence.

As to necessity, he observed, that the supposed necessity was " absolutely non-proven, and had dwindled down, in the hands of the Attorney-General to merely a very dubious kind of expediency."

As to its expediency. Lord Denman remarked — and the remark is important, as will be seen hereafter, with refer- ence to the act of the Legislature that closed the con- troversy— " It can hardly be necessary to gus.rd myself against being supposed to discuss the expediency of keep- ing the law in its present state, or introducing any, and what alterations. It is no doubt suspectible of im- provement, but the improvement must be a legislative act; it can not be effected under the name of privilege." '

As to practice and long acquiescence, he denied that any proof had been given, or could be found of any practice to authorize the printing and publication by the House of papers injurious to the character of a fellow-subject.

Even were it otherwise, he observed, "The practice of a ruling power in the State, coupled with public acquiescence, is but a feeble proof of its legality. I know not how long the practice of raising ship-money had prevailed before the right was denied by Hampden. General Warrants had been issued and enforced for centuries before they were quashed in action by Wilkes and his associates, who, by bringing them to the test of law, procured their condemnation and abandonment."

Towards the conclusion of his judgment Lord Denman thus referred to the remarks that had fallen from him at Nisi Prius, when the case was first tried before him in 1837:

" I can not lament that I gave utterance, at the proper occasion, to sentiments of which I deeply felt the im- portance, as well as the truth ; nor can I doubt that a full consideration of the whole subject will lead to bene- ficial results. One thing alone I regret — a warmth of expression in asserting what law and justice appeared to me to require, which may have rendered it more difficult

lAd. and Ell. ix. p. 153.

48 LIFE OF LORD DEN MAN. [1837—

for the late House of Commons to recede from any claim which it had advanced.1

" Upon the whole matter (said Lord Denman in con- clusion) I am of opinion that the defense pleaded is no defense in law, and that our judgment must be for the plaintiffs on this demurrer."

This celebrated judgment, notwithstanding its length — a length not greater than was absolutely necessary for the purpose of adequate judicial exposition — will be found, in the last analysis, to be mainly founded on a single broad principle, supported by a single illustrious pre- .cedent.

Tte principle is that no one branch of the Legislature, acting separately and alone, can, by any so-called privi- lege, alter, suspend, or supersede the established laws of the land, so as to prevent the subject from resorting to any remedy or enforcing any right which those laws have provided for or conferred on them.

The precedent is the famous judgment in Ashby v. White — the crowning glory of Lord Holt — whom Lord Denman always revered as the greatest among his predecessors in all the long and distinguished roll of the Chief Justices of England.

Among the many contributions which Denman, with unwearied zeal and diligence, made to the elucidation of this great question, few were more important than his publication, in 1837, of the judgment in Ashby v. 117, iti, and of the cognate case of John Paty and others, from a manuscript prepared under the eye of Lord Holt him- self, and which was much fuller and more accurate than the text heretofore printed in the contemporary " Law Reports." This publication, which appeared without Lord Denman's name,8 shortly after the House of Com- mons had passed the resolutions of May, 1837, was pre- ceded by an able and argumentative introduction, from which the following passage may be extracted :

" The genuine and full report of his (Lord Holt's) judg- ment is believed to be now first published, and is highly

1 Ad. and Ell. ix. p. 150.

2 " The Judgments delivered by the Lord Chief Justice Holt in the Case of Ashby v. Wliitt\ and in the Case of John Paty and others." Printed from original manuscripts, with an Introduction : Saunders and Benning, 1837. The citation in the text is from p. vii. of the Introduction.

1840.] SJOCKDALE v. HANSARD— PRIVILEGE. 49

deserving of attention. The Lords' Report on this sub- ject (6 Parl. Hist. 420) is a noble document, but it is thought that Holt's revised statements of his own views ought by no means to be lost. Besides the learning and reasoning, who can fail to admire his plain and solemn statement of the sense of judicial duty; his far-sighted appreciation of the consequence of the disputed privi- lege on the whole frame of government in England; and the manly spirit which indicates the right of all English- men to assert their claims, and that of their advocates to maintain them, and that of the sworn judges of the land to decide upon them?"

The spirit here described as that which animated the great constitutional Chief Justice of an older time, is precisely that which animated his great successor ; and England has equal reason to be proud of both.

Judgment on the second action having been thus given for the plaintiff on the demurrer, his damages were assessed at .£100, a result which by no means satisfied Stockdale, who, during the parliamentary recess of 1839, having bought a third copy of the report, brought a third action against Messrs. Hansard.

To the third action the defendants (in obedience to the order of the House) put in no defense whatever. Judgment accordingly went by default, and on a writ of inquiry in the Sheriff's Court, damages were assessed at .£600, which amount, together with an additional £40 for costs, &c., was levied by the Sheriffs (Messrs. Evans and Wheelton)1 on December 16, 1839.

On the first day of the next Hilary Term (January n, 1840) Stockdale obtained a rule returnable on the i/th, ordering the Sheriff to pay over to him the £640 which they had thus levied.

On the day before that fixed for the return of this rule — Jan. 16, 1840 — Parliament met, and vigorous measures were at once taken by the House of Commons to assert its dignity.

On the very day of its meeting, the House, on the

1 Messrs. Wheelton and Evans, the Sheriffs of London, in law constituted together the Sheriff of Middlesex, which throughout these proceedings, was their proper legal style, but they are generally in the text spoken of as the Sheriffs, in the plural. II.— 4

50 LIFE OF LORD DEN MAN. [1837—

motion of Lord John Russell, after an animated debate, resolved, by a majority of 119, that Stockdale and his attorney, Thomas Burton Howard, be called to the bar; by a majority of 89 they came to the same resolution in the case of the Sheriffs.

On January 17 Stockdale was committed to Newgate, Howard (having expressed regret for his fault) escaping with a severe reprimand.

On the 2Oth the Sheriffs were ordered to refund to Messrs. Hansard the moneys which they had levied, and which they admitted to be still in their possession and control.

The Sheriffs, believing they were bound to do so by their duty to the Court of Queen's Bench, whose sworn officers they were, having declined to comply with this order, it was resolved, on the 2 1st, by a majority of 101, that they should be committed to the custody of the Sergeant-at-Arms, and committed accordingly they were.

The imprisonment of these two gentlemen — " innocent victims," as Sir Erskine May well calls them, "of con- flicting jurisdiction " — excited a considerable amount of public commiseration.

On January 24 the Sheriffs sued out their writ of Habeas Corpus, to which the Sergeant-at-Arms was directed to make a general return, that he held the bodies of the Sheriffs by virtue of a warrant, under the hand and seal of the Speaker, for a contempt and breach of the privileges of the House.

The Attorney-General, Sir John Campbell, in recom- mending the House to adopt this course, had informed them, and with entire accuracy, that the House had power to commit for contempt, and that when it appeared generally, on the face of the return to the writ, that it had so committed, the Court to which the writ was re- turned would have no power whatever to question the ground of the committal, or go into any inquiry as to its propriety or legality.

The legal principle thus stated by the Attorney-Gen- eral was too firmly established to admit of any serious discussion ; and, accordingly, when, on Jan. 25, the Sheriffs were brought up in custody of the Serge iiit-at-

1840.] STOCKDALEv. HANSARD— PRIVILEGE. 51

Arms, the Court of Queen's Bench, having overruled certain technical objections to the form of the warrant and the return, had no alternative but to direct, as it did, that the prisoners must return to the custody whence they came.1

Lord Denman, having stated it as clear law that the Court of Queen's Bench could not examine into the validity of the commitment, but must presume that what any Court, much more what either House of Parliament, acting on great legal authority, takes upon it to pro- nounce a contempt, is so, added, with grave sarcasm, " Indeed, it would be unseemly to suspect that a body acting under such sanctions as a House of Parliament, would, in making its warrant, suppress facts which, if discussed, might entitle the person committed to his liberty."*

The Judges of the Court of Queen's Bench, though thus precluded by the mode in which the Attorney- General had framed his warrant, from effectively inter- posing for the liberation of the Sheriffs, thought it right to take the opportunity of openly declaring their adhe- sion to the celebrated judgment pronounced by the Court, nearly eight months before. Lord Denman did so in the following bold and manly terms:

" I think it necessary to declare that the judgment delivered by this Court last Trinity term in the case of Stockdale v. Hansard appears to me in all respects cor- rect. The Court there decided that there was no Power in this country above being questioned by Law. The House of Commons there attempted to place its privi- lege on the footing of an unquestionable and unlimited power. I endeavored to establish that the claim ad- vanced in that case tended to despotic power, which could not be recognized or exist in this country, and that the privilege of publication as there asserted had no legal foundation.

" To all of these positions, I, on further consideration, adhere: a// of them I believe in my conscience to be true.

"And if this were not so, it is strange that the case should not have been brought before the other ten

1 See "Case of the Sheriff of Middlesex," reported in Ad. and Ell. xi. p 273. * Ad. and Ell. xi. p. 292.

52 LIFE OF LORD DENMAN. [1837—

Judges by writ of eiror. The House would have suffered no loss of dignity by submitting to them [the Court of Error] the question it had already laid before us. In the last resort a further appeal might have been made to the House of Lords.

" In deciding the former case we looked to the law as our only safe guide, discarding all considerations of sup- posed expediency ; and, under the same guidance, we have examined the question now before us. In the present case I am obliged to say that I find no authority under which we can discharge these gentlemen from their imprisonment."

The following passage from the "Annual Register" of the year 1840, relating to this application for the release of the Sheriffs, shows the nature of the public feeling which the proceedings of the House of Commons had already begun to excite.

" On the next day, January 25, Sir William Gossett (the Sergeant-at-Arms) appeared in the Court of Queen's Bench with the two Sheriffs in his custody, who were dressed in their robes of office. Their situation excited a lively interest, and the Court and its passages were Crowded to excess. While proceeding from the apart- nient where they had been confined to the Court, they were loudly cheered by the crowd of persons assembled, who seemed to feel the utmost sympathy for their dis- agreeable position. This was about four o'clock in the afternoon ; and at the time when Sir William Gossett with his prisoners reached the Court the Bench was empty; the whole of the fifteen Judges having been en- gaged during the day in hearing the point argued which had been reserved at the trial of Frost. Williams, and Jones, for high treason at Monmouth. In a short time, however, Lord Denman, Mr. Justice Littledale, Mr. Jus- tice Williams, and Mr. Justice Coleridge, took their seats, and Sir William Gossett immediately handed in his return.

Counsel having been called upon, it was ably contended by Mr. Richards, Mr. Watson, and Mr. Kennedy, on behalf of the Sheriffs, that they were entitled to their discharge — that the Court would take cognizance of the particular breach of privilege of which it was alleged

1840.] STOCKDALE v. HANSARD— PRIVILEGE. 53

they were guilty; and, as it had previously decided against that privilege, it would release those who had merely obeyed, in the execution of their duty, its own orders. The Court, however, thought otherwise. The Judges gave their opinions seriatim, and held that the return to the habeas corpus was good and sufficient — that they could not presume anything, but must take it that the Sheriffs had, in some way or other, committed a contempt and breach of the privileges of the House of Commons, and that, therefore, they could only remand them to the custody of the Sergeant-at-Arms. It was now half-past eight, and Sir William Gossett retired from the Court with the Sheriffs in his custody.

The feeling shown on this occasion against the impris- onment of the Sheriffs was very strong, and the members of the Bar appeared to be almost unanimous in condemn- ing the course adopted by the House of Commons.

The imprisoment of the Sheriffs was of some duration, and enforced with considerable rigor. A motion for their discharge, made on February 3, was rejected by a majority of 71. On February 12, indeed, on a medical certificate that his life would be endangered by further confinement, Mr. Sheriff Wheelton was discharged ; but on February 14, and again on March 3, a similar applica- tion was refused in the case of Mr. Sheriff Evans, the House not being satisfied that the state of that gentle- man's health rendered his discharge necessary ; nor was he released from confinement, and then only provision- ally, till March 5, after the introduction of the " Printed Papers Bill."

Meanwhile the irrepressible Stockdale, though fast in Newgate, continued to exercise his malign activity. On January 25 he had caused his attorney, Thomas Burton Howard, to commence a fourth action against the Messrs. Hansard — a fresh act of contempt, for which the attor- ney was sent to keep company in Newgate with his em- ployer.

On February 17 a fifth action was commenced at the instance of Stockdale, by the attorney's son, which re- sulted in the committal the next day of Thomas How- ard the younger, and of a miserable copying-clerk in his employment, one Thomas Pearce.

54 LIFE OF LORD DENMAN. [1837—

When matters had reached this point, it was univers- ally felt that the dignity and character of the House were being seriously compromised. The public feeling was strongly excited ; placards appeared in the streets of London expressive of the popular indignation ; and the Press, almost without exception, loudly denounced the proceedings of the House as unconstitutional arid oppressive. On February 18, when the order was made for the committal of Thomas Howard the younger, and his clerk, Pearce, Mr. Leader, the member for Westmins- ter, "declared, that though he had hitherto voted with Lord John on all these questions of privilege, yet, he must say that public opinion was not with them on this occasion. He would assert that one could not meet with any person outside the House, except the hangers- on of the Government, who did not say that the House was acting tyrannically, and that it would be beaten at last."

It was evidently high time that the supreme authority of the Legislature (i. e., of Queen, Lords and Commons) should interfere to put an end to a state of things so discreditable and vexatious. Accordingly, Lord John Russell, on March 5, obtained leave to bring in a Bill, generally known as " the Printed Papers Bill," the object of which was to terminate the unfortunate collision of authorities which had occurred, by providing, that in future all proceedings against persons for publication of papers printed by order of Parliament should be stayed on delivery of a certificate and affidavit that such publica- tion was by order of 'either House.

The motion of Lord John Russell for leave to bring in this bill was carried by a majority of 149 (203 to 54), numbers sufficiently indicating how glad the House was to escape by any fair compromise from a position which had evidently became untenable.

The zealots of privilege, indeed, were not satisfied ; but led by the Solicitor-General, Sir Thomas Wilde — more mindful on this occasion of his zeal for the House than of his allegiance to the Government — contended that by invoking the assistance of the whole Legislature, the House in effect waived the assertion of its own privi- lege as a separate branch of the Legislature.

1840.] STOCKDALE v. HANSARD— PRIVILEGE. 55

" The Solicitor-General earnestly cautioned the House against doing anything that might appear to admit in any degree the validity of the judgment of the Court of Queen's Bench. By passing (he said) a legislative measure to stop future proceedings in a summary man- ner, the inference would be that the House admitted it could not set up its own order as an effectual plea in bar, but that some thing further was necessary. It would also be said that they would not have left the judgment of the Court of Queen s Bencli unimpugned, as they had done, liad they not felt that they could not successfully have dis- sented from it. His objection to the bill was that wJien they did not venture to assert separately and independently their own privileges — when they had not expressed the slightest dissent from the legal authority of the judgment pronounced by the Court of Queen s Bench — they in effect affirmed tliat judgment for all practical purposes."

The reasonings of the Solicitor-General on this point seem unanswerable ; and it must be taken that the House, by invoking the authority of the whole Legisla- ture to give validity to the plea they had vainly set up in the action, and by not appealing against the judgment of the Court of Queen's Bench, had, in effect, admitted the correctness of that judgment and affirmed the great principle on which it was founded, viz., that no single branch of the Legislature can, by any assertion of its alleged privileges, alter, suspend, or supersede any known law of the land, or bar the resort of any Englishman to any remedy, or his exercise and enjoyment of any right, by that law established.

The " Printed Papers Bill " was in fact a compromise, leaving the authority of the judgment of the Queen'j Bench, as an assertion of constitutional principle, not only unshaken, but to seme extent confirmed.

The Bill having passed the Commons on March 20, was read a second time in the House of Lords on April 6. On that occasion Lord D-inman delivered the speech from which extracts have already been m:;de, and the whole of which will be found printed in the Appendix;1 a speech of a very high order of excellence, calm, moder- ate, and dignified ; giving a lucid history of the whole

1 Appendix IV.

3 6 LIFE OF LORD DEN MAN. [1837—

controversy from its first inception ; firmly maintaining the ground taken by the Court of Queen's Bench ; but not opposing in principle the Bill before the House as a means of legislatively putting an end to a collision of authorities which had been rather forced upon him than sought by him, and the existence of which no one had more regretted than himself. Notwithstanding some

o o

opposition by the Duke of Wellington, who protested against the passing of any measure the effect of which would be to make the House of Commons " the only authorized libelersin the country," the Bill finally passed the Lords — with some additions and amendments, prin- cipally suggested by Lord Denman himself — to which the Commons agreed, and on April 14 it received the Royal assent, and took its place in the Statute-book as the 3 and 4 Vic. c. 9, with the title of "An Act to give Summary Protection to Persons employed in the Publi- cation of Parliamentary Papers." '

Thus ended this memorable controversy. Mr. Sheriff Evans, who had been released provisionally on March 5 (the day the Bill was brought into the House of Com- mons), was finally and absolutely discharged on April 14, the day it received the Royal assent; and on the same day Thomas Howard the younger, and his clerk, were let out of Newgate; where, however, Stockdale and Thomas Burton Howard were further detained till May 15.

The firmness, temperance, and dignity displayed by Lord Denman throughout the whole of this protracted and harassing controversy, were deservedly the theme of universal praise, and his name became endeared to- the people of England as that of a bold and unshaken

1 The principal provision of the Act is the first section, providing that proceedings, criminal or civil, against persons for publication of papers printed by order of Parliament, shall be stayed upon delivery of a certificate and am.lavit to the effjct that such publication is by order of either House of Parliament.

A concluding clause (the fourth) was added to soothe the susceptibilities of the Lower House, viz. "That nothing herein contained shall be deemed, or taken, or held, or construed, directly or indirectly, by implication or other- wi e, to affect the privileges of Parliament in any manner whatever." This elaborate verbiage could not prevent people from drawing their own in- ferences, nor conceal, by a cloud of words, the substantial defeat of the- House.

1840.] STOCKDALEv. HANSARD— PRIVILEGE. 57

supporter of their ancient liberties and immemorial rights.

He has preserved among his papers a letter by an un- known hand, which, by the indorsement, " to be taken care of" had evidently, gratified him, and which, as a fair ex- pression of the popular sentiment of the time, may be inserted here.

" To the Lord Chief Justice Denman.

"When the spirit of political intrigue, which preem- inently distinguishes the present era, shall have passed away, and agitation have subsided throughout tht; land, the dispassionate judgments of another generation will gratefully appreciate the judicial virtues and the mag- nanimity of the Lord Chief Justice Denman.

" It is not fitting in me, my lord, an humble member of the English Bar, to offer to your Lordship the spon- taneous tribute of admiration which is participated by a large portion of the profession ; yet the homage of the citizen is not, on that account, the less due to the bene- factor of his country, when he predicts of your Lordship that so long as Westminster Hall shall endure, so long as the British Constitution shall exist, so surely shall that which your Lordship has done for the people of England, in the case of Stockdale v. Hansard, stand re- corded, a glorious memento, in the brightest page of our national annals. "ClVlLIS.

"June 19, 1837."

It was not only the popular sentiment, however, which, revering in Lord Denman the fearless and upright magistrate, ranged itself in favor of the line taken by the Court of Queen's Bench ; but the learned opinion also of Westminster Hall was entirely in favor of the correctness, in point of law, of the judgment in Stockdale v. Hansard.

This appears from a discussion which arose in the House of Lords, on March 28, 1843, regarding a speech then recently delivered by Sir Tnomas Wilde in the House of Commons, and which, as incorrectly reported, attributed to Lord Denman an expression of opinion in the course of the judgment in Stockdale v. Hansard,

58 LIFE OF LORD DENMAN. [1837—

which in point of fact he had never uttered. This led to a declaration on the part of Lord Den man of his be- ing prepared to abide by every word of that judgment as correctly given in the authorized legal reports ; to a re-affirmation of the principles laid down in the judg- ment, which, never having been appealed against, must be taken as correct in law ; and to a vindication of the judges who had taken part in it from the disparagement [recently put forth by Lord Campbell in his " Lives of the Chief Justices"] of being " mere lawyers."1

This called up Lord Campbell, who declared it to be his firm opinion — 1st, that the judgment of the Court of Queen's Bench was entirely erroneous, and had been at once condemned by Westminster Hall: 2ndly, ''that the Printed Papers Publication Act amounted to a Par- liament arv reversal of the judgment, inasmuch as the preamble of that Act distinctly recognized it to be essentially necessary to the due discharge of the func- tions of the two Houses that they should have the power of publishing whatever part of their proceedings they might deem requisite for the information of the public."

On both points Lord Campbell received an emphatic and decisive refutation.

As to the opinion of Westminster Hall, Lord Abinger (Sir James Scarlett) — certainly no partial witness in Denman's favor — said, " As far as I could learn the opinion of Westminster Hall on the subject (and Scar- lett, in 1839, when the judgment was delivered, was the first man in the profession), I must say that the general feeling there coincided with what I believe to have been the universal feeling elsewhere " (viz., in favor of the judgment). Lord Abinger reminded Lord Campbell that '• at the time the judgment was pronounced, he [Lord Campbell] was not in a position to ascertain truly what the real opinions of the bar were. He then held a high and influential situation under the Government [as Attorney-General], and was surrounded by persons who were not likely to differ from him in opinion.""

As to the alleged Parliamentary reversal of the judgment, by the passing of the Act of 3 & 4 Vic. c. 9,

1 Hansard, Par!. Deb., third series, vol. Ixvi. p. 1 100 et seq. 3 Hansard, i'arl. Deb., third series, vol. Ixvi. p. 1113.

1840.] S7OCKDALE v. HANSARD— PRIVILEGE. 59

Lord Denman (who. in giving judgment in Stockdale v. Hansard, had, as already pointed out, distinctly dis- claimed expressing any opinion on the expediency or otherwise of altering the law as it then stood, although intimating that it was susceptible of improvement) sup- plied the following short and conclusive answer: —

"As a Judge, I denied that that privilege of publica- tion existed before, to the injury of individuals; as a Legislator I concurred in its being permitted for tlie future. As a Judge I could only lay down the law as I found it ; as a Member of Parliament I agreed to a change in the law for the public advantage."

As to the point of " Parliamentary reversal" the Duke of Wellington also, who had, not without difficulty, con- sented to the passing of the Act on Printed Papers, spoke as follows : —

"The noble and learned lord [Lord Campbell] says that Act was a contradiction of the judgment of the Court of Queen's Bench, and is wholly inconsistent with it. I wish just to state what passed in this House when that act was under your lordship's consideration — namely, that it was the noble and learned lord, the Chief Justice of the Queen's Bench, who himself supported the measure and prevailed on your lordships to adopt it. Answering only for myself, at least, I can say that /tew persuaded to vote for that measure entirely in consequence of the spcfch of the noble and learned lord, the CJiief Justice, who, I take it, would not have urged the Bill on the adoption of the House if it were so entirely incon- sistent, as the noble and learned lord [Lord Campbell] lias represented it to be, with the judgment of the Court of Queen's Bench."

Very few, if any, letters are to be found among Lord Denman's papers bearing directly upon the great contro- versy raised by Stockdale v. Hansard.

The two following, however, which have an indirect relation to it, may conveniently be inserted here.

In 1838 the venerable Lord Commissioner Adam had written Denman a letter (not preserved) in praise of his constitutional exertions, and inclosing some papers in reference to what he himself had done in 1793, when he had brought before Parliament the illegal sentence of the

60 LIFE OF LORD DENMAN. [1837—

Scotch Court of Judiciary in the case of Muir, and had been defeated by 171 to 31. The sentence in Muir's case was flagrant and monstrously illegal ; he had been convicted of sedition {for associating to obtain a Reform in Parliament /) and sentenced to fourteen years' transportation, suck punishment for such offense being totally unknown to the law ! ! Lord Commissioner Adam had sent these papers to Denman as showing how, in periods of political excitement, the sense of justice can be overcome in the House of Commons by the spirit of party.

Denman's reply was as follows :

. " Middleton : August 27, 1838.

" My dear Lord, — One of the first occupations of my leisure has been the perusal of the valuable documents which you have been so good as to transmit to me. I beg you to accept my thanks, and to believe that few persons could be more gratified by any proof of your re- gard or more interested in the contents of the papers.

" It has ever been my opinion that the resistance made by Mr. Fox and his friends to the inroads of ar- bitrary power preserved the free Constitution of this country from the most imminent danger, and that not one of their efforts is entitled to more praise and grati- tude than your able vindication of the law against the judicial outrage committed on the persons of Mr. Muir and his fellow-sufferers. It seems now astonishing that the torrent of power and party spirit could sweep away the safeguards of justice when so clearly pointed out ; but you fixed the landmark while the storm was raging, and it still remains, now that the waters have subsided, for the protective guidance of posterity,

" The result must be delightful to your feelings. There can be no higher reward tor a public man than to wit- ness the triumph of those just principles which he had dared to assert under every discouragement. That you, my dear lord, may yet have the satisfaction of seeing a long series of these bloodless victories in the cause of freedom and humanity, is my earnest hope.

" Your lordship's obliged and faithful servant.

" DENMAN."

The other letter was written to the Duke of Welling-

1840.] STOCKDALE v. HANSARD— PRIVILEGE. 61

ton, just before the Privilege controversy was terminated by the passing of the Printed Papers Act. The Duke had taken throughout a strong interest in the discussion, and had fully supported the views enounced by Lord Denman. Denman had sent the Duke a copy of his own republication of Lord Holt's judgment in the case of Ashby v. White, and of John Paty and others ; and the Duke had lent Denman the pamphlet referred to in the following letter. The tone of respectful homage which pervades Denman's communication is the sincere expression of his real sentiments for the great Captain to whom, personally, he always felt he had been under deep obligation, for procuring him the first great and in- dispensable step in his professional advancement — the rank of King's Counsel.

" Warwick : March 29, 1840.

" My dear Lord Duke, — I have the honor to return, with many thanks, the volume which you were so kind as to lend me. The account of what occurred in Parlia- ment and the Queen's Bench with reference to the Five Men of Aylesbury, is very well drawn up: yet, if your Grace could find time to read the judgment in Paty's case, as reported in the little publication I sent, I think you will find the principles and reasonings both more eloquently stated and more fully developed.

"The value stamped by your Grace's approbation on the narrative of the Battle of Blenheim in the same volume has induced me to devote some short intervals of leisure to the perusal of it.

" Both these passages in our history appears to me ex- tremely interesting, as well from the nature of the trans- actions as from their resemblance to events in our own times.

" The author's style rises with his subject. The Duke of Maryborough is brought upon the scene with great spirit : ' a person whom courage, experience, vigilance, and .conduct recommended for a captain-general, and whom wisdom, penetration, temper, and affability fitted for a plenipotentiary.'

" Few will read this passage without finding a parallel which is only not exact, because still higher qualities ought to be added to complete the likeness.

62 LIFE OF LORD DEN MAN. [1840.

" On the other hand, the successor of Lord Holt can enter into no competition with him, except, perhaps, on the score of good intentions.

" I am conscious of some presumption in placing my- self, on any terms, in company with such illustrious names: but the observation has forced itself upon me.

" In common with all Englishmen, I claim an interest in your Grace's reputation, and I am proud to remember that you have some interest in mine, as being, to a cer- tain extent, responsible for my promotion to an office that I never could have attained without the rank pre- viously procured for me by your kindness and gen- erosity.

" Permit me, my Lord, to express my hope that the Bill relating to Printed Papers may lead to the satisfac- tory adjustment of painful differences, though it will probably require modification and curtailment.

" I have the honor to be " Your Grace's obliged and faithful servant,

" DENMAN."

In addition to the many publications and documents already referred to in the present chapter, a paper may be mentioned which Lord Denman himself communi- cated on this great question to The Quarterly Review? It is not, however, necessary to do more than thus refer to it, for, though able and interesting, it adds nothing to the elucidation the subject had elsewhere received from his more authoritative deliverances— his judgments in the Court of Queen's Bench and his speeches in the Upper House of Parliament ; while, from the easy ac- cessibility of the volume in which it is contained, it has not been thought necessary to reprint it in-the Appendix. 1 Vol. Ixv., No. for March 1840, Article ix.

CHAPTER XXVII.

SOCIAL AND FAMILY LIFE— FIRST SLAVE-TRADE SPEECH IN HOUSE OF LORDS.

1837 TO 1841. JET. 58 TO 62.

WITH a view of presenting a continuous account of the proceedings and discussions connected with and arising out of the great case of Stock- dale v. Hansard, the course of the narrative has been suspended, and the order of time departed from.

The first trial of Stockdale v. Hansard took place, it will be recollected, in February, 1837; and the prepara- tion, later in the spring of that year, of his pamphlet commenting on the resolution of the Commons Commit- tee, coupled with the deep and extended researches into the Law of Privilege, to which, as his papers prove, he about this period devoted himself, sufficiently occupied the greater portion of the time which the Chief Justice could spare from his judicial functions.

On June 20, 1837, William IV. died, and Her present Majesty succeeded to the Throne.

In the session that preceded the consequent dissolu- tion of Parliament, Denman had the high satisfaction of at length carrying through the House of Lords two bills, one finally abolishing death punishment in all cases of forgery, and the other putting an end to it in a great variety of other cases, where, though in fact capital pun- ishment was hardly ever, if ever inflicted, the power of awarding it was, to the disgrace of the law, still suffered to remain.1

In the late autumn session which followed the dissolu-

1 These two Bills received the Royal assent, one on July IT, the other rn July 17, 1837. See Hansard. P.irl. Deb., third series, vol. xxxviii. ] p. 1773-1859-1907-8; the Act abolishing Death Punishment for Furgery is I Vic. c.'84.

64 LIFE OF LORD DEN MAN. [1837—

tion — on December 3, 1837, — the Chief Justice lent cor- dial and efficient support to the Bill for the Abolition of Arrest on Mesne Process, the second reading of which was on that day moved by Lord Cottenham.1

Among the few letters of this year which have been preserved, is the following, written on August 4, for the amusement of his daughters, and giving an account of a dinner-party at Buckingham Palace, the first, apparently, which the Chief Justice had attended since the young Queen's accession.3

" Now for a description of the Queen's dinner. The dinner was at a quarter-past seven, at Buckingham Palace, and I was there within ten minutes after that time.3 The Palace has been much maligned, and is really much handsomer than I expected. The hall and staircase are magnificent. A splendid room hung with green silk first receives you, then a round room with a vaulted roof, where several were assembled, and among the rest Tricoupi. In about five minutes folding doors to the right were thrown open, and the Queen came tripping in, with the Duchess of Kent and all her ladies. A general bow and some particular addresses, very short, and interrupted by ' God save the Queen,' softly and charmingly played by the Coldstream band. It was kindly received, for it meant dinner. She was led in by some foreign nobleman, and so in order. I am sorry I can not say who was led in by me. We passed through a large room — remarkably rich with gilding and yellow furniture, but deformed with numerous pillars of mock marble, of a deep raspberry-cream color, with which the gilded capitals harmonized very ill — into the dining- room. Candles were lighted, but we had sufficient day- light to show the fine trees in the garden, and might have been, as the Cockneys say, a hundred miles from London. I was seating myself at one end of the table, when Colonel Cavendish told me that place belonged to him as equerry, and so I was divorced from my anony-

1 Hansard, Pad. Deb., third series, vol. xxxix. pp. 592-625. This Bill received the Royal assent on August 16, 1838, and is i & 2 Vic. c. no.

* The letter was addressed to his third daughter, Fanny, now the Hon. Lady Baynes.

3 Lord Denham had come up from Croydon, where he was presiding on the Home Circuit.

1841.] SOCIAL AND FAMILY LIFE. 65

mous partner. This threvy me next to Miss Spring Rice and mother, and another maid of honor whom I did not know, and to the same side of the table with Her Majesty, so that I could see but little of her.

"The party was, I think, twenty-six in number. The conversation was confined to small knots, but was lively and incessant, though carried on in subdued tones. It was very different from the kingly table I remember, where the Royal Host used to drink to the general health of the whole table, and singly with most of his company, and more than once. Shortly after dinner, while Miss Spring Rice was harrowing my feelings with the story of Norma, there was a little stir, and Colonel Cavendish called me by name out of my reverie. All stood and drank the Queen's health ; half an hour then passed in conversation, and after a second ladyless half hour, we returned through the gorgeous apartment to the vaulted gathering-room, the folding-doors of which opened into a sober drawing-room, and others into the gallery of Flemish pictures — a most noble collection. The band was placed at the end of this gallery, and it played at dinner, and at intervals throughout the even- ing, very softly and sweetly.

" In the drawing-room whist was played at one table. Her Majesty was seated on a sofa between the Marchion- ess of Abercorn and Madame Tricoupi. Her Majesty de- sired chairs to be placed, and that all of us should sit down, so the conversation went on till about eleven, when the same national air again struck up, and the party broke up.

" Now I come to the important part of my descrip- tion ; but, though the general mourning is over, it was still court mourning. The Queen wore all black, with a train, her hair as usual, with thin rings of curls hardly larger than a shilling on the cheeks — that is one just below each ear: a little flowing black gauze was fastened in the hair behind ; but I don't know what became of it, I rather suspect it was fastened somewhere about half-way down her back. The Queen is exactly the height of Madame Tricoupi, but looks much shorter when sitting. No human countenance was ever more expressive of happiness and good-nature; she had some- thing to say to everybody, and asked me about your «.— 5

66 LIFE OF LORD DEN MAN. [1837—

mother and about the circuit ; not the smallest con- straint with anyone ; on retiring she shook hands with several of the ladies, and seemed to talk very confiden- tially with some. I heard her ask with much interest, ' Is it a nice child?' Her Majesty is not yet provided with a horse, so if you hear of anything very perfect for spirit and docility, you may as well make a purchase of it on speculation : she is determined to have a large horse, 4 none of your cobs.' '

On October 20, 1837, he writes from Middleton to Mrs. Baillie:

"The extraordinary beauty of this morning has tempted me to a short walk before commencing my daily occupation of writing letters. The glass is at 58° in the shade. I sincerely wish you could enjoy our quiet, dewy scene, which promises a whole day equally fine ; but we will hope for similar weather next year. My former reading had thrown me on ' Mackintosh's Life,' ' which I have read for the second time with increasing pleasure." In a subsequent letter he tells his sister: '• I am deep in Madame de Sevigne's letters, which I never read before, and find equal to all their panegyrics."8

The following letter to Coleridge was written while Denman was presiding at the London sittings after Michaelmas Term of this year, immediately on receipt of an engraved likeness of his brother Judge, accompa- nied by a note, in which Coleridge begs his acceptance of it " in token of the great pleasure I have in serving in the same Court with and under you, and of my sense of your uniform kindness to me."

" December 15, 1837.

" Dear Coleridge, — Under any circumstances I must place a high value on an excellent likeness of you ; but as a present from you, and accompanied by suck a letter, it is inestimable.

" I was going to write to you about Awdry's letter,*

1 First published in 1835.

1 Denman had no doubt been induced to set himself to the perusal of the Sevigne letters by the enthusiastic eulogies of Mackintosh, who, in his "Memoirs," shows himself almost as much in love with the "charming woman" as Horace Walpole in his " Letters."

* Sir John Awdry, born 1795 ; Judge and Chief Justice of the Supreme

i84i.j SOCIAL AND FAMILY LIFE. 67

and express the hope that in his wide separation from us, he may represent and anticipate the judgment of posterity. To my posterity, at least, your portrait and letter shall descend.

" I don't know that I ever exchanged a word with your correspondent (Awdry), and of course am deiighted with the manner in which he speaks of me. I am the less surprised at it because I fancy there is discoverable in his letter a strong sympathy between his habits of thinking and mine. Wordsworth's stanza, which he resents, made me so sore, five-and-thirty years ago, that I followed out his attack on professions by a parody run- ning through all walks of life.1

*' His (Awdry's) refutation of the sarcasm by referring to CressweH's" looks, has something whimsical in it, from a personal anecdote of what occurred on a trial before Holland at Carlisle, when I went the Northern Circuit with him in 1833. Lord Lonsdale prosecuted for libel, in consequence of a violent invective against himself in respect to the St. Bee's charity. Wordsworth, as Commissioner of Stamps, attended in court to prove the publisher's affidavit, and sat to the end of the trial. In his presence, Cresswell, for the defendant, read an eloquent passage from Wordsworth's pamphlet on the Convention of Cintra, stating as the most disgusting proof of moral degradation in any people, that its nobles abuse the charitable funds intrusted to their manage- ment. And this very pamphlet was understood to have been bought up by Lord Lonsdale to smooth the way to Wordsworth's appointment to that very office he now holds.

" At this moment Creswell and Thesiger are engaged before me, fighting a case on a mercantile contract, very well on both sides. I hope this prose to you has not

Court of Bombay from 1830 to 1842 ; first class in Classics at Oxford in 1816, and Fellow of Oriel.

1 The stanza is no doubt that occurring in Wordsworth's poem, " A Poet's Epitaph " —

" A lawyer art thou ? — draw not nigh ; Go, carry to some fitter place The keenness of that practiced eye, The hardness of that sallow face."

1 The late Mr. Justice Cresswell, before his promotion to the Bench, was leader of the Northern Circuit.

68 LIFE OF LORD DEN MAN. [1837—

diverted my attention from Thesiger's argument, which now draws to a close.

" I can not conclude my acknowledgments without as- suring you how sensible I am of the value of your co- operation as a judge, and of that personal friendship which I most sincerely return.

" Ever, my dear Coleridge,

" Yours, " DENMAN."

In the early part of the year 1838, Denman was made very happy by the union of his second daughter, Eliza- beth, with his old friend and schoolfellow, Francis Hodg- son, who had for some years been Vicar of Bakewell, the little Derbyshire town where Denman's grandfather had lived and where his father was born. The near neighbor- hood of Bakewell to Stony Middleton had led, since 1830, to a frequent intercourse between the Vicar and the Den- man family. Hodgson, whose first wife had died some years before his second marriage with Miss Denman,' had, since 1836, become Archdeacon of Derbyshire and Vicar of Edensor, close to Chatsworth (in addition to Bakewell). In 1840, as will be afterwards seen, he was elected Provost of Eton, an appointment worth from two to three thousand a year, on obtaining which he re- signed his former preferments.

In addition to very considerable classical and literary attainments,2 Francis Hodgson was a most charming person in society, and an admirable talker. He was well received in the highest circles, and an especial favorite with the then Duke of Devonshire (the sixth duke), so long and so well known as a leader in the world of fashion.

In the spring of 1838 Hodgson was staying in London at Devonshire House, when he received from his old

1 Hodgson's first wife (nde Tayleur) was a graceful and accomplished per- son. This was the lady whom Monre saw when he visited Bakewell, in 1828, to learn all that Hodgson could tell him about his earlier intimacy with Byron — a visit of which he has given a pleasant account in his Diary under the dates of the 25th, 26th. 27th, and 28th of January, 1828.

* In addition to his excellent translation of Juvenal, Hodgson published, from time to time, a good deal of verse, of which a poem called " The Leaves of Laurel " was probably the best known. His early intimacy with Byron has elsewhere been alluded to ; he was also much liked and appreci- ated by Moore.

i84i.J SOCIAL AND FAMILY LIFE. 69

friend a letter written on March 21, from Exeter, on the Western Circuit, where the Chief Justice was then pre- siding. It was evidently written, as the following extract shows, after having received from Hodgson an intima- tion of the state of his affections.

" You can not easily conceive the incessant occupation brought upon me by the present assizes; my only time for writing is in Court, where I am afraid, during the long, long speeches, of losing something that ought to affect the decision. I seize a few moments, therefore, from needful repose, to say how much I am pleased with the interest my dear daughter has excited in you, and with the prospect of that closer intimacy which our new relation must produce. I can not doubt that a union formed so entirely on perfect regard and esteem on both sides will be happy, and one of the greatest enjoyments of my life will be to witness and promote your comfort. I am literally almost dropping out of my chair, and must resume work at an early hour to-morrow. Good night, and many happy years to you."

In the course of a letter written on March 26, to his daughter Elizabeth, from Launceston, on the same cir- cuit, he thus refers to the marriage, which, by that time, it seems, had been already arranged.

" The more I think of your prospects the better I like them. Nothing can promise so fairly to exalt the character and advance the happiness of a wife as such a temper and conversation, such manners, talents, and principles."

On May 24, 1838, while presiding at the sittings either at Westminster or Guildhall,' he wrote the fol- lowing lively and entertaining letter to the newly- married couple, who were just completing their honey- moon at Hardwicke Hall, one of the Duke of Devon- shire's rural palaces in Derbyshire.

" My dear Children,2 — You must, I fear, have thought mean unnatural parent; but you, my dear Elizabeth, are well acquainted with the complete absorption of my

1 Most probably at Guildhall, on the first day of the London sittings in Trinity Term, which had begun on May 22.

* This paternal style of address to a son-in-law nearly his own age wa» of course intended to raise a laugh.

70 LIFE OF LORD DEN MAN. [1837—

whole being in sittings and visitings, so that nothing gives me the opportunity of putting pen to paper except a long consultation in the jury-box (which now happens), or a very long speech about nothing. I have been truly happy to hear of your enjoyment at Hardwicke, and delight in thinking that you will find Middleton not uncomfortable, and I trust, in high beauty. We have been very gay; on Monday, Lord Clarendon1 gave a particularly pleasant party — Lords Grey and Holland, and several others. Lord Grey not in absolute good humor with his old friends ; a little sore on many points ; inclined to admire Sir Robert Peel's speech at Merchant Tailors' Hall;2 not pleased with Brougham's last politi- cal article in the EdinburgJi, The general asperities not softened by his being seated next to Lady Clarendon, who required him to carve all the dishes, especially a roast pig!3 Lord Holland, more amiable, good-hu- mored, and entertaining than I ever saw even him before — quite aware of Lord Grey's infirmity, but only amused by it. Both deep in Wilberforce's biography, and agreed that it raised him in their estimation. Hol- land said in addition (but with some nervousness as to how it would be received) that the work also raised Pitt in his opinion. This was controverted, but not ungrace- fully. Grey condemned the ' Athenian Captive.'4 He would not speak of it. Grey said he could not read ' Pickwick.' Holland spoke of it with discriminating discernment, but -ntioned Boz's other book, ' Oliver Twist,' almost witn tears. When Grey offered to help him to pig, he declined it hastily, and gave me the most comical look, as though he should have come between the lion and his wrath. Rogers mentioned that Fox used to be very angry with those who questioned Wil- berforce's sincerity about slavery. When, however, some one said to Fox, ' Suppose Wilberforce had to choose between continuing slavery and turning Pitt out of power.' ' Ah,' said Fox, ' that would have been a

1 The third Lord Clarendon, grandfather of the present Earl. "On May u.

3 An infliction enough to have soured most tempers. The dinner a la Uussehad not then been invented.

4 Talfourd's play, then recently brought out.

1841.] SOCIAL AND FAMILY LIFE. 71

hard choice for him. I am afraid he would have given the preference to Barabbas.'

" We had yesterday a very agreeable pretentionless dinner at home. Miss Pierce,1 Mr. and Mrs. Merrivale, Charles Wright, &c. We were also gladdened by a let- ter from Cadiz, written by the commander-in-chief there.'

" Our fair ones at this moment are all doing honor to the [Queen's] birthday. I am showing respect for my Sovereign by administering justice to her subjects. But they are a queer set. We have a horse cause, with many interesting traits of low life, a la Pickwick and Nickleby. A widow, in crape, of an hostler, who died last Decem- ber in a hospital ; she said, 'We did not live very well together, but thank God we died very good friends.' It seems that she set out to go to see him, and on the way got so tipsy that she fell and cut her head, and became a patient in the same hospital for a fortnight, during which he died."3

It should have been, perhaps, mentioned, in connection with the Western Spring Assizes of 1838, that this was the first occasion on which Denman, as one of Her Majesty's Judges, was entertained by the Duke of Wel- lington at Strathfieldsaye — a visit which was afterwards frequently repeated. On this occasion, as usual, a large party of county magnates were invited to meet the Judges, amongst whom the present Lord Denman (who accompanied his father) recollects Lord Eversley, Assheton Smith, the famous master of hounds (an old Eton schoolfellow of Denman's), Mr. Darby Griffiths, Mr. Pigott (brother of the present Baron of the Ex- chequer), and many others. Denman's sister (Lady Croft) came over to see her brother from Strathfield Mortimer; and the Duke, having no ladies, gave her a private room to see him in. At breakfast the Duke and all his non-legal guests appeared in red coats for the

1 Of Bedale, in the North Riding.

'Captain Joseph Denninn, at the moment, I suppose, first officer of the West African squadron, then in Cadiz harbor.

3 "Ah, dear," says Mrs. Gamp, "when Gamp was summonsed to his long home, and I saw him a-!a'ying in Guy's Ho-pital, with a penny piece over each eye, and his wooden leg under his left arm, I thought I should have fainted away — hut I bore up." Had Dickens ever heard Lord Denman's story of the hostler's widow? Likely enough.

72 LIFE OF LORD DEN MAN. [1837—

meet, which was to take place that morning in the neigh- borhood ; and it is a circumstance that seems to have made an impression on the present Lord Denman's memory, that the Duke had a " tag," or hook-and-eye apparatus, attached to the collar of his " pink," which enabled him to close it round the tiiroat like a great coat.

In the session of 1838, Denman first brought before the House of Lords a subject which much interested him, and on which he had previously, by letter, consulted all the members of the Bench — the substitution of affirma- tions for oaths in all cases where witnesses entertained conscientious scruples against being sworn. The answers of the Judges were unfavorable; but the Chief Justice persevered, and, on June 15, 1838, moved, in the Lords, that the report on the " Oaths Validity Bill " be received.

This Bill, as Lord Denman explained to the House, contained two clauses, having for their object : the first, to enable all witnesses to be sworn according to the/<?r;# binding on their consciences ; the second, to enable all those who believed that no oath ought to be taken, to make affirmation instead.

The first clause, he stated, was merely a declaration of the Common Law of England, the principle of which was, that the conscience of the individual was the only law to be resorted to in swearing him in. Such affirma- tion of the Common Law had been rendered necessary by a recent decision of the Irish Judges, to the effect that the evidence of the well-known Dr. Cooke, of Bel- fast, who had been sworn, not in the usual mode, but with uplifted hands, according to the practice of the Presbyteiians, had been wrongly admitted by the Judge who tried the case: the consequence of which decision had been that the prisoner, who had been convicted on the sole eviJence of Dr. Cooke, had. though his guilt was most clear, been unavoidably discharged from custody.

The second clause of the Bill enabled witnesses who thought an oath wrong to take an affirmation instead. On this clause, Denman observed:

" Now, if the principle of allowing a witness to be sworn according to that form which was binding on his

1841.] SOCIAL AND FAMILY LIFE. 73

conscience were good, it followed that the second clause was equally fit and necessary to be introduced as part of the enactments of the country; for, if it were not fit to impose on a witness an oath in a different form from that in which he conscientiously believed, it followed as a corollary that if a witness believed that no oath at all should be taken, his affirmation should be received instead."

Notwithstanding this entirely irrefragable argument, the Lords, influenced a good deal by Lord Abinger, who on this occasion represented the opposition of the great body of the Common-Law Judges, shrunk from taking the wise and moderate step in Law Reform to which the Chief Justice pointed the way; and he, seeing the sense of the House to be against him, was content with carrying the first clause only,1 reserving the second to be em- bodied in a separate Bill, which, when subsequently brought before the House (on July 14), and pressed to a division, was rejected by a majority of 16, half the whole number that voted ; the contents being 16, and the non- contents 32."

There will be occasion hereafter to relate the subse- quent Parliamentary exertions of the Chief Justice on the subject of substituting affirmations for oaths, and to state what the law of England, on the matter, at present is.

It was in this year, too, that the Chief Justice was mainly instrumental in promoting and carrying into effect that great and beneficial reform in the administra- tion of Justice, by which the Common-Law Courts were enabled to sit in Bane, beyond the narrow limits of the four legal Terms, and to hear arguments and deliver judgments in Vacation.

Lord Denman used to calculate that in the twelve years that elapsed between 1838 and 1850 (the year of his retirement), no less than two additional years of sit- tings, were, by this measure, given to the public. This circumstance so gratified him, that he desired it to be recorded on his tomb — a desire carried out by his eldest son, who has caused the fact to be inscribed on the

1 Hansard, Par!. Deb., third series, vol. xliii. pp. 756-767. 'Hansard, Parl. Deb., third series, vol. xliv. p. 319 et seq.

74 LIFE OF LORD DENMAN. [1837—

stone that covers his remains in Stoke Albany church- yard.

The Long Vacation of 1838 was spent as usual at Stony Middleton, in planting, thinning, and improving, entertaining friends, making visits and excursions, and keeping pace with the current literature of the day.

On September 27, writing from Middleton to his friend Coleridge, whose tastes and pursuits were very similar to his own, he says :

" My life has been much like yours. My literary taste, such as it is, I find quite as strong as ever, and perhaps rather more eager ; but I have no fellow-student, so I can not venture on the ancient classics. One of yours, or very likely yourself, can perhaps tell me from what play I took a motto that has been a favorite with me nearly half a century —

Mrj Zoorjv JJST a^ovfficxs 'Aei d €v Hidapaiffiv zitjv.

In the same strain he writes to his sister, Mrs. Baillie:

" We have had a holiday rather too agreeable to me, as a life of literary quiet, to be just the thing for young ladies; but you know how good and considerate mine are. I flatter myself that both1 are much im- proved in health, and my lady is a great deal stronger than she used to be. Last week I took George a to Cam- bridge, and settled him under Mr. Whewell 3 to my entire satisfaction, and with the earnest hope that he may distinguish himself. I may probably inclose his late master's testimonial."

The hope thus expressed was brilliantly realized. The name of the Honorable George Denman was first in the first class of the Classic Tripos for 1842, and the next year he became Fellow of Trinity — honors which caused inexpressible delight to his father, who had watched with sanguine, yet anxious fondness, every step in his son's University career.

The tebtimonial referred to in the letter to Mrs.

1 His third and fourth daughters, Fanny and Margaret, now Lady Baynes and Mrs. Cropper.

2 His fourth son, now the Hon. Mr. Justice Denman. 8 The famous Master of Trinity.

1841.] SOCIAL AND FAMILY LIFE. 75

Baillie was from the Rev. J. H. Macaulay, the master of Repton School, where George Denman had been educated.1

In the course of the same letter, Denman indulges in a little literary gossip about Brougham's then recently published " Characters," &c., which is interesting from the evidence it affords of Denman's deeply rooted and unchanged veneration for Fox.

"Brougham's 'Characters' are very lively, and his views in general, I think, just; but I have complained to him of his disparaging Fox. We are in high contro- versy about it, and, if I had time, I think I could not refrain from printing. I hope Lord Holland or some one else will. A review of those times convinces me of Fox's good qualities more than ever ; yet Brougham hardly raises him above the level of Pitt, whose whole life, from the cradle to the grave, was nothing but the love of office."2

He then refers, as follows, to Macaulay's well-known article on Sir W. Temple :

" Macaulay ought to have vindicated Temple against his foolish biographer, of whom Bessie [Mrs. Hodgson] and I said last year that he found a white marble statue, and took delight in spoiling it by scrawling with a black lead pencil, first his own name, and then all manner of nonsense. It is as reasonable to quarrel with Temple for not being Russell or Sidney, as for not being Marl- borough or Somers. It is not the heroic line; but an honorable, amiable, and consistent man, whose life was devoted to the honest service of the public and to literature, should have been left in possession of all the respect the world was paying him.

In the earlier part of 1839, tne Chief Justice, as already

1 The following is an extract from the testimonial : — " It is with great regret that I take leave of George, though with complete satisfaction as far as his state of preparation for Cambridge is concerned. If he continues throughout to exert himself with the same activity and perseverance which has marked the last year or two, nothing can prevent his highly distinguish- ing himself. With regard to the last two months, I can truly say I have never known an equal period of time more industriously or more profitably employed."

"A gross injustice to Pitt, of which Fox's idolaters were too often guilty. The statesman who was killed by Austerlitz had something else in him than love of office — he had love for country and glory.

jt LIFE OF LORD DEN MAN. [1837—

mentioned, was anxiously and laboriously engaged on the great question of Privilege, and he does not appear to have spoken in the House of Lords till July 18, when he supported the second reading of the bill (called " The Custody of Infants' Bill ") for giving the wife right of access to her children in cases of separa- tion. In the course of his speech he said :

" Some alteration, and that of a sweeping nature, was absolutely necessary to the due administration of justice, and for the prevention of the frightful injuries to society which the existing system gave birth to. The existing law was cruel to the wife, debasing to the hus- band, dangerous and probably ruinous to the health and morals of the children, who could not have any such sure guarantee against corruption under the tutelage of a profligate father as the occasional care of a mother."

The Chief Justice instanced the case of the King v. Greenhill, which had been decided in 1836, before him- self and the rest of the Judges of the Court of King's Bench. " He believed," he said, " that there was not one judge on the Bench who had not felt ashamed of the state of the law, and that it was such as to render it odious in the eyes of the country. The effect in the case he had mentioned would have been, unless Mrs. Greenhill- had fled from this country with her children, to have enabled the father to take his children from his young and blameless wife, and place them in charge of the woman with whom he then cohabited.1

The just and powerful observations of the Chief Jus- tice, co-operating with the brilliant eloquence of Tal- fourd in the Commons, were mainly instrumental in bringing about such partial and incomplete change for the better, as has since been realized in this peculiarly difficult and delicate department of the law.

In the Summer Assizes of 1839, Denman presided on the Home Circuit, accompanied by the Chief Justice of the Common Pleas, Sir Nicholas C. Tindal, for whom he always entertained the highest respect and esteem, and who, on this occasion, paid him the unusual and

'Hansard, Parl. Deb., third series, vol. xlix. p. 491 et seq. This was the measure in the promotion of which, Talfourd so brilliantly distinguished himself in the House of Commons.

1841.] SOCIAL AND FAMILY LIFE. 77

flattering compliment of going with him on circuit as second judge.1

It was while on this circuit that Denman received a pleasing reminiscence of the virtues of his excellent father, in the announcement of a legacy of £10,000, left among his unmarried daughters, under the will of the venerable Sir Francis Drake (a lineal descendant of the famous old sea hero), who, when a young captain in command of the " Edgar," had been most anxiously nursed and skillfully tended in a dangerous illness by Dr. Denman, then the ship's surgeon, whom he ever after- wards regarded as a brother. In his extreme old age, Sir Francis had bequeathed to the granddaughters of his old friend and benefactor this substantial token of his gratitude and affection.

Lord Denman hurried off from circuit to be present in the House of Lords on August 15, when, on the second reading of the Government " Bill for the Better Suppression of the Slave Trade," he made a most able and masterly speech, which greatly contributed to the success of the ministry, who had recently been outvoted in the Lords on the cognate measure known as the " Slave Trade (Portugal) Bill." This was the earliest of Dcnman's great exertions in the House of Lords on the question of the West African Slave Trade — a question which from this time forward was destined to make claims on his heart and brain, that had much to do with gradually undermining his constitution, and which, from its effect on his nervous system, prepared the way for the inroads of that disease which ultimately prostrated him.

On the present occasion, one of his great objects was to allay the alarms assiduously propagated by the Duke of Wellington and Lord Lyndhurst, and to satisfy the House that the fears of war with France, as likely to arise out of the execution of the more stringent methods of suppression sanctioned by the Bill, were, in truth, baseless and chimerical. His principal and entirely cor- rect point was this, that no act of Parliament can give

1 It hardly ever happens that two Chief Justices, or a Chief Justice and Chief Baron, go the same circuit.

78 LIFE OF LORD DENMAN. [1837—

the Crown powers of search, detention, and seizure which it does not possess by treaty.

" My lords, in respect of the possible seizure of other vessels, [i. e., not Spanish or Portuguese], I am really sorry to say one word on the subject after what has fallen from my npble and learned friend [Brougham], I feel ashamed to repeat that no act of Parliament can give the Crown power to seize vessels which it is pre- cluded from seizing by treaties. The words ' any vessel ' mean only any vessel which the Crown is now permitted to seize by treaties into which it has entered, and does not include any vessel which, under the treaties, it could not capture."

On the general question he said :

" Your lordships ought not to allow any opportunity to pass which will enable you to make the suppression of the Slave Trade not merely a name but a fact. When once it has been established that the slave trade is ille- gal, the restraints which treaties have put upon its aboli- tion ought to be looked at with a jealous eye. That is the principle by which your lordships ought to bi guided."

Adverting to the indemnity proposed to be given by the Bill to the officers engaged in the suppression of the trade, Lord Denman expressed himself as fol- lows :

" I say the necessity is imposed on your lordships of providing that judges should henceforth be relieved from the necessity of stating that a man engaged in the capture of his fellow creatures for sale is engaged in a legal traffic, and, at the same time, of telling a jury that the man who, in obedience to your lordships' orders, has stopped him in his inhuman traffic, is guilty of a pun- ishable offense. I say your lordships are called upon to do something for the protection of your own agents, acting under your own enactments. There must be the right of visitation and search, and, if a mistake is made, the officer making the mistake must be liable, or the State in his place. If it were not so, it would be impos- sible to take any steps for the suppression of the slave trade. By this bill the Government take upon them- selves the responsibility of the whole matter, and call

1841.] SOCIAL AND FAMILY LIFE. 79

upon the House to do nothing but indemnify the officers of Her Majesty in the discharge of the duty imposed on them ; and to allow the Admiralty Court to adjudicate on seizures made under the treaties."1

Denman's powerful and masterly appeal, urged with all the sincerity of deep conviction, and with a ripe maturity of legal knowledge, produced