THE EARL OF WALDEGRAVE'S CASE. (Hansard, 29 March 1841)

§ Lord Denman

said, that the presentation of a petition relating to the administration of justice, which with the permission of their Lordships, he intended to lay on their Table afforded him a not unfit opportunity of taking notice of certain charges which had been brought against himself for the manner in which he had lately acted in his judicial capacity. Perhaps he need not have waited for such an opportunity. From one who owed his seat in that House solely to the situation he held as the head of the criminal justice of the country, their Lordships might expect a justification of himself from charges of a serious nature, at the earliest moment when the performance of his duties permitted his appearance among them. While, indeed these charges were confined to anonymous writings, he did not feel it necessary to take public notice of them: but when he found that a statement was twice made as a grave reason for the adoption of a particular legislative measure, ^*that there ha been a very scandalous proceeding on the part of criminal judge, which, if true, would expose him owed it to their Lordships, and he owed it to the administration of justice, having a full and complete contradiction to the accusation, that he should give it fully and completely. In a criminal case which lately came before him, he was supposed from mean and unworthy motives, for the base purpose of screening persons in high station from punishment, to have compelled a compromise, and brought the pro- ^* Mr. Hume's speeches in the House of Commons on Thursday the 25th, and Friday the 26th of March. 652 ceedings to an end, enforcing only a pecuniary compensation, when a public example ought to have been made. Of such a charge he should certainly have ventured to think that, without strong and clear evidence of the fact, the whole history of his life would have afforded a refutation; but the statement had been so preferred, and so repeated, and at length by such high authority, that he deemed it right to bring the matter forward. It was not for the purpose of making explanations, (for none would be necessary when the truth was known) but to state the truth, which he believed would induce even those who had assailed him with most acrimony, to regret that they had permitted themselves to do so. He referred to the case of Lord Waldegrave and Mr. Gordon (for it was an idle affectation of delicacy to suppress names when the allusion is universally understood), charged with having committed an assault upon a policeman, and he (Lord Denman) was said to have directed compromise, and to have stopped the proceedings. Now, in the first place, he gave no such direction; he had no power to give any such direction. Secondly, the proceedings were not stopped; the proceedings were now going forward; and would, according to the ordinary course of practice, bring the defendants before the Court of Queen's Bench next term to receive judgment. They will be dealt with according to law, as the facts of the case, disclosed in the usual manner by affidavit, may require. He believed, that the storm of indignation which had been urged against him had arisen from the opinion that he had the power to stop these proceedings, and that he had exerted that power. This accusation was found to be untrue, being indeed impossible; but the charge only varied its shape. Similar misconduct was alleged, and the same motives imputed. For it was then asserted, that the proceedings were kept alive by the law, in spite of the judge; and the commissioners of police were praised for persevering in their prosecution, after he had suggested and recommended that it should be discontinued. His answer was, that no such suggestion had been offered, no recommendation given, no opinion expressed, or even formed, for he possessed no materials on which to form one. He had before him an accurate account of what had passed in Court, in exact conformity, he believed, with what had appeared in the Times newspaper of the next 653 day. The record had been removed from an inferior court by certiorari; it was tried before him at nisi prius: he was therefore left without the least previous information; no depositions were returned to the judge in such trials. It was in his power to consult the public prints, and he might so derive particular impressions from ex parte statements; but he (Lord Denman) denied that he was bound to do so, or that he ought to do so: in point of fact, he was absolutely ignorant of all the circumstances of that case, and did not even know at whose instance the indictment had been preferred. But when the case was called on for trial, his learned Friend, Sir Frederick Pollock, on the part of the defendants, in asking leave to withdrew their plea of not guilty and to plead guilty, expressed on their purl the most sincere regret for what had occurred, and their desire to make every possible atonement and apology. To grant the leave he prayed was entirely a matter of course, and the plea of guilty placed the case precisely where it would have been, if the trial had proceeded, and the jury had pronounced the defendants guilty. There was no doubt, that by the term "atonement," was meant pecuniary compensation; and although if the public were deeply injured, and a public example was necessary, no such atonement ought to be permitted; yet, if the offence were chiefly a private injury that could be adequately punished by a fine, it was much better that the money should go into the hands of the individual injured, than into the public treasury, where the party would receive no benefit from it: and such is the known practice of every court of justice in the kingdom, in relation to indictments for assault. His observation upon this suggestion, not originating with him, but proceeding from the defendants council, was simply this: "At least they act right now; let their plea he withdrawn and a plea of guilty be recorded. I hope the case is of such a nature us to admit of its being settled by private reparation." It was evident that he contemplated the possibility of the case turning out on inquiry to be of such a nature that private reparation could not be accepted, because a public example might be necessary. Yet this intimation of a doubt whether private reparation could be allowed, had been tortured into an order that the prosecutor should be bought off, and the offenders screened from justice. 654 He flattered himself that, wherever this plain statement was heard, it would relieve him, and relieve the administration of justice from one of the many attacks which certain persons had lately thought themselves justified in casting upon both. He was not ignorant how often such things had been staled in the public, papers; of these it did not become him to take the slightest notice; but when he saw what was stated in one paper, copied into another, and repeated, as an admitted fact, by an hon. Member of the Mouse of Commons, he need not say on what occasion, the character of the charge was wholly altered. When he found that distinguished person declaring, that the whole public were exclaiming against the sentence passed by Mr. Justice Erskine, of fifteen years' transportation upon a poor man convicted of an offence far less heinous than that which went unpunished in rich men before the Court of Queen's Bench, he had deemed it his duty to make his statement to the House. He thought it, indeed, extraordinary, that any man could set about a comparison of two cases, when the facts of the one had not been proved at all, and still rested in ex parte statements, while in the other they had been established on oath in open court, to the satisfaction of the jury. Was this the proper mode of securing the fair administration of justice, and excluding prejudice from our courts? Let it be remarked, too, that the one case was charged as a capital felony, the other as a simple misdemeanour. He could not deny that he witnessed with some indignation the readiness to suspect the ministers of the law of favour to the rich and harshness to the poor, of which this comparison is put forward as an example. He knew not whether Mr. Justice Erskine was arraigned as well as himself: if he were, no man could rely more securely on his own character and conduct for protection, for none ever applied an excellent understanding to the questions that arose before him with more scrupulous care. But, he believed, that though Mr. Justice Erskine had sentenced the poor man, he was only cited for the sake of an invidious contrast with the judge who had failed to pass sentence on the rich. And he believed, that his noble Friend (the Marquess of Normanby), would state, that in the case referred to, jealous as the people justly were, in watching all proceedings that savoured of unusual severity, there had been no appeal to the 655 Home-office to interfere and commute the punishment. But, even supposing a much closer resemblance to appear between two eases, as reported in the public prints, what a notion it was that persons could take a sentence in one place, and a sentence in another, and apply to them a kind of foot-rule or deal with them, as if they could be worked out like sums in addition or subtraction—to say, the circumstances of one case correspond with those of another, but the penalty does not correspond, and, therefore, there is a gross disparity, and imputations must be cast on one or other judge! The course is unjust towards them, and they cannot defend themselves in the ordinary way; it is injurious to the administration of justice, which cannot be rendered odious without exciting the bitterest feelings of discontent among the mass of the people, and its direct tendency is to encourage a licentious contempt for the rules of law and morality. He abstained with great self-restraint from some other topics connected with the present subject. But he had touched on the censures lately thrown upon the supposed disproportion of sentences by those who give themselves credit not only for sounder views and better motives than the judges of the land, but also for a fuller knowledge of the facts of each particular case, and a clearer insight into all the numerous circumstances by which it is obvious that their discretion ought to be regulated. He was the more induced to do so, because, on a recent occasion, one of the most upright, humane, and learned judges, that ever graced the bench, he meant Mr. Justice Patteson, had been attacked by one of the leading papers of this capital, with the apparent object of driving him from the bench, on account of this supposed disproportion in respect to cases which he had disposed of in the Central Criminal Court. That learned judge had the kindness to call on him (Lord Denman) and explain the reasons which had guided him, which must have been entirely convincing to all men possessing any degree of candour and discrimination. And on these, also, he might observe, that no attempt was made to alter any of them by application to the Home Office, except in one instance, where the learned judge himself had seen reason to advise a mitigation. He was much obliged to their Lordships for the attention which they had been pleased to give to his statement. His only wish was, that the truth might be understood, and he trusted 656 their Lordships and the public would be of opinion, that nothing bad been done on the occasion on which so much invective had been lavished, at all unworthy of a Member of their Lordships' House, or of a judge performing his duty faithfully to his Queen and his country. The noble and learned Lord then presented a petition from certain individuals, praying, that the evidence of persons who had conscientious scruples against taking oaths, should be received in courts of justice upon their affirmation