§ Lord Denman
hoped it was not very unreasonable to request their Lordships' attention to a matter relating to himself, which he thought likely to have passed away, but which had excited a great deal of discussion in Parliament and in the newspapers. He saw on the Votes of the House of Commons that were lying on their Lordships' Table the following notice:—"Mr. Ferrand, to put the following question to the Secretary of State for the Home Department; "That as Lord Chief Justice Denman has declared it to be the unanimous opinion of the Judges of the Court of Queen's Bench,—'that there are some cases in which it is necessary to break in upon an act of Parliament, and upon that which may have existed from all time; and has also declared that it is the mother who is the proper party to have the custody of all her children under seven years of age, and that it is not for the benefit of the mother, but for the protection of the children;' and that he thinks that 'the Judges ought to crush the first attempt to depart from that principle, and that it is of the highest importance that it should be considered the undoubted law of the land'—of the highest importance whether the Government intend to insert a clause in the New Poor-law Bill, for the purpose of prohibiting the separation of Mother and Child, if they should become the inmates of a workhouse.' "This extraordinary declaration, said to have received the unanimous concurrence of the Judges of the Court of Queen's Bench, had been put conspicuously forward in a leading news-paper as a truth. It would be extraordinary indeed if such an opinion had pro- 994 ceeded from any judge. He found that his right hon. Friend the Secretary for the Home Department had already answered elsewhere, and on authority, for the Judges of the Court of Queen's Bench, that no such opinion had ever fallen from their lips. But still he perceived that the statement was persevered in, and he had just seen an article occupying three columns of The Times newspaper of that morning, in which it was asserted, that he (Lord Denman) had delivered this opinion, and evidence was adduced to show the accuracy of the report. It was then observed, that the reporter who noted down this opinion, on hearing it, turned round to his brother-reporter and said to bins, "Denman has blurted out a great truth!" No doubt this remark must be received as a compliment, and if he (Lord Denman) had given utterance to a great truth in Court he should be very glad of it. He was perfectly sure that, in noticing this matter, no idea existed of saying anything unkind with reference to him, for a leading article on the subject appeared in that most eminent and highly respectable paper The Times, approving the judgment, such as it was supposed to be, and vindicating the right of ministers of the law to decide in defiance of an Act of Parliament when they thought proper. The story of one reporter turning round and making the laudatory remark to another, on this occasion, reminded him of a certain character, in ancient times, who thought much less of the people than he (Lord Denman) did, and who, when he was applauded, in addressing a large assembly, always turned round and asked the person next him—"Have I uttered any great nonsense? Have I stated anything quite beside the question? Have I committed myself by something eminently wrong?" He (Lord Denman) felt the greatest deference for public opinion, and he wished to show the greatest respect for those who undertook to lead and inform the public mind; but it astonished him, considering The Times was a newspaper of such great intelligence and talent, that any person employed on its establishment should, when a Judge was supposed to have uttered very great nonsense, turn round and say "he has blurted out a great truth." To find the nonsense repeated and deliberately defended, was even more surprising. The case before, the Court on the occasion 995 alluded to was of the most simple nature. Certain justices thought themselves warranted in removing a child from the mother, within the age of fourteen, because the mother had given her consent to such removal. The Judges of the Queen's Bench were all of opinion that the mother was bound in duty to take care of her child; and that no consent of hers would justify the magistracy in removing the child from that protection which was provided for the child's benefit, not for the mother's. That was held to be the law of the land. A case of "The King v. Bennett," had, however, been cited in the argument, which turned on the operation of the 59th of George 3rd. In that case the question was, whether an Irish female pauper, having a bastard child born in England, within the age of nurture, could be removed and passed into Ireland with her child. Lord Tenterden had said, "Great inconvenience would certainly arise in separating the mother from the child: but that inconvenience must be endured; if the law does not give authority for the removal of the child, it roust remain where it is." Lord Tenterden added in a subsequent part of his judgment—"The Statute authorised and required the parties to remove the mother to Ireland, who had no settlement in England; but they had no power to remove the child who had a settlement in England. The law gives the magistrates no power to remove the child to Ireland. There may be hardship in removing the mother without the child, but the act is imperative, and it must be obeyed." Precisely in the same spirit, he (Lord Denman), in the observations which he recently had made, said, "There may be some acts of Parliament by the operation of which it may be necessary to depart from the ancient rule of law; but in this case there is no such necessity. The old rule is in operation, and no Act of Parliament requires us to go against it." The plain intimation was, that if there had been such an Act, it must have been obeyed, notwithstanding the ancient rule;—that is, the direct contrary of what he was supposed to have declared—that was the unanimous opinion of all the Judges. He had had no communication with the right hon. Secretary of State, nor with his brothers of the Court of Queen's Bench, on this subject; but with respect to the latter, he must bear his testimony, that they 996 never uttered a word having the tendency imputed. He might be allowed to observe, that he had received a letter from Mr. Adolphus (the reporter of the Court), in which that gentleman stated what had actually passed—namely, "that in some cases, to meet the provisions of a statute, it was necessary to break in upon an established principle; but that no such necessity existed here." His note was short and general, but he added, "that, if anything had been stated, purporting that the Judges ought in any case to go against the law, it certainly would not have escaped his memory."