The Sun.
London, England, 1841-04-13 00:00:00

ORB DENMAN'S DEFENCE

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Mr Chambers, the counsel for the prosecution, had
said that if the Chief Justice permitted of a private ar-
-angement he had no power to object to that course,
Lord Denman was reported to have given his permission
accordingly, and advised a substantial compensation.
Upon this representation was grounded the charge, not
of arbitrarily stopping the proceedings and compelling
compensation, but of giving permission for a compro-
mise, which the counsel for the prosecution had declared
he could not object to if so sanctioned.
Such was the report and the charge founded upon it ;
but Lord Denman's account of what he said varies
from the report in the Chronicle, and of course we are
bound to take his version, which is also that of the
`Times.* Upon the plea of guilty, and the expression
of the wish to make atonement, his Lordship states
that—
" At least they act right now ; let their plea be with-
drawn and a plea of guilty be recorded. I hope the case
is ofsuch a nature as to admit of its being settled by pri-
vate reparation."
Now really there appears to us to be no very material
difference between the effect of these words and that of
the expressions in the other report.
There is, indeed, wonderful simplicity in the remark
" at least they act right now," as if prisoners at the bar
with a clear case against them were not usually in a very
penitent mood, and ready to do anything to escape
punishment.
As to the character of the case Lord Denman de-
clares complete ignorance of it. That he never read,
and never heard, of an outrage which was the subject
of comment in every newspaper, and of conversation in
every company, is extraordinary, but we must believe
it, of course, as Lord Denman says it.
Lord Denman's justification, then, ;amounts to this,
that he knew nothing whatever of the case, and that he
allowed of a private arrangement in the hope that the
case was of a nature to admit of it. Why, he may enter-
tain the same hope in every case of indictment for assault
of which he knows nothing, and with this speech for a for-
mula, permission for private arrangements may pass as
matter of course. Surely it was the duty of the Chief
Justice to have ascertained that the case was of a
nature to allow of compromise before he gave permis-
sion for such an arrangement.
Lord Denman explains that in cases removed by
certiorari the depositions are not in the bands of the
Judge ; but without the depositions the Chief Justice
might surely have seen enough, prima facie, in the in-
dictment to show that the case was not of a nature for
_ compensation, it being for an assault committed on an
officer in the execution of his duty. Now the same
considerations which, for the preservation of the disci-
pline and conduct of the Police-office, cause the Police
Commissioners and the Secretary for the Home De-
partment to discountenance compensation to maltreated
officers should surely have occurred to the Lord Chief
Justice, and it should surely have appeared to him at
the first glance at the indictment, that inasmuch as it
was for an assault on an officer it was not a case for
compromise.
In justification of the compromise he would have
permitted, Lord Denman argues that in cases or
private injury it is better that compensation should
be made to the sufferer than that a fine should be
paid to the public treasury. It may be so ; but
what does the law, which the Chief Justice is ap•
pointed to .administer, direct ? The law makes the
wrong proceeded against by indictment penal ; the
Chief Juetice, whose duty it is to administer the law
things limper to bring about the evasion of it by an ar-
ray gement between the parties, in which the injured as-
se, ;sea his own damages. The proceeding is thus by
it dictment, but virtually the result is the civil remedy
e extorted by the fear of punishment, The prosecutor
has chosen his form of procedesre, the law has pre-
, scribed the nature of the redress, but the Judge de-
e 'eats the intentiou of OA law. But here we may be
t )141 that the Chief Justice was aware that the injured
is an had not been allowed any option in the mode of
ocedure, and that the Commissioners of Police
„ cried on the prosecution ; but if Lord Denman
kn ew this, he wilfully attempted to thwart the ends of
lus tice sought by the Commissioners.
Che law is imperfect, we agree : the law should
alto .v of both the criminal and civil remedy concur-
rent 'y
—the criminal proceeding for the public example
civil for the reparation for the injury to the in-
dividt "d• And feeling the defect of the law, why does
wit 'rd Denman, in his place in the House of Lot ds,
p opesk , .e desirable improvement in it ? Would it
o et be ne ire becoming on his part to amend the law in
ti se :Isetieslature, than to set the example of evading
in, hi 3 nigh seat of judicature ?

A s it is, magistrates are too much disposed to favour
the l orivatc., arrangement of matters of criminal prosecu-
tion, and it is to be observed, that in this practice the
first . regard must be to the wealth of the parties. if
tan p rosecutor be rich and the prisoner poor, no pri-
vate ...Irrangeincut can he thought of. The det'endant
inusl -.; be in, a condition to prefer paying to suffering in
pers. on, or the expedient will never be suggested.
ord Denman, evidently alluding to the comparison
in th is journal bctween the sentence of fifteen years'
trans oortation nn Stephen Hodge, and the proposed
privet c arrangement of the more savage and violent
outtak -o at Hampton Wick, treats Mr. Justice Erskine
as atta eked, and is good enough to undertake his de-
fence. There bas been no attack on Mr. Justice Ers-
kine, ne' itopugnment of the fitness of the sentence al-
luded Li ; it appears, undoubtedly, a heavy punishment,
but fur- the protection of the police against such out-
rages t I.le severity may be thoroughly necessary.
Lord .Denman

Thos; TAt it. indeed, most extraordinary that ore man
could Iti, ovi that one. case,
more
which the evidence had not
been gi, en, was muck).b heinous than another, the
ev;dence on. which Was ull, cri.,,,ha,—(licar, hear.) He
wa® at a li ~.,s to conceive whati
ignorance aonncee hvaid
theto fmikets
such a star cntent when ho was in
of the case
The facts of Lord Waldegrave's
known to a'3 the world except Lora
dasnee
ninhave been
facts in evil :nee before a Magistrate thataan police
the
officer in t: to esJcution of his duty was wantonly
assaulted, be at 'to a state of insensibility, and that
his life was in danger for some days. To the indict-
ment for this outrage Lord Waldegrave and Capt.
Duff have plea ided guilty ; it is therefore idle to pre-
tend that the' ~e is any question or uncertainty about
the offence, c : the character of it. We believe that

. .
any new it Ahrmation that can be produced, not as to
the act•, but as to the melancholy results, will make
the case appear graver than it has yet been sup-
posed i it its consequences, for the sufferer, as we lately
menti'Jned, is reported to be reduced to a state of hope-
less
But Lord Denman does not only deny the data for
.our comparison, he goes farther ; he scouts the idea of
c omparing the sentences for the same offences, and re-
quiring anything approaching to equality in the mea-
su res of justice.
"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.( Hear, bear)—to say here are the
circumstances of one case, and there are the circumstances
of another, and that therefore there was a gross disparity,
and theft to cast imputations upon a Judge who could nut
reply in an ordinary way, like other men."
Now we will promise Lord Denman to make this
pas sage the standing motto of tho comparisons which,
es the occasions arise, we shall continue to institute
bet ween the measures of justice dealt out to rich and

poor.
'The Chronicle excellently remarks on the Chief Jus-
tice's contempt for those who have a notion that for
simiiar offences there should not be very dissimilar sen-
tence►;

We are at a loss to understand what the Noble and
Learned Lord means by objecting to the taking a sentence
in one place and a sentence in another, and saying here
are the circumstances of one case and there are the cir-
cumstances of another, and under the same circumstances
t
there is a great disparity in the sentences. This 13 say-
ing, in so many words, that there shall be no criminal law.
judge
should Lord Denman mean to contend that a criminal
should be governed altogether by discretion—that the
public should pay no more attention to the sentences than
if they were determined by the throwing of dice ? Why
write commentaries on our criminal law, and note the cases

The report of the Times is much more meagre tnd
less intelligible than that of the Chronicle: and at the
?lose of it tkdiTimes' reporter complains that he could not
distinctly hear what passed between the Judge and the
Coosa

(From the Examiner.)
he Lord Chief Justice 's long speech in defence of
conduct upon the case of Lord Waldegrave, would
e been reducei to a very few words if he had con.
d himself strictly to what he had to state in explana-
a of tl:e 11-latter. A dozen words conveys all that he
to offer in self-justification or palliation ; the rest of
a. -speech was given up to the expression of soreness,
something worse.
Lord Denman began by overstating the charge against
n, a common contrivance for making the most of an
perfect defence. He said that he had been accused
having stopped the proceedings against Captain Duff
I Lord Waldegrave, and compelled a compromise.
,is is not the true representation of the charge, whieh
:s, that Lord Denman had recommended a compro-
!se, and that his recommendation would have pre-
and what was due to public justice would have
eu evaded, if the Commissioners of Police and the
linister for the Home Department had not refused to
°lament to the Chief Justice's recommendation of a com-
romise. We reprint the extract from the Chronicle's
aw report, open which our remarks were founded :
The jury having been thus completed, Sir F. Pollock,
ho appeared for a defendant named Duff, said that his
c lient and (he believed he spoke as well for his learned
riend Mr. Thesiger as for himself) Mr. Thesiget's client
were willing to make the first reparation, by withdrawing
th a plea of not guilty and pleading guilty.—Mr. Thesiger
sr4id that they had, after full consideration, determined to
,'Adopt this course.—Mr. Chambers said that he had no
power to object to this course, if his Lordship, in his dis-
cretion, permitted it to be adopted.—Lord Denman said
he should permit it, and his Lordship added a suggestion of
a substantial compensation to the party injured. —Sir F.
Pollock said that the defendants were deeply indebted to
the Lord Chief Justice for baring thrown out this sugges-
tion.