If regard is had to these considerations, we think that it would be almost impossible to overrate Lord Wensleydale’s fitness for the office which he held for upwards of twenty-eight years. To the most vigorous good sense and very great powers of comprehension and abstraction, he added a degree of respect for the letter of the law, and a dexterity in investigating all questions relating to the meanings of words and the distinctions between them, which gave many persons the impression that he was a word-catcher and a crotchet-hunter. Those, however, who are familiar with his judgments must be well aware of the injustice of this imputation. That the constitution of his mind eminently fitted him for such inquiries is no doubt true, but it is no less true that the duties of his position constantly called upon him to enter into them; and it is also true that, though no special pleader could vie with him in subtlety, no judge on the bench has laid down broader or sounder principles of law. In that labyrinth of reports in which legal engineers are continually mining and countermining each other, no more solid materials are to be found than those which the judgments of Baron Parke supply. They have one title to respect which is almost peculiar to themselves--the inviolable fidelity with which they observe the limits of judicial legislation. They expound the law of the land in the clearest and soundest manner; but, even in cases in which its policy might seem questionable, they never attempt to get rid of it by a side-wind. Every principle which they embed may be relied upon, not as the private opinion of the Judge who delivered them, but as his bonâ fide enunciation of the doctrines of English law. That Lord Wensleydale sympathized strongly with the peculiarities of the system which he administered, may be admitted; but his powers were quite as conspicuous in the higher as in the lower portions of his duty.
The part of his career which most strikingly illustrates these remarks is his connexion with that system of special pleading which flourished from the enactment of what were called the New Rules to that of the Common Law Procedure Act of 1852. This is not the place to discuss the merits of that system referred to. The few persons who are capable of appreciating it may see Lord Wensleydale's subtleties illustrated, with a mixture of wit and legal learning altogether extraordinary, in the “Crogate Case"—in which the same hand to which we owe a well-known Bill for committing the government of the country to the Times has drawn, under the title of "Baron Surrebutter," a sketch which no lawyer can mistake. Without contradicting such an authority, we may be permitted to an that, if men always meant what they said, the whole of what they said, and nothing but what they said--if language were perfectly free from ambiguity, and if people invariably understood all the stages of the transactions in which they engage —the system of special pleading would very often have been the means of administering substantial justice without the expense of a trial. Of course, the fact that these suppositious are not only not true, but are more like the reverse of the truth, was, independently of the numerous fictions and anomalies by which special pleading was disfigured, an excellent reason for introducing very great changes into our code of procedure; but it is no imputation upon Lord Wensleydale that he used the exquisitely delicate instrument which the law put into his hand with exquisite delicacy. If, instead of a single instrument, used by a single hand, dentists had to employ an engine of the most complicated kind, which could only be worked by five or six people all acting independently of each other, upon instructions which it was the labour of a lifetime to understand, and which could only be carried out by extraordinary skill in manipulation, it would be very hard to charge the broken jaws which would inevitably follow upon the skill of the single operator who understood and executed his instructions, and not upon the misfortune or awkwardness of the four or five others who, through the infirmity of the human understanding, had not been equally successful. It was no fault of Mr. Baron Parke that he was one of the very few men who understood special pleading, though the fact that all special pleaders were not Baron Parkes was an unanswerable reason for altering the system.
No one who has been in the habit of witnessing his Lordship's administration of criminal justice, can for a moment suppose that his mind was deficient in that broad common sense which is indispensable to the due discharge of that function. The traditions of the bar have, no doubt, preserved some instances of his curious subtlety on such occasions; one legend, for example, charges him with having left to the jury seventeen questions to answer in a case of fowl-stealing. A far more general recollection will long attest the careful patience with which he examined, the minuteness with which he remembered, and the keenness with which he applied the most complicated facts. Our readers will recollect the involuntary admiration which his “just, severe judge" extorted from Tawell. It may seem, in these days, almost an impertinence to praise Lord Wensleydale’s impartiality in criminal proceedings. This opinion, however, will hardly be shared by those whose professional duty often takes them into our courts of law. The entire indifference to consequences—especially in capital cases—which is constantly impressed as a duty upon the jury, is by no means universal on the bench; nor is it every Judge who can withstand the insidious temptation of doing “substantial justice"—or, in other words, of forcing upon the jury his own view of the case, at the expense sometimes both of law and of evidence.
It has been pithily observed that the best actor is the best judge; nor can anyone doubt that there is much truth in the remark, who considers the nature of the administration of justice in England, and the associations with which it is surrounded. In many respects, Lord Wensleydale amply complied with this requisition. Who that ever saw it can forget the massive face, grand in its rough-hewn homeliness, or the sparkling eyes, keener and more intelligent at seventy than most men's at twenty-five? Lord Wensleydale was no less fortunate in possessing the bodily energy which is so essential to legal eminence, and so sure a passport to the admiration of Englishmen. The fifteen Judges are probably fifteen of the strongest men in England. Many of our readers will remember how, on one occasion, the Court of Queen's Bench had to enforce upon their chief the propriety of consideration for less iron nerves than his own, by ranting a new trial in a case in which he insisted upon sitting at night, in order that he might get the business done before opening the commission at the next assize town. Lord Wensleydale was not a whit behind Lord Campbell. Last summer, he pronounced sentence of death at midnight, at Carlisle, on the conclusion of atrial which had lasted fifteen hours, and made his appearance in court at Lancaster at ten the next morning. Only a few weeks ago, we read bitter lamentations in the assize re orts of our morning contemporaries, over the indifference to col which induced him to order all the windows in court, at Winchester, to be thrown open, and all the fires to be put out, when the thermometer stood at 20°. We hope that he will long live to enjoy his well-earned honours, and that his robust frame and vigorous mind may, for many years, do as good service to his country in the ease of Lords as they did in the Court of Exchequer, years before an of his colleagues had arrived at the bench, or before most of those who so lately practised before him had been called to the bar.
Great as may be the loss occasioned by his retirement, his place could hardly have been better supplied than it has been the promotion of his successor. In his own profession, Baron Bramwell's reputation is of a kind which renders any raise of ours altogether superfluous. We have no doubt that he will sustain on the bench the high distinction which he acquired at the bar, and we are glad to see that, in his case, as in that of Mr. Justice Willes, the Government have made an appointment no less judicious than disinterested.
Saturday Review, January 12, 1856.
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