E. p. 46.
On a matter of so grave a character as that referred to in this place it seems necessary to give at rather more length that part of Lord Denman’s judgment (in the case of Dr. Hampden in the Queen’s Bench) delivered on the 1st of February, 1848, which states his reasons for refusing to let the writ issue, when two of the judges of his court were in favour of doing so.
“Now comes the question which presses most on my mind. Having stated my reasons for the opinion which I deliberately form, and conscientiously entertain that this has never been at any time the law in the Church of England, I must be of opinion that the court ought to refuse the writ of mandamus; but upon that opinion I have had the greatest difficulty, and have felt the greatest possible hesitation in acting, because I feel the authority of my two learned brothers, and the ungracious appearance of refusing the opportunity of inquiry. In any ordinary set of circumstances, in the case of an inclosure, of a railway, or matter of property, we should have no question what ever that the doubt of any one on the bench would have made further inquiry desirable. I should have instantly agreed. A writ of error would lie in that case to correct any opinion that might be shown on more discussion to be erroneous. But every judge must act on his own conviction. I own that my opinion is so entirely settled, and, I must say, so entirely unchanged by what I have heard of the argument to-day, that feeling the utmost disposition to do all that can be done to show my respect for my learned brothers, I do not think that I can consent to say for my part that this writ ought to go. I think it ought not. * * * * * I am satisfied that the only effect would be to keep alive the dreadful agitation and frightful state of religious, or rather, let me say, theological animosity, which it is impossible not to observe in this country. There would be a delay of at least two years; probably four more days would be consumed in argument, and we cannot tell how much more when it would come into the court of error. The bishopric all that time would be vacant, perhaps other vacancies might occur, and no doubt the example here set would be followed; and in every case I should expect, in the excited state of men’s minds, that the archbishop would be called upon to summon all mankind, to hear whether they had anything to say against the bishop elect, and to open a court, that would probably never be closed.”
* * * * *
“Now, under all these considerations, feeling the utmost respect for my learned brethren, and the greatest regret that we do not take the same view, I must own that I feel some deference is due also to the high person who is named as the defendant in this rule. Some deference is due to those who certify the fitness of Bishop Hampden for the office to which he is elected. Still more deference is due to the peace of the Church, and to the tranquillity of the State. It seems to me that we should be putting every thing to hazard and leading to consequences which it is impossible to foresee, if we, who are firmly convinced that there is no such law as that upon which these parties seek to act, encouraged the smallest doubt as to its existence. Reserving my opinion on that point till I had heard all the observations of my learned brothers, and keeping my mind open to the last, and free to say that this is a question which ought to be discussed, I must fairly say, with all respect for my brother Coleridge’s admirable argument, that it has confirmed me in the opinion of the danger of exposing the Act of Parliament, and the most simple construction of the plainest language, and the most inveterate and universal opinion on its effect, to the speculations of those who will bring their forgotten books down, and wipe off the cobwebs from decretals and canons, before they can find one argument for disturbing the settled practice of three hundred years.
“In my opinion this rule ought to be discharged.”—Rule discharged. Lord Denman’s Judgment in the Hampden case. Report, by R. Jebb, Esq. pp. 495, 496.
I have no doubt at all, that the honest conviction of the Lord Chief Justice was, that his view of the law was the sound one; nor any, that he thought he was doing rightly in using his power to refuse the writ; but there can be no doubt on the other hand (for he explicitly avows it) that the reasons upon which he arrived at such conclusion, and reversed the universal practice not only of his own court but of every court in Westminster Hall, were a calculation of consequences, and a regard to future contingencies, as they seemed dangerous or advantageous to his eye: and this is precisely the point of view in which I have desired to lay the matter before my readers in the body of my letter. It will be observed that in nothing which I have here said am I impugning Lord Denman’s Law, or giving any opinion as to the soundness of his view of the matter then in question before the Court of Queen’s Bench. I appeal not to any matter of opinion, but to matter of fact; to the incontestible fact, that all the precedents of that and every other court of law in this country for a very long period, were set aside by his Lordship on that occasion. I give no opinion at all, save that to do such a thing upon a ground of expediency, applying, as it appeared to him, to the individual case, was a course calculated to shake persons’ confidence in the administration of the law in cases where the Church is affected. Let no man therefore say, “What are you, to set up your opinion against the Chief Justice of the Queen’s Bench?” I say, again, I set up no opinion, I appeal to no matter of opinion at all, but to the undisputed matter of fact, that the usage of the court was at any rate so set aside and set at naught.