it down as one of the first principles of the English Law, that none accused of felony should make full defence by speech of counsel. And when a Bill was in progress to remove that landmark of the British Constitution, our excellent friend, the late Mr. Justice Alan Park, told me that if that Bill passed, he would instantly resign his office. I need not mention that the Bill passed, and that most worthy and benevolent man survived it, and retained his office.

"How uncomfortable the Judges must have been when, in spite of their unanimous proclamation of opinion, a 5s. larceny ceased to be a capital crime. How many unhappy hours must they have passed when Romilly's mitigations of the penal code were all successively adopted!

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Pray impress on Lord John, as an experienced reformer, the importance of putting the last hand to his great work, at a moment when so many circumstances conspire to recommend it, and remind him that beneficial reform unreasonably postponed is thereby defeated. For my part, let my importunity be pardoned, for to me the night cometh ;' and before it finally closes, I hope not only to see good done, but, in some degree, contribute to doing it.

"Yours ever,

"DENMAN."

}

ART. VIII. LORD COTTENHAM.

ANOTHER eminent person in the legal world has paid the debt of nature since we had to lament the irreparable loss of a steady and enlightened friend to the Amendment of the Law in the late Master of the Rolls. Lord Cottenham, twice Chancellor, after filling other high offices, is no more, and though he has not left a blank in the list of legal reformers, he left few sounder lawyers, or more diligent judges behind him.

Charles Christopher Pepys was the second son of Sir W.

Weller Pepys, a Master in Chancery, and brother of Sir Lucas, well known as one of George III.'s physicians during his first malady. He married a daughter of Mr. W. Wingfield by his first wife, a sister of Lord Digby, and has left a numerous family by that lady, the eldest of whom succeeds to the Earldom, conferred upon the late Chancellor when he quitted office nine or ten months ago. At the Bar he enjoyed the reputation of a laborious and well-informed practitioner. He was an exceedingly good lawyer, having been for a considerable time in a special pleader's office before he went to an Equity draftsman. Accordingly he was better grounded in Common Law than the generality of Chancery men, although from the unfortunate division between the two sides of Westminster Hall, now of nearly fifty years' standing, he had never gone circuit, or in any other way become familiar with Nisi Prius procedure, and had thus the usual defect of being little acquainted with the rules of evidence; a defect which a man of ordinary quickness could hardly fail to get rid of in the course of a single circuit. We do not mean that he would be able to examine witnesses with safety to his client; but he would acquire the tact by which a person at once can tell whether or not any question can be put, whether or not any answer (or deposition) is admissible.

His powers as an advocate were not brilliant; but his statements were clear, and his reasoning cogent. His discretion, too, was great; and his temper at all times perfect. There could be no comparison between the effect produced upon the Court by his advocacy and that of declaimers of earnestness more vehement, and of a subtlety more dazzling. For he had quite as much energy as any occasion required; and he never forgot that he was addressing a single judge, and that judge a professional man. That he escaped the besetting sin of repetition and prolixity with which Lord Eldon's good nature first, and afterwards his inattention corrupted the Court, it would be too much to affirm. Yet few, if any, of his contemporaries were so little subject to it.

With these eminent qualifications, it is not to be wondered at that he attained very extensive practice; and as his political connexions had always been with the Whigs, although

he took no part in the struggles of party, he was, on their accession to power in 1830, appointed Solicitor-General to the Queen-Consort, Mr. John Williams (afterwards the judge) being her Majesty's Attorney. At the General Election of 1831 he was returned to Parliament by the interest of Lord Fitzwilliam, and in May, 1832, he resigned his office on the ministerial interregnum consequent upon the King refusing to create peers for the purpose of carrying the Reform Bill. When that interregnum ceased, and the Ministers resumed their places, the Queen declined to reappoint her Law Officers, on the ground of their parliamentary position making them political personages. Those offices are little more than honorary, the salary of one being 2407., and the other 1807.; and the rank of King's Counsel, which they confer, being, in the case of Messrs. Williams and Pepys, immaterial, as they already had it independent of office. To Messrs. Brougham and Denman it had been otherwise, and they on Queen Caroline's death returned to their stations without the Bar.

In spring, 1834, Mr. Pepys was made Solicitor-General on Sir J. Campbell (the present Chief Justice) succeeding Sir W. Horne as Attorney; and on Sir J. Leach's death, in the following October, he was made Master of the Rolls. Parliament being soon after dissolved, he was returned to it; but upon the government of Sir R. Peel being turned out in April, 1835, the Great Seal was put in commission, he, the Vice-Chancellor Shadwell, and Mr. Justice Bosanquet being the Lords Commissioners. In January, 1836, he was made Chancellor, and raised to the Peerage. But it was with some difficulty that he could be prevailed on to quit the ease and security of the Rolls, for the turmoil of political life, and the precarious possession of the Great Seal.

It was now that the distinguishing merits of Lord Cottenham were fully appreciated. His eminence as an advocate, in the peculiar sense which we have pointed out, and his greater qualities as a lawyer, were calculated to form a judge of no ordinary kind; and accordingly he gave great satisfaction from the first day that he took his seat at the Rolls, well justifying the eulogy pronounced on him by Lord Brougham,

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on quitting the Great Seal, that he had made a present of the greatest value to the profession and the public in raising the late Solicitor-General to the Bench. When he became Chancellor, the sphere of his usefulness was, of course, extended, both in his own Court and in the House of Lords. Nor did any one raise a question touching his merits, save in one particular, at least, during his first chancellorship; he was supposed to be somewhat wedded to his own opinion, and too difficult to move when he had once made up his mind. But, then, it must be added, that he did not form his opinion hastily; there was nothing of rashness in his composition, in any way; and he had no prejudices or partialities towards counsel,—the only bias that ever influences Judges to deviate from strict justice; between party and party no one ever charges them with partiality.

We have mentioned his extreme unwillingness to vary the opinion at which he had once arrived, as one ground of complaint. There was another, but it chiefly applied to his second period, when he returned to the Great Seal in 1846. The habit, the very bad habit, of delaying his judgments, had grown upon him exceedingly. Most of the cases of importance, almost all those of difficulty, he allowed to stand over to the long vacation. During that recess, he had no doubt more ample time for examining the details of fact, and for considering the arguments adduced, and the authorities cited. He had also more leisure for preparing the form of his judgment,for reducing it to writing. But, unhappily, the price paid for this postponement was not trifling; many facts were forgotten, many reasons overlooked. Nay, not always were the opinions remembered which had been very confidently expressed in the course of the arguments: and instances are not wanting of material steps in the procedure having escaped the recollection of the judge, whose opinion might have been varied, had those steps been present to his mind. The habit to which we refer, is a most pernicious one. Nothing can make it safe to be indulged, but a constant registry in the judge's notes of the impression made at each stage of the argument, by the reasoning and

Mylne and Craig.

the illustrations of counsel: nor even then is it always without risk of creating fatal error, while of course it is objectionable on the manifest ground that the time occupied, and the cost incurred, by the labour of the advocate become more or less thrown away in consequence of the judge's delay to perform his office. Sir E. Sugden, probably moved by such considerations as these, once, if we rightly remember, proposed that, after a certain number of cases had been heard out, the Court should be peremptorily closed, until these, or at least a large proportion of them, had been decided.

It was further remarked, that partly, no doubt, from declining health, Lord Cotttenham gave less satisfaction in other respects during the latter period of his public life. But the principal complaint was the delay in giving his judgments; and this, in a certain degree, proceeded from the circumstance of his time, when not professionally employed, always hanging somewhat heavily upon his hands. During the long vacation, he had nothing to occupy him but reading the papers or preparing his notes. Unlike Lord Langdale, who retained to the last his taste for literary and scientific pursuits, Lord Cottenham had little or no taste for reading, and was entirely a professional man. It was thus quite immaterial to him personally, whether he disposed of a case soon after he had heard it, or reserved it for the ensuing recess; just as it was also immaterial to him personally, whether he then finished it in a couple of days, or in as many weeks. He had time enough, because he had nothing else to do. But no little injury arose from hence to the suitors: and it is certain that, while many cases of importance might have been decided far better without the delay, some remained undecided, to be heard over again, to the serious inconvenience, and, indeed, heavy loss, of the parties. We have, without hesitation, noted thé only judicial imperfections of this able and eminent judge. No one can read the Reports during the period of his Chancellorships, without perceiving how greatly his merits preponderate over any thing that can be alleged against him. We have often heard it insinuated that there was a prejudice in his mind against one of the learned judges, from whom appeals were brought before him. We have examined