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JAMES MACKINTOSH AND EARLY NINETEENTH-CENTURY CRIMINAL LAW

Published online by Cambridge University Press:  24 July 2015

PHILIP HANDLER
PHILIP HANDLER*
Affiliation:
University of Manchester
*
School of Law, University of Manchester, Oxford Road, Manchester, m13 9pl  philip.handler@manchester.ac.uk
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Abstract

This article examines the criminal law reform career of James Mackintosh (1765–1832). As Recorder of Bombay (1804–11), writer and Whig MP (1813–32), Mackintosh engaged with diverse aspects of criminal law. His view of the organic relationship between law, society, and public opinion, which was shaped by his Scottish intellectual background and Foxite Whig politics, was distinct from the radical and liberal political perspectives most often associated with criminal law reform. The article traces the implications of Mackintosh's approach for the practice of politics and legislation in the period and suggests cause to revise assessments of its outcomes.

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Articles
Information
The Historical Journal , Volume 58 , Issue 3 , September 2015 , pp. 757 - 779
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Copyright © Cambridge University Press 2015 

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References

1 S. Romilly, The speeches of Sir Samuel Romilly in the House of Commons (2 vols., London, 1820), i, pp. 127–8.

2 2 Parliamentary Debates (PD) 9, 418, 21 May 1823.

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5 See in particular the recent studies of Robert Peel: B. Hilton, ‘The gallows and Mr Peel’, in T. Blanning and D. Cannadine, eds., History and biography essays in honour of Derek Beales (Cambridge, 1996), pp. 88–112; S. Devereaux, ‘Peel, pardon and punishment: the Recorder's report revisited’, in S. Devereaux and P. Griffiths, eds., Punishing the English (Basingstoke, 2004), pp. 258–84. See also Gatrell, The hanging tree, pp. 566–85.

6 For biographical information, see J. Mackintosh, Memoirs of the life of the right honourable Sir James Mackintosh, ed. R. Mackintosh (2 vols., London, 1836); P. O'Leary, Sir James Mackintosh: the Whig Cicero (Aberdeen, 1989); J. Rendall, ‘The political ideas and activities of James Mackintosh 1765–1832’ (Ph.D. thesis, London, 1972); C. Finlay, ‘Mackintosh, Sir James, of Kyllachy (1765–1832)’, Oxford dictionary of national biography, online edn, Jan. 2010.

7 He also stood unsuccessfully for the post of Recorder of London in 1824. See Times 1, 12 Apr. 1824; Gatrell, The hanging tree, pp. 509–10.

8 McGowen, R., ‘The image of justice and reform of the criminal law in early nineteenth-century England’, Buff. L. Rev., 32 (1983), pp. 89–125Google Scholar, at pp. 97–8. See also L. Radzinowicz, A history of English criminal law and its administration from 1750: the movement for reform, 1750–1833, i (London, 1948); R. Follett, Evangelicalism, penal theory, and the politics of criminal law reform in England, 1808–1830 (New York, NY, 2000); J. Hostettler, The politics of criminal law reform in the nineteenth century (Chichester, 1992).

9 See P. Mandler, Aristocratic government in the age of reform: Whigs and Liberals, 1830–1852 (Oxford, 1990); R. Brent, Liberal Anglican politics: Whiggery, religion and reform, 1830–1841 (Oxford, 1987); J. Parry, The rise and fall of Liberal government in Victorian Britain (New Haven, CT, 1993); W. Hay, The Whig revival, 1808–1830 (Basingstoke, 2005).

10 For the argument in favour of Peel as a liberal law reformer, see Hilton, ‘The gallows and Mr Peel’.

11 See O'Leary, Sir James Mackintosh, pp. 185–6; Finlay, ‘Mackintosh’.

12 J. Mackintosh, Vindiciae Gallicae: defence of the French Revolution and its English admirers (London, 1791).

13 K. Haakonssen, Natural law and moral philosophy: from Grotius to the Scottish Enlightenment (Cambridge, 1996), p. 265.

14 In 1785, Mackintosh precociously put himself forward for the chair that went to Stewart (O'Leary, Sir James Mackintosh, p. 10).

15 J. Mackintosh, Dissertation on the progress of ethical philosophy, in J. Mackintosh, The Miscellaneous works of the right honourable Sir James Mackintosh (3 vols., London, 1854), i, p. 215. For the influence of Stewart, see S. Collini, D. Winch, and J. Burrow, That noble science of politics: a study of nineteenth-century intellectual history (Cambridge, 1983), pp. 23–62; Haakonssen, K. and Wood, P., ‘Dugald Stewart: his development in British and European context, introduction’ (Special Issue) History of European Ideas, 38 (2012), pp. 1–4CrossRefGoogle Scholar.

16 See Collini, Winch, and Burrow, Noble science, pp. 39–44; Haakonssen, Natural law, pp. 232–48.

17 See J. Mackintosh, A discourse on the law of nature and nations, in Mackintosh, Works, i, pp. 375–6. For a detailed assessment of Mackintosh's relation to Stewart, see, Haakonssen, Natural law, pp. 265–93.

18 Mackintosh expressed his support in Vindiciae Gallicae but changed his position over the course of the 1790s. See Rendall, ‘Political ideas’, pp. 30–101; S. Deane, The French Revolution and Enlightenment in England, 1789–1832 (Cambridge, MA, 1988), pp. 43–57.

19 For the nature and pervasive influence of this ideology, see B. Hilton, A mad, bad and dangerous people?: England 1783–1846 (Oxford, 2006), pp. 309–71.

20 See Radzinowicz, History, pp. 268–395.

21 On the criminal law codification debates, see Farmer, L., ‘Reconstructing the English codification debate: the Criminal Law Commissioners, 1833–1845’, Law and History Review, 18 (2000) pp. 397–426Google Scholar. Lobban, M., ‘How Benthamic was the Criminal Law Commission?’ Law and History Review, 18 (2000), pp. 427–32CrossRefGoogle Scholar.

22 See B. Hilton, The age of atonement: the influence of evangelicalism on social and economic thought, 1795–1865 (Oxford, 1988).

23 ‘Penal laws in states, like those of the Divine Legislator, indicate not hatred to those whom they are proclaimed, for every man is at liberty not to break them.’ H. More, Christian morals (4th edn, London, 1813), i, pp. 69–70, quoted in Hilton, A mad, bad and dangerous people, p. 320.

24 M. Wiener, Reconstructing the criminal: culture, law and policy in England, 1830–1914 (Cambridge, 1990), p. 65. For a similar conclusion, see J. Beattie, Crime and the courts in England, 1660–1800 (Princeton, NJ, 1986), p. 636.

25 See Radzinowicz, History, pp. 526–66.

26 His disillusionment with Bombay prompted him to think of other possible territories for reform, one of which was Botany Bay, see Mackintosh to Sharp, 15 July 1807, Memoirs, i, pp. 342–3.

27 See J. Bentham to E. Dumont (Jan. 1804), J. Bentham to S. Bentham (Sept. 1804), J. Bentham to J. Mackintosh (1808), in J. Dinwiddy, ed., The correspondence of Jeremy Bentham, vii (Oxford, 1998), pp. 258–9, 278–9, 464–6.

28 Mackintosh to Dumont, 18 Dec. 1806, Bibliothèque Publique et universitaire de Genève, Dumont papers, 33/3, fos. 1–3, as quoted in Rendall, ‘Political ideas’, p. 176. In 1807, he expressed his gratitude to ‘Bentham and Dumont, not only for the instruction which I have received from them, but perhaps still more for the bent which they have given my mind.’ Mackintosh to Sharp, 14 Aug. 1804, Memoirs, i, p. 215. He also expressed disappointment that, as a new prison had recently been built in Bombay, he would have no opportunity to establish one based on Bentham's panopticon (Mackintosh, Memoirs, i, pp. 210, 215).

29 A notable exception is Hilton's persuasive reassessment of Peel's credentials as a criminal law reformer in which he argues that Peel's approach was in many respects more Benthamite than Mackintosh's. See Hilton, ‘The gallows and Mr Peel’, pp. 102–3.

30 W. Thomas, The philosophic radicals: nine studies in theory and practice, 1817–1841 (Oxford, 1979), p. 125.

31 Mackintosh, Dissertation, p. 200.

32 On the importance of feeling and sympathy in the early nineteenth-century debates on criminal law, see McGowen, R., ‘A powerful sympathy: terror, the prison, and humanitarian reform in early nineteenth-century Britain’, Journal of British Studies, 25 (1986), pp. 312–34CrossRefGoogle Scholar.

33 Mackintosh, Dissertation, p. 202.

34 See Collini, Winch, and Burrow, Noble science, pp. 43–5, Haakonssen, Natural law, pp. 264–5.

35 In 1808, Mackintosh declared Bentham's scheme for judicial reform in Scotland as ‘Profound – original – useless!’, Mackintosh, Memoirs, ii, p. 404. See also Mackintosh, J. ‘Universal suffrage’, Edinburgh Review, 31 (1818), pp. 165–203Google Scholar; Collini, Winch, and Burrow, Noble science, pp. 97–9.

36 For Mackintosh's time in Bombay, see O'Leary, Sir James Mackintosh, pp. 73–103; Rendall, ‘Political ideas’, pp. 164–215.

37 Judicial Proceedings of Bombay, British Library (BL) India Office Records, P397/38, fos. 1436–58, as cited in Rendall, ‘Political ideas’, p. 176.

38 Mackintosh, Memoirs, i, p. 215. In 1811, he sentenced an English soldier to be hanged for what Mackintosh described as the ‘cruel murder of a mean Hindu’. Mackintosh, Memoirs, ii, pp. 116–17.

39 For details of Bentham's classificatory scheme, see J. Bentham, An introduction to the principles of morals and legislation (1789), ed. J. H. Burns and H. L. A. Hart, reprinted with a new introduction by F. Rosen (Oxford, 1996). For discussion of Benthamite legislative schemes in the nineteenth century, see K. Smith, ‘Criminal law’, in W. Cornish, S. Anderson, R. Cocks, M. Lobban, P. Polden, and K. Smith, The Oxford history of the laws of England, xi–xiii: 1820–1914 (Oxford, 2010), xiii, pp. 122–3.

40 Bentham's views on capital punishments were set out in three essays written in 1775, 1809, and 1830. The essays of 1775 and 1830 were integrated into, and published as, ‘Principles of penal law’, in J. Bentham and J. Bowring, The works of Jeremy Bentham (11 vols. Edinburgh, 1843), i, pp. 441–50, 525–32. The 1809 essay was not published: ‘Law versus arbitrary power: a hatchet for Paley's net’, University College London, Bentham manuscripts box 107, fo. 259. See Crimmins, J. E., ‘A hatchet for Paley's net: Bentham on capital punishment and judicial discretion’, Can. J. L. & Jurisprudence, 1 (1988), pp. 63–73CrossRefGoogle Scholar.

41 Mackintosh papers, BL Add. MS 78775A, fo. 77 ‘Notes on criminal law’ (1823). See also Mackintosh, Memoirs, ii, p. 371.

42 2 PD 9, 404–5, 21 May 1823. In his notes on criminal law, he designated as a ‘false principle’: ‘That the criminal generally acts deliberately and calculating the consequences of his crime weighing advantages against punishment’, Mackintosh papers, BL Add. MS 78775A, fo. 77, ‘Notes on criminal law’ (1823).

43 This is not to suggest that such schemes made no allowance for judicial discretion. Bentham, for example, accepted the need for some, albeit limited, flexibility in sentencing; see Bentham, ‘Principles of penal law’, pp. 516–17.

44 The whole proceedings on the trial of Robert Henshaw (London, 1807), pp. 240–3. See further BL Add. MS 78763, Mackintosh to Moore, 1 Mar. 1806, fo. 161; O'Leary, Sir James Mackintosh, p. 80.

45 Mackintosh, Memoirs, ii, pp. 16–17.

46 See Deane, The French Revolution, pp. 43–57, 55. See also Mackintosh's discussion of Bentham in Mackintosh, Dissertation, pp. 236–64.

47 J. Mill, A fragment on Mackintosh (London, 1835), p. 38.

48 See above n. 17.

49 2 PD 9, 418, 21 May 1823.

50 In one sentencing speech, he suggested that the natives ‘are beyond every other people of the earth addicted to these vices which proceed from the weakness of natural feeling and the almost total absence of moral restraints’ (Bombay Courier, 19 Apr. 1806). For the resulting controversy, see Rendall, ‘Political ideas’, pp. 182–3.

51 See Mackintosh to Adam, 20 Feb 1805. Blair Adam papers as quoted in Rendall, ‘Political ideas’, p. 181.

52 Mackintosh, Memoirs, ii, pp. 116–17.

53 See Mackintosh to Wishaw, 20 Feb. 1808, National Library of Scotland Add. MSS 2521, fo. 135, as quoted in Rendall, ‘Political ideas’, p. 174.

54 For the trial, which Mackintosh presided over, see G. Osborne, The trial of Charles Joseph Briscoe (Bombay, 1811). For Mackintosh's subsequent report, see J. Mackintosh, ‘Letter from the Honourable Sir JM, with a report on the police of the island of Bombay, October 1811’, in W. Morley, An analytical digest of all the reported cases decided in the supreme courts of judicature in India (2 vols., London, 1849), ii, pp. 501–45.

55 Mackintosh, ‘Letter from the Honourable Sir JM’, p. 522.

56 Ibid., p. 512.

57 See Bentham, ‘Law versus arbitrary power’.

58 2 PD 7, 794, 4 June 1822.

59 2 PD 9, 411, 21 May 1823.

60 Mackintosh papers, BL Add. MS 78775A, fo. 56, ‘Notes on criminal law’ (16 May 1821).

61 BL Add. MS 51451a, Mackintosh to Sharp, 14 Mar. 1807, fo. 39, quoted in A. Gust, ‘Empire, exile, identity: locating Sir James Mackintosh's histories of England’ (PhD thesis, London, 2011), p. 155.

62 1 PD 39, 784, 1 Mar. 1819.

63 Mackintosh papers, BL Add. MS 78775A, ‘Notes on criminal law’ (1823), fo. 68.

64 1 PD 39, 788, 1 Mar. 1819.

65 2 PD 9, 405, 21 May 1823.

66 Mackintosh, Dissertation, pp. 206–8.

67 1 PD 39, 784, 1 Mar. 1819.

68 ‘The most effectual means, in his opinion, for the detection of crime would be the mitigation of punishment. If the laws were more mild, no stigma would attach to the discovery of crime, the hearts of men would go with its detection’ (2 PD 7, 796, 4 June 1822).

69 For a clear exposition of this argument, see Mackintosh's speech: 2 PD 9, 397–420, 405, 21 May 1823.

70 Hence Mill's comment that ‘every Englishman of the present day…holds views of human affairs which can only be proved on the principles either of Bentham or Coleridge’, J. S. Mill, ‘Coleridge’ (1840), in J. Robson, ed., Essays on ethics, religions and society: collected works of John Stuart Mill (33 vols., London, 1963–91), x, pp. 120–1. For the importance of and the contrast between these ideologies, see Hilton, A mad, bad and dangerous people, pp. 309–14; M. Lobban, ‘Theories of law and government’, in Cornish, Anderson, Cocks, Polden, and Smith Oxford history, pp. 90–102.

71 For Mackintosh and Coleridge's relationship, see Beer, J., ‘Coleridge Mackintosh and the Wedgwoods: a reassessment, including some unpublished records’, Romanticism, 7 (2001), pp. 16–40CrossRefGoogle Scholar.

72 See 2 PD 7, 790–805, 4 June 1822.

73 This broad agreement was qualified by scepticism on some ‘minor points’ of criminal law theory, namely whether ‘justice is prospective and exemplary and never properly punitive’ (S. Coleridge to J. Mackintosh, 1 July 1822, BL Add. MSS 7873, fo. 87). The letter is reproduced and discussed in Garratt, E., ‘“Lime blossom, bees & flies”: three unpublished letters of Samuel Taylor Coleridge to James Mackintosh’, Romanticism, 7 (2001), pp. 1–15CrossRefGoogle Scholar.

74 See Hilton, A mad, bad and dangerous people, pp. 312–15; Lobban, ‘Theories of law and government’, pp. 91–4.

75 Mackintosh, Memoirs, ii, pp. 251–3; James Mackintosh to Spencer Perceval, 11 May 1812, BL Add. MS 78764, fo. 75.

76 See Rendall, ‘Political ideas’, pp. 258–302. For the structure and politics of the Whig party in this period, see A. Mitchell, The Whigs in opposition, 1815–1830 (Oxford, 1967); Hay, The Whig revival.

77 See Rendall, ‘Political ideas’, p. 275.

78 See Mackintosh to Lord John Russell, 14 Oct. 1819, 12 Jan. 1820, in R. Russell, ed., The early correspondence of Lord John Russell, 1805–1840 (2 vols., London, 1913), i, pp. 205–6, 210–12; Rendall, ‘Political ideas’, pp. 291–302; O'Leary, Sir James Mackintosh, p. 186.

79 See, for example, Mackintosh's speech on the Parliamentary Reform Bill: 3 PD 4, 669–99, 4 July 1831.

80 See Mandler, Aristocratic government, pp. 19–22; L. Mitchell, ‘The Whigs, the people, and reform’, in T. Blanning and P. Wende, eds., Reform in Great Britain and Germany, 1750–1850 (Oxford, 1999), pp. 25–42.

81 See D. Wahrman, ‘Public opinion, violence and the limits of constitutional politics’, in J. Vernon, ed., Re-reading the constitution: new narratives in the political history of England's long nineteenth century (Cambridge, 1996), pp. 183–222; D. Wahrman, Imagining the middle class: the political representation of class in Britain, c. 178–1840 (Cambridge, 1995), pp. 190–9; Parry, The rise and fall of Liberal government, pp. 27–34, 58–65.

82 See Gatrell, The hanging tree, pp. 396–416; Handler, ‘Forgery and the end of the “Bloody Code”’.

83 See S. Romilly, Memoirs of the life of Sir Samuel Romilly with a selection from his correspondence, edited by his sons (2nd edn, 3 vols. London, 1840), ii, p. 317.

84 Peel to Croker, 23 Mar. 1820, in L. J. Jennings, ed., The Croker papers: the correspondence and diaries of the late John Wilson Croker (3 vols., London 1884), i, p. 170.

85 ‘It seems to me a curious crisis – when public opinion never had such influence on public measures, and yet never was so dissatisfied with the share which it possessed’ (Peel to Croker, 23 Mar. 1820). On Peel's approach to criminal law and the prerogative of mercy, see works cited above n. 5.

86 2 PD 9, 418, 21 May 1823.

87 Mackintosh papers, BL Add. MS 78775A, fo. 77, ‘Notes on criminal law’ (1823).

88 1 PD 40, 1536, 6 July 1819. For a contemporary exploration of ‘respectable’ opinion’, see W. Mackinnon, On the rise, progress and present state of public opinion (London, 1828).

89 Mackintosh, Vindiciae Gallicae, p. 129; Mackintosh, J., ‘France’, Edinburgh Review, 24 (1815), pp. 505–37Google Scholar, at p. 525, quoted in Wahrman, Imagining the middle class, p. 157.

90 ‘An ascendancy, therefore, of landed proprietors must be considered, on the whole, as a beneficial circumstance in a representative body’, Mackintosh, ‘Universal suffrage’, p. 176. See also Mackintosh's speech on franchise reform in 1828: 3 PD 18, 1285, 1290, 21 Mar. 1828.

91 See McGowen, ‘The image of justice’, p. 123.

92 See Handler, P., ‘Forging the agenda: the 1819 select committee on the criminal laws revisited’, Journal of Legal History, 25 (2004), pp. 249–68CrossRefGoogle Scholar; Handler, ‘Forgery and the end of the “Bloody Code”’.

93 There were 68 executions for forgery out of a total of 214 executions in London in the period 1805–18. In England and Wales, there were 204 executions for forgery out of a total of 1,035 (Report of the select committee appointed to consider so much of the criminal law as relates to capital punishment in felonies, Parliamentary Papers (PP), 1819, viii, Appendices Nos. 1 and 2).

94 See P. Handler, ‘The limits of discretion: forgery and the jury at the Old Bailey, 1818–1821’, in J. Cairns, and G. McLeod, eds., The dearest birthright of the people of England: the jury in the history of the common law (Oxford, 2002), pp. 155–72.

95 See letters from T. F. Buxton to J. Mackintosh, 21 July 1819, 4 Aug. 1819, BL Add. MS 78767, fos. 19, 33.

96 See Handler, ‘Forging the agenda’.

97 James Mackintosh to Lord Grenville, 15 Apr. 1819, Dropmore papers, BL Add. MSS 58964, fo. 157.

98 Mackintosh, J., ‘Speech of Lord John Russell’, Edinburgh Review, 34 (1820), pp. 461–501, at p. 463Google Scholar.

99 The 1819 committee was appointed in Mar. and reported in July, before Peterloo (16 Aug.). The key debates on its proposals took place in 1820 and 1821. See Radzinowicz, History, i, pp. 526–66.

100 Wahrman, Imagining the middle class, p. 248.

101 2 PD 7, 791, 4 June 1822; 2 PD 9, 397, 21 May 1823.

102 See Handler, ‘Forgery and the end of the “Bloody Code”’, p. 16; P. Jupp, British politics on the eve of reform: the duke of Wellington's administration, 1828–1830 (Basingstoke, 1998), pp. 220–1.

103 See Mandler, Aristocratic government, pp. 13–22, 33–43.

104 BL Add. MS 78775A, 21 May 1823, fo. 64, ‘Notes on criminal law’. For the relationship between Mackintosh's approach to legislation and his moral philosophy, see Haakonssen, Natural law, pp. 261–93.

105 For Bacon's legislative theory, see D. Lieberman, The province of legislation determined: legal theory in eighteenth-century Britain (Cambridge, 1989), pp. 182–5.

106 F. Bacon, De Augmentis Scientiarum (English trans.), p. 98, as quoted in Lieberman, Province of legislation, p. 182.

107 See Lieberman, Province of legislation, pp. 199–216.

108 Ibid., pp. 213–14. For a full discussion of Romilly's efforts, see Radzinowicz, History, pp. 497–525.

109 See Hilton, ‘The gallows and Mr Peel’.

110 Mackintosh, Dissertation, pp. 289–90, as quoted in Haakonssen, Natural law, p. 288.

111 For the debates on the bill, see 2 PD 5, 893–971, 23 May 1821, 999–1001, 25 May 1821, 1099–114, 4 June 1821.

112 2 PD 5, 1103–4, 4 June 1821.

113 On the Bank's prosecution practices, see McGowen, ‘Managing the gallows’.

114 See 2 PD 5, 1109, 4 June 1821.

115 See Handler, ‘Forging the agenda’, p. 261.

116 2 PD 7, 791–805, 4 June 1822; 2 PD 9, 397–433, 21 May 1823.

117 2 PD 9, 421, 21 May 1823.

118 Peel to Lord Liverpool, 12 Oct. 1822, Liverpool papers BL, Add. MSS 38195, fo. 120.

119 2 PD 14, 1214, 9 Mar. 1826.

120 For detailed accounts of Peel's legislative programme, see N. Gash, Mr Secretary Peel: the life of Sir Robert Peel to 1830 (London, 1961), pp. 308–43; Radzinowicz, History, pp. 567–607.

121 Peel and Bentham kept up a sporadic correspondence. See Gash, Mr. Secretary Peel, pp. 333–4. See also Smith, K., ‘Anthony Hammond: Mr Surface Peel's persistent codifier’, Journal of Legal History, 20 (1999) pp. 24–44CrossRefGoogle Scholar.

122 He drafted a plan for a bill to present in the first parliamentary session of 1826, but he does not appear to have acted upon it. See Mackintosh papers BL Add. MSS 52449, fo. 11.

123 For Peel's draft bill and Mackintosh's proposed amendments, see PP, 1830, i, 417–34.

124 E. Law (Lord Ellenborough), A political diary, 1828–1830, ed. Lord Colchester (2 vols., London, 1881), ii, p. 264 (8 June 1830).

125 See Handler, ‘Forgery and the end of the “Bloody Code”’.

126 See Hilton, A mad, bad and dangerous people, p. 350; Parry, The rise and fall of Liberal government, pp. 38, 122–3.

127 Notably Brougham who secured the appointment of the Royal Commission on the Criminal Laws in 1833 which had as its initial objective to digest all of criminal statutes into one statute and all common or unwritten law into one statute. See Royal Commission on the Criminal Laws First Report, PP, 1834 (537), xxvi, 35; Smith, ‘Criminal law’, pp. 193–205.

128 3 PD 38, 914, 19 May 1837.

129 Correspondence between his Majesty's principal secretary of state for the Home Department and the commissioners, PP, 1837 (76), xxxi, 31, pp. 33–8.

130 3 PD 38, 257, 24 Apr. 1837; 3 PD 38, 1786, 4 July 1837.

131 3 PD 38, 1774, 4 July 1837, per Lord Denman LCJ, reporting the views of the judges to the House of Lords.