The astounding issue of the Irish State trials will constitute a
conspicuous and mortifying event in the history of the times. A gigantic
conspiracy for the dismemberment of the empire was boldly encountered at
its highest point of development by the energy of the common law of the
land, as administered in the ordinary courts of justice. That law,
itself certainly intricate and involved, had to deal with facts of
almost unprecedented complication and difficulty; but after a long and
desperate struggle, the law triumphed over every obstacle that could be
opposed to it by tortuous and pertinacious ingenuity: the case was
correctly charged before the jury; most clearly established in evidence,
so as to satisfy not them only, but all mankind; the jury returned a
just verdict of guilty against all the parties charged--the court passed
judgment in conformity with that verdict, awarding to the offenders a
serious but temperate measure of punishment--imprisonment, fine, and
security for good behaviour. The sentence was instantly carried into
effect--
"And Justice said--I'm satisfied."
But, behold! a last desperate throw of the dice from the prison-house--a
speculative and desponding appeal to the proverbial uncertainty of the
law; and, to the unspeakable amazement and disgust of the country, an
alleged technical slip in the conduct of the proceedings, not touching
or even approaching, the established MERITS of the case either in fact
or law, has been held, by the highest tribunal in the land, sufficient
to nullify the whole which had been done, and to restore to liberty the
dangerous delinquents, reveling in misrepresentation and falsehood
concerning the grounds of their escape on punishment--in their delirium
of delight and triumph, even threatening an IMPEACHMENT against the
officers of the crown, against even the judges of the land, for the part
they have borne in these reversed proceedings!
Making all due allowance for these extravagant fooleries, it is obvious
that the event which has given rise to them is one calculated to excite
profound concern, and very great _curiosity_. The most sober and
thoughtful observers are conscious of feeling lively indignation at the
spectacle of justice defeated by a technical objection; and public
attention has been attracted to certain topics of the very highest
importance and delicacy, arising out of this grievous miscarriage. They
are all involved in the discussion of the question placed at the head of
this article; and to that discussion we propose to address ourselves in
spirit of calmness, freedom, and candour. We have paid close attention
to this remarkable and harassing case from first to last, and had
sufficient opportunities of acquainting ourselves with its exact legal
position. We deem it of great importance to enable our readers, whether
lay or professional, to form, with moderate attention, a sound judgment
for themselves upon questions which may possibly become the subject of
early parliamentary discussion--Whether the recent decision of the House
of Lords, a very bold one unquestionably, was nevertheless a correct
one, and consequently entitling the tribunal by whom it was pronounced,
to the continued respect and confidence of the country? This is, in
truth, a grave question, of universal concern, of permanent interest,
and requiring a fearless, an honest, and a careful examination.
The reversal of the judgment against Mr O'Connell and his companions,
was received throughout the kingdom with perfect amazement. No one was
prepared for it. Up to the very last moment, even till Lord Denman had
in his judgment decisively indicated the conclusion at which he had
arrived on the main point in the case, we have the best reason for
believing that there was not a single person in the House of Lords--with
the possible exception of Lords Denman, Cottenham, and Campbell--who
expected a reversal of the judgment. So much has the public press been
taken by surprise, that, with the exception of a fierce controversy
between the _Standard_, and _Morning Herald_, and the _Morning
Chronicle_, which was conducted with great acuteness and learning, we
are not aware of any explanation since offered by the leading organs of
public opinion--the TIMES has preserved a total silence--as to the legal
sufficiency or insufficiency of the grounds on which this memorable
judgment of reversal proceeded. We shall endeavour to do so; for while
it is on this side of the Channel perfectly notorious that the
traversers have been proved guilty of the enormous misdemeanours with
which they were charged--guilty in law and guilty in fact--on the other
side of the Channel we find, since commencing this article, that the
chief delinquent, Daniel O'Connell, has the amazing audacity, repeatedly
and deliberately, to declare in public that he has been "ACQUITTED ON
THE MERITS!" Without pausing to find words which would fitly
characterize such conduct, we shall content ourselves with the following
judicial declaration made by Lord Brougham in giving judgment in the
House of Lords, a declaration heard and necessarily acquiesced in by
every member of the court:--
"The whole of the learned judges with one voice declare, that on the
merits, at any rate, they have no doubt at all--that on the great merits
and substance of the case they are unanimously agreed. That a great
offence has been committed, and an offence known to and recognisable by
the law; that a grave offence and crime has been perpetrated, and an
offence and crime punishable by the admitted and undoubted law of the
land, none of the learned judges do deny; that counts in the indictment
to bring the offenders, the criminals, to punishment, are to be found,
against which no possible exception, technical or substantial, can be
urged, all are agreed; that these counts, if they stood alone, would be
amply sufficient to support the sentence of the court below, and that
that sentence in one which the law warrants, justifies, nay, I will even
say commands, they all admit. _On these, the great features, the leading
points, the substance, the very essence of the case, all the learned
judges without exception, entertain and express one clear, unanimous,
and unhesitating opinion._" And yet all the proceedings have been
annulled, and the perpetrators of these great crimes and offences let
loose again upon society! How comes this to pass? is asked with
astonishment wherever it is heard of, both in this country--and abroad.
The enquiry we propose is due with reference to the conduct and
reputation of three great judicial classes--the judges of the Irish
Queen's Bench: the judges of England: and the judges of the court of
appeal in the House of Lords. Familiar as the public has been for the
last twelve months with the Irish State Trials, the proceedings have
been reported at such great length--in such different forms, and various
stages--that it is probable that very few except professional readers
have at this moment a distinct idea of the real nature of the case, as
from time to time developed before the various tribunals through whose
ordeal it has passed. We shall endeavour now to extricate the legal
merits of the case from the meshes of complicated technicalities in
which they have hitherto been involved, and give an even _elementary_
exposition of such portions of the proceedings as must be distinctly
understood, before attempting to form a sound opinion upon the validity
or invalidity of the grounds upon which alone the judgment has been
reversed.
The traversers were charged with having committed the offence of
CONSPIRACY; which, by the universally admitted common law of the land
for considerably upwards of five hundred years, exists "_where two, or
more than two, agree to do an illegal act_--that is, to effect something
in itself unlawful, or to effect by unlawful means something which in
itself may be indifferent, or even lawful."[1] Such an offence
constitutes a _misdemeanour_; and for that misdemeanour, and that
misdemeanour alone, the traversers were _indicted_. The government
might, as we explained in a former Number,[2] have proceeded by an
_ex-officio_ information at the suit of the crown, filed by the
Attorney-General; but in this instance, waiving all the privileges
appertaining to the kingly office, they appeared before the constituted
tribunal of the law as the redressers of the public wrongs, invested
however with no powers or authority beyond the simple rights enjoyed by
the meanest of its subjects--and preferred an _indictment_: which is "a
written accusation of one or more persons, of a crime or misdemeanour,
preferred to and presented on oath by a grand jury."[3] Now, in framing
an indictment, the following are the principles to be kept in view. They
were laid down with beautiful precision and terseness by Lord
Chief-Justice De Grey, in the case of Rex. _v._ Horne--2 Cowper's Rep.
682.
"The charge must contain such a description of the crime, that the
_defendant_ may know what crime it is which he is called upon to answer;
that the _jury_ may appear to be warranted in their conclusion of
'guilty,' or 'not guilty,' upon the premises delivered to them; and that
the _court_ may see such a definite crime, that they may apply the
punishment which the law prescribes."
There may be, and almost always are, several, sometimes many, counts in
a single indictment; and it is of peculiar importance in the present
case, to note the _reason_ why several counts are inserted, when the
indictment contains a charge of only one actual offence. First, when
there is any doubt as to which is the proper mode, in point of _law_, of
_describing_ the offence; secondly, lest, although the offence be
legally described on the face of the indictment, it should be one which
the _evidence_ would not meet or support. The sole object is, in short,
to avoid the risk of a frequent and final failure of justice on either
of the above two grounds. Technically speaking, each of these counts is
regarded (though all of them really are only varied descriptions of one
and the same offence) as containing the charge of a distinct offence.[4]
For precisely the same reason, several counts were, till recently,
allowed in CIVIL proceedings, although there was only one cause of
action; but this license got to be so much abused, (occasioning
expensive prolixity,) that only one count is now permitted for one cause
of action--a great discretion being allowed to judge, however, by
statute, of altering the count at the trial, so as to meet the evidence
then adduced. A similar alteration could not be allowed in criminal
cases, lest the grand jury should have found a bill for one offence, and
the defendant be put upon his trial for another. There appear, however,
insuperable objections to restricting one offence to a single count, in
respect of the other object, on peril of the perpetual defeat of
justice. The risk is sufficiently serious in civil cases, where the
proceedings are drawn so long beforehand, and with such ample time for
consideration as to the proper mode of stating the case, so as to be
sufficient in point of law. But criminal proceedings cannot possibly be
drawn with this deliberate preparation and accurate examination into the
real facts of the case beforehand; and if the only count
allowed--excessively difficult as it continually is to secure perfect
accuracy--should prove defective in point of law, the prisoner, though
guilty, must either escape scot-free, or become the subject of
reiterated and abortive prosecution--a gross scandal to the
administration of justice, and grave injury to the interests of society.
If these observations be read with attention, and borne in mind, they
will afford great assistance in forming a clear and correct judgment on
this remarkably interesting, and, _as regards the future administration
of justice_, vitally important case. There is yet one other remark
necessary to be made, and to be borne in mind by the lay reader.
Adverting to the definition already given of a "conspiracy"--that its
essence is the MERE AGREEMENT to do an illegal act--it will be plain,
that where such an agreement has once been shown to have been entered
into, it is totally immaterial whether the illegal act, or the illegal
acts, have been _actually done or not_ in pursuance of the conspiracy.
Where these illegal acts, however, have been done, and can be clearly
proved, it is usual--but not necessary--to _set them out_ in the
indictment for a conspiracy. This is called _setting out the overt
acts_, (and was done in the present instance,) not as any part of the
conspiracy, but only as statements of _the evidence_ by which the charge
was to be supported--for the laudable purpose of giving the parties
notice of the particular facts from which the crown intended to deduce
the existence of the alleged conspiracy. They consisted, almost
unavoidably, of a prodigious number of writings, speeches, and
publications; and these it was which earned for the indictment the title
of "the _Monster_ Indictment." It occupies fifty-three pages of the
closely printed folio _appendix_ to the case on the part of the
crown--each page containing on an average seventy-three lines, each line
eighteen words; which would extend to _nine hundred and fifty-three
common law folios_, each containing seventy-two words! The indictment
itself, however, independently of its ponderous appendages, was of very
moderate length. It contained eleven counts--and charged A CONSPIRACY of
a five-fold nature--_i. e._ to do five different acts; and the scheme of
these counts was this:--the first contained all the five branches of the
conspiracy--and the subsequent counts took that first count to pieces;
that is to say, contained the whole or separate portions of it, with
such modifications as might appear likely to obviate doubts as to their
_legal_ sufficiency, or meet possible or probable variations in the
expected _evidence_. The following will be found a correct abstract of
this important document.
The indictment, as already stated, contained eleven counts, in each of
which it was charged that the defendants, Daniel O'Connell, John
O'Connell, Thomas Steele, Thomas Matthew Kay, Charles Gavan Duffy, John
Gray, and Richard Barrett, the Rev. Peter James Tyrrell, and the Rev.
Thomas Tierney, unlawfully, maliciously, and seditiously did COMBINE,
CONSPIRE, CONFEDERATE, and AGREE with each other, and with divers other
persons unknown, for the purposes in those counts respectively stated.
The FIRST count charged the conspiracy as a conspiracy to do five
different acts, (that is to say,)
"_First._ To raise and create discontent and disaffection amongst her
Majesty's subjects, and to excite such subjects to hatred and contempt
of the government and constitution of the realm as by law established,
and to unlawful and seditious opposition to the said government and
constitution.
"_Second._ To stir up jealousies, hatred, and ill-will between
different classes of her Majesty's subjects, and especially to promote
amongst her Majesty's subjects in Ireland, feelings of ill-will and
hostility towards and against her Majesty's subjects in the other parts
of the United Kingdom, especially in that part of the United Kingdom
called England.
"_Third._ To excite discontent and disaffection amongst divers of her
Majesty's subjects serving in her Majesty's army.
"_Fourth._ To cause and procure, and aid and assist in causing and
procuring, divers subjects of her Majesty _unlawfully_, _maliciously_,
_and seditiously_ to meet and assemble together in large numbers, at
various times and at different places within Ireland, for the unlawful
and seditious purpose of obtaining, by means of the intimidation to be
thereby caused, and by means of the exhibition and demonstration of
great physical force at such assemblies and meetings, changes and
alterations in the government, laws, and constitution of the realm by
law established.
"_Fifth._ To bring into hatred and disrepute the courts of law
established in Ireland for the administration of justice, and to
diminish the confidence of her Majesty's subjects in Ireland in the
administration of the law therein, _with the intent_ to induce her
Majesty's subjects to withdraw the adjudication of their differences
with, and claims upon, each other, from the cognisance of the said
courts by law established, and to submit the same to the judgment and
determination of other tribunals to be constituted and contrived for
that purpose."
[This count sets out as _overt acts_ of the above design, numerous
_meetings_, _speeches_, and _publications_.]
The SECOND count was the same as the first, _omitting the overt acts_.
The THIRD count was the same as the second, only omitting from the
_fourth_ charge the words "unlawfully, maliciously, and seditiously."
The FOURTH count was the same as the third, omitting the charge as to
the army.
The FIFTH count contained the first and second charges set forth in the
first count, omitting the overt acts.
The SIXTH count contained the fourth charge set forth in the first
count, omitting the words "unlawfully, maliciously, and seditiously,"
and the overt acts.
The SEVENTH count was the same as the sixth, _adding_ the words "and
especially, by the means aforesaid, to bring about and accomplish _a
dissolution of the legislative union_ now subsisting between Great
Britain and Ireland."
The EIGHTH count contained the fifth charge set forth in the first
count, omitting the overt acts.
The NINTH count contained the fifth charge set forth in the first count,
omitting the intent therein charged, and the overt acts, but _adding_
the following charge--"And to assume and _usurp the prerogatives of the
crown_ in the establishment of courts for the administration of law."
The TENTH count was the same as the eighth, omitting _the intent_ stated
in the fifth charge in the first count.
The ELEVENTH count charged the conspiracy to be, "to _cause and procure
large numbers of persons to meet and assemble together_ in divers
places, and at divers times, within Ireland, and by means of unlawful,
seditious, and inflammatory speeches and addresses, to be made and
delivered at the said several places, on the said several times,
respectively, and also by means of the publishing, and causing and
procuring to be published, to and amongst the subjects of her said
majesty, divers unlawful, malicious, and seditious writings and
compositions, _to intimidate the Lords Spiritual and Temporal, and the
Commons_ of the Parliament of the United Kingdom of Great Britain and
Ireland, and _thereby_ to effect and bring about changes and alterations
in the laws and constitution of this realm, as now by law established."
The indictment was laid before the grand jury on the 3d November 1843,
and, after long deliberation, they returned a true bill late on the 8th
of November. After a harassing series of almost all kinds of preliminary
objections, the defendants, on the 22d November, respectively pleaded
"that they were NOT GUILTY of the premises above laid to his charge, or
any of them, or any part thereof:"--and on the 16th January 1844, the
trial commenced at bar, before the full court of Queen's Bench, viz.
the Right Honourable Edward Pennefather, _Chief-Justice_, and Burton,
Crampton, and Perrin, _Justices_, and lasted till the 12th February.
The Chief-Justice--a most able and distinguished lawyer--then closed his
directions to the jury.
"I have put the questions to you in the language of the indictment. It
lies on the crown to establish--they have undertaken to do so--that the
traversers, or some of them, are guilty of a conspiracy, such as I have
already stated to you--a conspiracy consisting of five branches, any one
of which being brought home, to your satisfaction, to the traversers or
traverser, in the way imputed, will maintain and establish the charge
which the crown has undertaken to prove."
The jury were long engaged in discussing their verdict, and came once or
twice into court with imperfect findings, expressing themselves as
greatly embarrassed by the complexity and multiplicity of the issues
submitted to them; on which Mr Justice Crampton, who remained to receive
the verdict, delivered to them, in a specific form, the issues on which
they were to find their verdict. They ultimately handed in very
complicated written findings, the substantial result of which may be
thus stated: All the defendants were found guilty on the whole of the
last eight counts of the indictment, viz., the Fourth, Fifth, SIXTH,
SEVENTH, Eighth, Ninth, Tenth, and Eleventh counts.
Three of the defendants--Daniel O'Connell, Barrett, and Duffy--were also
found guilty on the whole of the _Third_ count, and on part of the First
and Second counts--[that is to say, of all the first and second counts,
except as to causing meetings to assemble "_unlawfully, maliciously, and
seditiously_."]
Four other of the defendants--John O'Connell, Steele, Ray, and
Gray--were also found guilty of a part of the First, Second, and Third
counts--viz., of all, except as to causing meetings to assemble
_unlawfully, maliciously, and seditiously_, and exciting discontent and
disaffection in the army.[5]
As soon as these findings had been delivered to the deputy-clerk of the
crown, and read by him, a copy of them was given to the traversers, and
the court adjourned till the ensuing term.
It should here be particularly observed, that it has been from time
immemorial the invariable course, in criminal cases, as soon as the
verdict has been delivered, however special its form, for the proper
officer to write on the indictment, in the presence of the court and
jury, the word "_Guilty_," or "_Not Guilty_," as the case may be, of the
whole or that portion of the indictment on which the jury may have
thought fit to find their verdict; and then the judge usually proceeds
at once to pass judgment, unless he is interrupted by the prisoner's
counsel rising to move "_in arrest_," or stay of judgment, in
consequence of some supposed substantial defect in the indictment. But
observe--it was useless to take this step, unless the counsel could show
that _the whole indictment_ was insufficient, as disclosing in no part
of it an offence in contemplation of law. If he were satisfied that
there was one single good count to be found in it, it would have been
idle, at this stage of the proceedings, to make the attempt; and it very
rarely happens that every one of the varied modes of stating the case
which has been adopted is erroneous and insufficient. If, then, the
motion was refused, nothing else remained but to pass the sentence,
which was duly recorded, and properly carried into effect. No formal or
further entry was made upon the record--matters remaining in _statu
quo_--unless the party convicted, satisfied that he had good ground for
doing so, and was able to afford it, determined to bring a writ of
error. _Then_ it became necessary, in order to obey the command
contained in the writ of error, to "make up the record"--_i. e._
formally and in technical detail to complete its narrative of the
proceedings, in due course of law; for which purpose the verdict would
be entered in legal form, generally (if such it had been in fact) or
specially, according to its legal effect, if a special verdict had been
delivered.
To return, now, to the course of proceedings in the present instance.
After desperate but unsuccessful efforts had been made, in the ensuing
term, to disturb the verdict, the last step which could be resorted to
in order to avert the sentence, was adopted--viz., a motion in arrest of
judgment, on the main ground that the indictment disclosed in _no part_
of it any indictable offence. It was expressly admitted by the
traversers' counsel, in making the motion, that if "the indictment did
disclose, with sufficient certainty, an indictable offence in all OR ANY
of its counts, the indictment was sufficient;" and it was then
"contended, that _not one_ of the counts disclosed, with sufficient
certainty, that the object of the agreement alleged in it was an
indictable offence." The court, however, was of a different opinion; and
the Chief-Justice, in delivering his judgment, thus expressed
himself--"It was boldly and perseveringly urged, that there was no crime
charged in the indictment. If there was one in any count, or in any part
of a count, that was sufficient." So said also Mr Justice Burton--"We
cannot arrest the judgment, if there be _any_ count on which to found
the judgment"--the other two judges expressly concurring in that
doctrine; and the whole court decided, moreover, that _all_ the counts
were sufficient in point of law. They, therefore, refused the motion.
Had it been granted--had judgment been arrested--all the proceedings
would have been set aside; but the defendants might have been indicted
afresh. Let us once more repeat here--what is, indeed, conspicuously
evident from what has gone before--that at the time when this motion in
arrest of judgment was discussed and decided in the court below, there
was no more doubt entertained by any criminal lawyer at the bar, or on
the bench, in Ireland or England, that if an indictment contained one
single good count it would sustain a general judgment, though there
might be fifty bad counts in it, than there is of doubt among
astronomers, or any one else, whether the earth goes round the sun, or
the sun round the earth. Had the Irish Court of Queen's Bench held the
contrary doctrine, it would have been universally scouted for its
imbecility and ignorance.
Having been called up for _judgment_ on the 30th May, in Trinity term
last, the defendants were respectively sentenced to fine and
imprisonment, and to give security to keep the peace, and be of good
behaviour for seven years; and were at once taken into custody, in
execution of the sentence. They immediately sued out writs of error,
_coram nobis_--(_i. e._ error _in fact_, on the ground that the
witnesses had not been duly sworn before the grand jury, nor their names
authenticated as required by statute.) The court thereupon formally
affirmed its judgments. On the 14th June 1844, the defendants (who
thereby became _plaintiffs_ in error) sued out of the "High Court of
Parliament" writs of error, to reverse the judgments of the court below.
On the writ of error being sued out, it became necessary, as already
intimated, to enter the findings of the jury, according to the true and
legal effect of such findings, upon the record, which was done
accordingly--the judges themselves, it should be observed, having
nothing whatever to do with that matter, which is not within their
province, but that of the proper officer of the court, who is aided, in
difficult cases, by the advice and assistance of counsel; and this
having been done, the following (_inter alia_) appeared upon the face of
the record:--The eleven counts of the indictment were set out
_verbatim_; then the findings of the jury, (in accordance with the
statement of them which will be found _ante_;) and then came the
following all-important paragraph--the entry of judgment--every word of
which is to be accurately noted:--
"Whereupon _all and singular the premises being seen and fully
understood_ by the court of our said Lady the Queen now here, it is
considered and adjudged by the said court here, that the said Daniel
O'Connell, FOR HIS OFFENCES AFORESAID, do pay a fine to our Sovereign
Lady the Queen of two thousand pounds, and be imprisoned," &c., and
"enter into recognisances to keep the peace, and to be of good behaviour
for seven years," &c. Corresponding entries were made concerning the
other defendants respectively.
This Writ of Error, addressed to the Chief-Justice of the Queen's Bench
in Dublin, reciting (in the usual form) that "MANIFEST ERRORS, it was
said, had intervened, to the great damage" of the parties concerned;
commands the Chief-Justice, "distinctly and plainly, _to send under his
seal the record of proceedings_ and writ, to Us in our present
Parliament, now holden at Westminster; that the record and proceedings
aforesaid having been inspected, we may further cause to be done
thereupon, with the consent of the Lords Spiritual and Temporal, in
Parliament assembled, for correcting the said errors, what of right, and
according to the law and customs of this realm, ought to be done." The
writ of error, accompanied by a transcript of the entire record of the
proceedings below, having been duly presented to the House of Lords,
then came the "_assignment of errors,_" prepared by the counsel of the
plaintiffs in error--being a statement of the grounds for imputing
"manifest error" to the record; and which in this case were no fewer
than thirty-four. The Attorney-General, on the part of the crown, put in
the usual plea, or joinder in error--"_In nullo est erratum;" Anglicè_,
that "_there is no error in the record._" This was in the nature of a
demurrer,[6] and referred the whole record--and, be it observed,
_nothing but_ THE RECORD--to the judgment of the House of Lords, as
constituting the High Court of Parliament. It is a cardinal maxim, that
upon a writ of error the court _cannot travel out of the record_; they
can take judicial notice of nothing but what appears upon the face of
the record, sent up to them for the purpose of being "inspected," to see
if there be any error _therein._
The judges of England were summoned _to advise_[7] the House of Lords:
from the _Queen's Bench_, Justices Patteson, Williams, and Coleridge,
(Lord Denman, the Chief-Justice, sitting in judgment as a peer;) from
the _Common Pleas_, Chief-Justice Tindal, and Justices Coltman and
Maule; from the _Exchequer_, Barons Parke, Alderson, and Gurney. Lord
Chief-Baron Pollock did not attend, having advised the Crown in early
stages of the case, as Attorney-General: Mr Justice Erskine was ill; and
the remaining three common law judges, Justices Wightman, Rolfe, and
Cresswell, were required to preside in the respective courts at _Nisi
Prius_. With these necessary exceptions, the whole judicial force--so to
speak--of England assisted in the deliberations of the House of Lords.
The "_law_" peers who constantly attended, were the Lord Chancellor,
Lords Brougham, Cottenham, and Campbell. It has been remarked as
singular, that Lord Langdale (the Master of the Rolls) did not attend in
his place on so important an occasion, and take his share in the
responsibility of the decision. Possibly he considered himself not
qualified by his _equity_ practice and experience to decide upon the
niceties of criminal pleading. Several lay peers also attended--of whom
some, particularly Lord Redesdale, attended regularly. The appeal lasted
for many days, frequently from ten o'clock in the morning till a late
hour in the evening; but the patience and attention of the peers and
judges--we speak from personal observation--was exemplary. For the crown
the case was argued by the English and Irish Attorney-Generals, (Sir W.
W. Follett and Mr T. B. C. Smith;) for O'Connell and his companions, by
Sir Thomas Wilde, Mr M. D. Hill, Mr Fitzroy Kelly, and Mr Peacock, all
of whom evinced a degree of astuteness and learning commensurate with
the occasion of their exertions. If ever a case was thoroughly
discussed, it was surely this. If ever "justice to Ireland" was done at
the expense of the "delay of justice to England," it was on this
occasion. When the argument had closed, the Lord Chancellor proposed
written questions, eleven in number, to the judges, who begged for time
to answer them, which was granted. Seven out of the eleven related to
the merest technical objections, and which were unanimously declared by
the judges to be untenable; the law lords (except with reference to the
sixth question, as to the overruling the challenge to the array)
concurring in their opinions. Lord Denman here differed with the judges,
stating that Mr Justice Coleridge also entertained doubts upon the
subject; Lords Cottenham and Campbell shared their doubts, expressly
stating, however, that they would not have reversed the proceedings on
that ground. If they had concurred in reversing the judgment which
disallowed the challenge to the array, the only effect would have been,
to order a _venire de novo_, or a new trial. With seven of the
questions, therefore, we have here no concern, and have infinite
satisfaction in disencumbering the case of such vexatious trifling--for
such we consider it--and laying before our readers the remaining four
questions which tended to raise the SINGLE POINT on which the judgment
was reversed; a point, be it observed, which was not, as it could not in
the nature of things have been, made in the court below--arising out of
proceedings which took place after the court below, having discharged
their duty, had become _functi officio_. Those questions were,
respectively, the first, second, third, and last, (the eleventh,) and as
follow:--
_Question I._--"Are all, or any, and if any, which of the _counts of the
indictment, bad in law_--so that, if such count or counts stood alone in
the indictment, _no judgment_ against the defendants could properly be
entered upon them?"
_Question II._--"Is there any, and if any, what defect in the _findings
of the jury_ upon the trial of the said indictment, or in the _entering_
of such findings?"
_Question III._--"Is there any sufficient ground for _reversing the
judgment_, by reason of any defect in the indictment, or of the
findings, or entering of the findings, of the jury, upon the said
indictment?"
_Question XI._--"In an indictment consisting of counts A, B, C, when the
verdict is, _guilty of all generally_, and the counts A and B are good,
and the count C is bad; the judgment being, that the defendant, '_for
his offences aforesaid_,' be fined and imprisoned; which judgment would
be sufficient in point of law, if confined expressly to counts A and
B--can such judgment be reversed on a writ of error? Will it make any
difference whether the punishment be discretionary, as above suggested,
or a punishment fixed by law?"
The above questions may be stated shortly and substantially thus:--Are
there any _defective counts_ in the indictment? Any defective _findings_
of the jury? Any defects in _entering_ the findings? Can judgment be
reversed on any of these grounds? If one only of several counts in an
indictment be bad; a verdict given of "guilty" generally; judgment
awarded against the defendant "for _his offences_ aforesaid," and the
punishment discretionary--can judgment be reversed on a writ of error?
The whole matter may now, in fact, be reduced to this single question:
Can a judgment inflicting fine or imprisonment be reversed by a court of
error, because that judgment proceeded on an indictment containing both
_bad and good_ counts, and in respect of which _some_ of the findings of
the jury were either defective or defectively entered?--Let us now
listen to the decision of that venerable body of men, who are, in the
language of our great commentator, "_the depositaries of the laws, the
living oracles, who must decide in all cases of doubt, and who are bound
by an oath to decide according to the law of the land._"[8] The
questions which they had thus to consider, moreover, were not questions
of rare, subtle, unusual, and speculative, but of an ordinary practical
character, such as they were concerned with every day of their lives in
administering the criminal law of the country.
First, then, were there any bad counts in the indictment?
The judges were unanimously of opinion that TWO of the counts were bad,
or insufficient in law--and two only--which were the SIXTH and SEVENTH
counts. They hold positively and explicitly, that the remaining NINE
COUNTS WERE PERFECTLY VALID.
The Chief-Justice (Tindal) thus delivered this unanimous opinion of
himself and his brethren on this point.[9]
"No serious objection appears to have been made by counsel for the
prisoners, against the sufficiency of any of the counts prior to the
sixth. Indeed, there can be no question that the charges contained in
the FIRST FIVE COUNTS, _do amount in each to the legal offence of
conspiracy, and are sufficiently described therein_.
"We all concur in opinion as to the EIGHTH, NINTH, and TENTH counts, (no
doubt whatever having been raised as to the sufficiency of the ELEVENTH
count,) that the object and purpose of the agreement entered into by the
defendants and others, as disclosed upon those counts, is an agreement
for the performance of an act, and the attainment of an object, which is
a violation of the law of the land."
With reference to the SIXTH and SEVENTH counts, in the form in which
they stand upon their record, the judges were unanimously of opinion,
that these counts "did not state the illegal purpose and design of the
agreement entered into between the defendants, with such proper and
sufficient _certainty_ as to lead to the _necessary_ conclusion that it
was an agreement to do an act in violation of the law." They did not
show what sort of fear was intended by the alleged intimidation, nor
upon whom it was intended to operate, nor was it alleged that the
"physical force exhibited" was to be _used_, or _intended_ to be used.
Observed, therefore, on what grounds these two counts--two only out of
eleven--are held defective: they are deficient in that rigorous
"_certainty_" now held requisite to constitute a perfectly legal charge
of crime. To the eye of plain common sense--we submit, with the deepest
deference, to those who have held otherwise--they distinctly disclose a
_corpus delicti_; but when stretched upon the agonizing rack of legal
logic to which they were exposed, it seems that they gave way. The
degree of "certainty" here insisted upon, would seem to savour a little
(possibly) of that _nimia subtilitas quæ in jure reprobatur; et talis
certitudo certitudinem confundit_: and which, in the shape of "certainty
to a certain intent in every particular," is rejected in law, according
to Lord Coke, (5 _Rep._ 121.) It undoubtedly tends to impose inevitable
difficulty upon the administration of criminal justice. Sir Matthew Hale
complained strongly of this "strictness, which has grown to be a blemish
and inconvenience in the law, and the administration thereof; for that
more offenders escape by the over-easy ear given to exceptions in
indictments, than by their own innocence."--12 Hal. P. C. 193; 4 Bla.
Co. 376. The words, in the present case, are pregnant with irresistible
"inference" of guilt; an additional word or two, which to us appear
already implicitly there, as they are actually in the eleventh count,
would have dispersed every possible film of doubt; and Lord Brougham, in
giving judgment, appeared to be of this opinion. But now for the general
result: The indictment contained two imperfect counts, and nine perfect
counts, distinctly disclosing offences not very far short of treason.
Thus, then, the first question was answered.
To the _second_ question the judges replied unanimously, "that the
_findings of the jury_ in the first four counts were not authorized by
the law, and are incorrectly entered on the record." One of the judges,
however, and a most eminent judge, (Mr Justice Patteson,) being of a
contrary opinion.
Thus we have it unanimously decided by the judges, whose decision was
acquiesced in by the House of Lords, that there were two bad counts,
(the 6th and 7th,) on which there were good findings by the jury, and,
with the exception of Mr Justice Patteson, four good counts, (the 1st,
2d, 3d, and 4th,) on which there were bad findings. The effect of this
twofold error was thus tersely stated by Mr Baron Gurney, and adopted by
the Lord Chancellor.[10]
"I cannot distinguish between a bad finding on a good count, and a good
finding on a bad count. They appear to me to amount to precisely the
same thing--namely, that upon which no judgment can be pronounced. The
judgment must be taken to have proceeded upon _the concurrence of good
counts and good findings_, and upon nothing else."
Here, then, at length, it seems that we have hit upon a _blot_--a petty,
circumscribed blot to be sure, upon a vast surface of otherwise
unsullied legal sufficiency; but still--in the opinion of the judges--a
blot.
What was to be held the effect of it? Or had it _any_ effect?
The traversers' counsel, at the bar of the House of Lords, took by
surprise every one whom they addressed--all their opponents, all the
judges, all the law lords, and all the legal profession, as soon as they
had heard of it--by boldly affirming, that if this blot really existed,
it would invalidate and utterly nullify the whole proceedings from the
beginning to the end! They hammered away at this point accordingly, hour
after hour--day after day--with desperate pertinacity; being compelled
from time to time, during their hopeful argument, to admit, that up to
that moment the rule or custom which they were seeking to impeach had
been universally acted upon from time immemorial, to the contrary of
that for which they were contending. This strange and novel point of
theirs gave rise to the third and eleventh questions put to the judges.
These questions are substantially identical, viz., whether a single bad
count in an indictment on which there has been a general verdict of
guilty, with judgment accordingly, will entitle the fortunate defendant
to a reversal of that judgment?
We heard a considerable portion of the argument; and listened to _this_
part of it with a comfortable consciousness that we beheld, in each
counsel arguing it, as it were, a viper gnawing a file! If _this_ be
law, thought we, then have many thousands of injured gentlemen been, in
all human probability, unjustly hanged, and transported for life or for
years, been fined, imprisoned, sent to the tread-mill, and publicly
whipped; for Heaven only knows how many of the counts in the indictments
against--say Mr Fauntleroy; Messrs Thistlewood, Brunt, Tidd, and Ings;
Messrs Greenacre, Courvoisier, and many others--have been defective in
law! How many hundreds are now luxuriating in Norfolk Island who have,
on this supposition, no just right to be there; and who, had they been
but _popular_ miscreants, might have collected sufficient funds from
their friends and admirers to enable them to prove this--to try a fall
with justice and show her weakness; to overhaul the proceedings against
them, detect the latent flaws therein, return in triumph to the bosom of
their families and friends, and exhibit new and greater feats of
dexterity in their art and mystery! Why should not that "_innocent_"
convict--now passing over the seas--Mr Barber, on hearing of this
decision, soon after his arrival at the distant paradise to which he is
bound, take new heart and remit instructions by the next homeward bound
ship for a writ of error, in order that he may have _his_ chance of
detecting a flaw in one of the many counts of _his_ indictment?
But, to be serious again, how stands the case in the present instance?
Of eleven counts, six must be in legal contemplation expunged from the
record: FOUR, (the first, second, third, and fourth,) because, though in
themselves sufficient in law, the findings upon them were technically
defective; and TWO, (the sixth and seventh,) because they were
technically defective in point of law, though the findings on them were
unobjectionable.
Then there remain FIVE PERFECT COUNTS WITH FIVE PERFECT FINDINGS, in the
opinion of all the judges and of all the law lords; those five _counts_
containing the gist of the whole charge against O'Connell and his
confederates--those five _findings_ establishing that the defendants
were guilty of the offences so laid to their charge. Blot out, then,
altogether from the record the six counts objectionable on the
above-mentioned grounds, how are the other five to be got rid of? Thus,
said the traversers' counsel. We have the entire record before us
containing all the eleven counts and findings, both good and bad; and we
find by the language of the record itself, that the judges, in passing
sentence, _took into consideration all the eleven counts_, as if they
had been valid counts with valid findings--for the judges expressly
inflicted punishment on each of the traversers "_for his_ OFFENCES
_aforesaid_." Is it not therefore plain to demonstration, that the
measure of punishment was governed by reference to six--_i. e._ a
majority--of eleven counts, which six counts had no more right to stand
on the record, entailing liability to punishment on the parties named in
them, than six of the odes of Horace? The punishment here, moreover,
being discretionary, and consequently dependent upon, and influenced by,
the ingredients of guilt, which it appears conclusively that the judges
took into their consideration?
Such was the general drift of the reasonings of the traversers' counsel.
What was their effect upon the assembled judges--those experienced and
authoritative expositors of the law of the land? Why, after nearly two
months' time taken to consider and ponder over the various points which
had been started--after anxious consideration and communication one with
another--they re-appeared in the House of Lords on the 2d of September;
and, led by one who will be on all hands admitted to be one of the most
experienced, gifted, profoundly learned, and perfectly impartial and
independent lawyers that ever presided over a court of justice--Sir
Nicholas Tindal--SEVEN out of _nine_ of the judges expressed a clear
unhesitating opinion, that the third and eleventh questions should be
answered in the negative--viz. that the judgment was in no way
invalidated--could be in no way impeached, by reason of the defective
counts and findings. The two dissenting judges who had been _hit_ by the
arguments of the traversers' counsel, were Baron Parke and Mr Justice
Coltman--the latter speaking in a confident, the former in a remarkably
hesitating and doubting tone. The majority consisted of Chief-Justice
Sir Nicholas Tindal, Mr Justice Patteson, Mr Justice Maule, Mr Justice
Williams, Mr Baron Gurney, Mr Baron Alderson, and Mr Justice Coleridge.
We have no hesitation in expressing our opinion, that the judgments
delivered by this majority of the judges stand on the immovable basis of
sound logic, accurate law, and good sense; and lament that our space
will not allow us to present our readers with the many striking and
conclusive reasonings and illustrations with which those judgments
abound. We can but glance at the _result_--leaving the _process_ to be
examined at leisure by those so disposed. The artful fallacies of the
traversers' counsel will be found utterly demolished. The first grand
conclusion of the judges was thus expressed by the Chief-Justice--
"I conceive it to be the law, that in the case of an indictment, if
there be ONE GOOD COUNT in an indictment upon which the defendants have
been declared guilty by proper findings on the record, and a judgment
given for the crown, imposing a sentence authorized by law to be awarded
in respect of the particular offence, that such judgment cannot be
reversed by a writ of error, by reason of one or more of the counts in
the indictment being bad in point of law."