"It was urged at your lordships' bar, that all the instances which have
been brought forward in support of the proposition, that one good count
will support a general judgment upon an indictment in which there are
also bad counts, are cases in which there was a motion in _arrest of
judgment_, not cases where a _writ of error_ has been brought. This may
be true; for so far as can be ascertained, there is no single instance
in which a writ of error has been ever brought to reverse a judgment
upon an indictment, upon this ground of objection. But the very
circumstance of the refusal by the court to arrest the judgment, where
such arrest has been prayed on the ground of some defective count
appearing on the record, and the assigning by the court as the reason
for such refusal, that there was one good count upon which the judgment
might be entered up, affords the strongest argument, that they thought
the judgment, _when entered up_, was irreversible upon a writ of error.
For such answer could not otherwise have been given; it could have had
no other effect than to mislead the prosecutor, if the court were
sensible at the time, that the judgment, when entered up, might
afterwards be reversed by a court of error."
The grand argument derived from _the language of the judgment_, was thus
encountered:--
"I interpret the words, 'that the defendant _for his offences_
aforesaid, be fined and imprisoned,' in their plain literal sense, to
mean _such offences as are set out in the counts of the indictment which
are free from objection, and of which the defendant is shown by proper
findings on the record to have been guilty_--that is in effect the
offences contained in the fifth and eighth, and all the subsequent
counts. And I see no objection to the word offences, in the plural,
being used, whether the several counts last enumerated do intend several
and distinct offences, or only one offence described in different
manners in those counts. For whilst the record remains in that shape,
and unreversed, there can be no objection in point of law, that they
should be called 'offences' as they appear on the record."
Now, however, let us see the view taken of the matter by Mr Baron
Parke--a man undoubtedly of acute and powerful mind, as well as accurate
and extensive learning. It is impossible not to be struck by the tone of
diffidence which pervades his judgment; and it was _delivered_ in a very
subdued manner, not usual with that learned judge; occasioned doubtless
by the pain with which he found himself, on an occasion of such
transcendent importance, differing from all his brethren but one. He
commenced by acknowledging the astonishment with which he had heard
counsel at the bar question the proposition _which he_ (Baron Parke)
_had always considered_, ever since he had been in the profession,
_perfectly settled and well established_, viz. that in criminal cases
one good count, though associated with many bad ones, would,
nevertheless, suffice to support a general judgment. But "he had been
induced to _doubt_ whether the rule had not been carried too far, by a
misunderstanding of the _dicta_ of judges on applications _in arrest of
judgment_."
To enable the lay reader to appreciate the novel doctrine which has been
sanctioned in the present case, it is requisite to understand clearly
the distinction to which we have already briefly adverted, between a
motion in _arrest of judgment_ and a _writ of error_. When a defendant
has been found guilty of an offence by the verdict of a jury, judgment
must follow as a matter of course, "_judgment_ being the sentence of the
law pronounced by the court upon the matter contained in the
record."[11] If, however, the defendant can satisfy the court that the
indictment is entirely defective, he will succeed in "_arresting,_" or
staying the passing of judgment; but if he cannot, the court will
proceed to _give judgment_. That judgment having been entered on the
record, the defendant, if still persuaded that the indictment is
defective, and consequently the judgment given on it erroneous, has one
more chance; viz. to _reverse_ the judgment which has been so given, by
bringing a writ of error before an appellate tribunal. Now, the exact
proposition for which the traversers' counsel contended was this--that
the rule that "one good count will sustain a general judgment, though
there are also bad counts in the indictment," is applicable to that
stage only of the proceedings at which a motion is made in arrest of
judgment; _i. e. before the judgment has been actually given_, and not
to the stage at which a writ of error has been obtained, viz. _after the
judgment has been actually given_.
This proposition was adopted by Mr Justice Coltman; while Mr Baron
Parke--for reasons substantially identical with those of Lords Denman,
Cottenham, and Campbell--declared himself unable to overthrow it.
As to the "opinion that one good count, properly found, will support a
judgment warranted by it, whatever bad counts there may be," Mr Baron
Parke said,--"I doubt whether this received opinion is so sufficiently
established by a course of usage and practical recognition, though
generally entertained, as to compel its adoption in the present case,
and prevent me considering its propriety. After much anxious
consideration, and weighing the difficulties of reconciling such a
doctrine with principle, I feel so much doubt, that I cannot bring
myself to concur with the majority of the judges upon this question."
Without for one moment presuming to suggest any invidious comparison, we
may observe, that whatever may be the learning and ability of the two
dissenting judges, the majority, with Sir Nicholas Tindal at their head,
contains some of the most powerful, well-disciplined, long-experienced,
and learned intellects that ever were devoted to the administration of
justice, and all of them thoroughly familiar with the law and practice
in criminal proceedings; and as we have already suggested, no competent
reader can peruse their judgments without feeling admiration of the
logical power evinced by them. While Mr Baron Parke "_doubts_" as to the
soundness of his conclusions, they all express a clear and _decisive_
opinion as to the existence of the rule or custom in question as a rule
of law, and as to its reasonableness, utility, and justice.
The reading of these judgments occupied from ten o'clock on the Monday
morning till three o'clock in the afternoon, when the House adjourned
till Wednesday; having first ordered the opinions of the judges to be
printed. There were a considerable number of peers (among whom was the
Duke of Cambridge) present, and they listened attentively to those whom
they had summoned to advise them on so great an occasion. Lords
Brougham, Denman, Cottenham, and Campbell sat near one another on the
opposition side of the House, each with writing-tables before him; and
they, together with the Lord Chancellor, appeared to pay close attention
to what fell from the judges. The House of Lords on these great
occasions presents a very interesting and impressive appearance. The
Chancellor sits robed in his usual place, surrounded by the judges, who
are seated on the woolsacks in the centre of the house, all in their
full official costume, each rising to read his written judgment. If ever
man made a magnificent personal appearance among his fellows, it is Lord
Lyndhurst thus surrounded. At the bar of the house stood, or sat, the
majority of the counsel engaged on each side, as well as others; and the
whole space behind was crowded by anxious spectators, conspicuous among
whom were Messrs Mahoney and Ford, (two tall, stout, shrewd-looking
men,) the Irish attorneys engaged on behalf of the traversers. They and
their counsel appeared a trifle less desponding at the conclusion of
Baron Parke's judgment; but the impression was universal that the
Chancellor would advise the House to affirm the judgment, in accordance
with the opinions of so overwhelming a majority of the judges. No one,
however, could do more than guess the inclination of the law lords, or
what impression had been made upon them by the opinions of the judges.
When therefore Wednesday, the day of final judgment upon this memorable
and agitating case, had arrived, it is difficult to describe the
excitement and anxiety manifest among all the parties who densely
crowded the space between the door and the bar of the House. There were,
of course, none of the judges present, with the exception of Mr Baron
Rolfe, who, in plain clothes, sat on the steps of the throne, a mere
private spectator. There were about a dozen peers on the ministerial
benches, including Lord Wharncliffe, Lord Redesdale, Lord Stradbroke,
and others; and several peers (including Lord Clanricarde) sat on the
opposite benches. Lords Cottenham and Campbell sat together, frequently
in communication with each other, and occasionally with Lord Denman, who
sat near them, at the cross-benches, busily engaged in referring to
books and papers. Lord Brougham occupied his usual place, a little
nearer the bar of the House than Lords Cottenham and Campbell; and on
the writing-desks of all three lay their written judgments. All the
law-peers wore a serious and thoughtful expression of countenance--which
you scrutinized with eager anxiety in vain for any sign of the sort of
judgments which they had come prepared to deliver. The traversers'
leading counsel, Sir Thomas Wilde and Mr Hill, both stood at the bar of
the House in a state of very perceptible suspense and anxiety. The
Attorney-General for Ireland sat in his usual place--almost motionless,
as usual, from first to last--very calm, and watching the proceedings
with deep attention, seldom uttering more than a passing syllable to
those who sat next to him, _i. e._ the English Solicitor-General, and Mr
Waddington, and Mr Maule of the Treasury. After judgment had been
briefly given in Gray's case, a few moments' interval of silence
elapsed--the silence of suppressed anxiety and expectation. At length
the Lord Chancellor, who had been sitting with a very thoughtful air for
a few moments, slowly rose from the woolsack, and advanced to his proper
post when addressing the House, viz. at about a couple of yards'
distance to the left of the woolsack. Finding that his robes, or train,
had in some way got inconveniently disarranged, so as to interfere with
the freedom of his motions, he occupied several seconds in very calmly
putting it to rights; and then his tall commanding figure stood before
you, in all that tranquil grace and dignity of appearance and gesture,
for which he has ever been so remarkably distinguished. During the whole
time--exactly an hour--that he was speaking, his voice clear and
harmonious as usual, and his attitude and gesture characterized by a
graceful and easy energy, he never once slipped, or even hesitated for
want of an apt expression; but, on the contrary, invariably hit upon
_the very_ expression which was the most accurate, appropriate, and
elegant, for conveying his meaning. He spoke with an air of unusual
decision, and entirely _extempore_, without the assistance of a single
memorandum, or note, or law-book: yet the greater portion of his speech
consisted of very masterly comments on a great number of cases which had
been cited, in doing which he was as familiar and exactly accurate, in
stating not only the principles and distinctions involved, but the
minutest circumstances connected with them, as if the cases had been
lying open before him! His very first sentence put an end to all doubt
as to the conclusion at which _he_ had arrived. These were his precise
words--the last of them uttered with peculiar emphasis:--"My lords, I
have to move your lordships that the judgment of the court below in this
case be _affirmed_." He proceeded to compliment the judges on the
patient and laborious attention and research which they had bestowed
upon the case. "My lords," said he, "with respect to all the points
submitted to their consideration, with the exception of one
question--for in substance it _was_ one question--their opinion and
judgment have been unanimous. With reference to that one question, seven
of the learned judges, with the Chief-Justice of the Common Pleas at
their head, have expressed a distinct, a clear, and decided opinion
against the objections which were urged. Two other learned judges have
expressed an adverse opinion. I may be permitted to say--and all who
were present to hear them must agree with me--that it was an opinion
accompanied with much doubt and much hesitation. I think, under these
circumstances, that _unless your lordships are thoroughly and entirely
satisfied that the opinion of the great majority of the judges was
founded in palpable error_, your lordships will feel yourselves, in a
case of this kind, bound by their decision to adhere to and support
their judgment, and act in conformity with it." After briefly stating
the only question before them--viz. "whether, there being defective
counts in the indictment, and other counts with defective findings on
them, a general judgment can be sustained?"--he proceeded, "Your
lordships will observe that this is a mere technical question, though, I
admit, of great importance--never presented to the judges of the court
below, not calling in question their judgment in substance--but arising
entirely out of the manner in which that judgment has been entered up,
by those whose province it was to discharge that particular duty." He
then made the following decisive and authoritative declaration, which
all who know the accurate and profound learning and the vast judicial
experience of the Chancellor will know how to value. "Allow me, my
lords, to say, that _it has always been considered as a clear, distinct,
and undoubted principle of the criminal law of England, that in a case
of this nature a general judgment is sufficient_; and from the first
moment when I entered the profession, down to the time when I heard the
question agitated at your lordships' bar, I never heard it called in
question. I have found it uniformly and constantly acted upon, without
doubt, without hesitation. I find it in all treatises, in all
text-writers on the subject--not questioned, not doubted, not qualified,
but stated broadly and clearly. Now for the first time it has been
stated--and Mr Baron Parke himself admits that it _is_ for the first
time--that that rule applies only to motions in arrest of judgment. I
never before heard of such a limitation. I am quite sure that there is
no case to sanction it, no decision to warrant it, no authority to be
cited in support of it. I am quite satisfied, after all I have heard on
the subject, that there is no ground whatever for the doubt--no ground
whatever for the exception now insisted upon. * * * It is not NECESSARY
that the judgment should be awarded _with reference to any particular
count_. No such decision can be cited. No one not in the confidence of
the judges can tell in respect of what the judgment was awarded, _except
with reference to the record itself_. If there be defective counts, does
it by any means FOLLOW that the judges, in awarding judgment, appointed
any part of it with reference to the defective counts? There is no
similarity between the two cases: you cannot reason or argue from one to
the other. You must assume, UNLESS THE CONTRARY IS DISTINCTLY SHOWN,
that what the judges have done in that respect is right; that the
judgment, if there be any part of the record to support it, proceeded
upon that part. In writs of error, you are not allowed to _conjecture_,
to decide on _probabilities_, you must look to the record; and unless
the record itself, on the face of it, shows, not that there _may_ have
been, but that there HAS been manifest error in the apportioning of the
punishment, you cannot reverse the judgment. You upon conjecture reverse
the judgment; and if afterwards you were to consult the very judge by
whom it had been pronounced, you might find that he had at the time
taken that very point into consideration. You are therefore running the
hazard of reversing a judgment on the very grounds which were present to
the mind of the judge at the moment when that judgment was pronounced."
As to the statement, that judgment was awarded against each defendant
"FOR HIS OFFENCES aforesaid,"--thus argued the Chancellor:--
"But independently of this, my lords, let us look at the record itself,
and see whether, on the face of the record, there is any ground whatever
for this objection. Every record must be construed according to _its
legal effect_--according to its legal operation. You cannot travel out
of the record. Now, what is the judgment? Why, 'that the court adjudges
the defendant, _for his offences aforesaid_, to be fined and
imprisoned.' What is an 'OFFENCE' on this record? There are two counts
defective: but why? Because they charged, according to the unanimous
opinion of the judges, NO offence. There were _facts_ stated, but not so
stated as to constitute an indictable offence. When you consider this
record, then, according to its language and legal interpretation, can
you say that when there is an award of judgment for the offences on the
record, that judgment applies to those counts which bear on the face of
them no offence whatever? That is, my lords, an incongruity, an
inconsistency, which your lordships will never sanction for one moment.
The argument which applies to defective counts, applies to valid counts
on which erroneous findings are entered up. When judgment is given for
an 'offence' on the record, it is given on the offence of which the
defendant is properly found guilty; and he is _not_ found guilty on
those counts on which the erroneous findings are entered up. My lords,
the conclusion to which I come on the record is, that when the judgment
is awarded 'for the offences aforesaid', it must be confined to those
offences stated on the record which are offences in the eye of the law,
and of which the defendant has been found guilty by the law--namely,
those offences on which the finding was properly made. It is not,
however, necessary to rest upon that: but if it were, I am of opinion,
and I state it to your lordships, that in this case, the record,
considered according to the proper and legal acceptation and force of
the terms--and that is the only way in which a local record can be
properly considered--must be taken as containing an award of judgment
for those offences only which are properly laid, and of which the
parties have been found guilty. On the face, therefore, of the record
itself, there is no defect whatever in this case."
His lordship, after a luminous commentary on a great number of
authorities, thus proceeded--"Now, my lords, it is said that there is
_no express decision_ upon the subject. Why, if a case be so clear, so
free from doubt, that no man, no attorney, barrister, or judge, ever
entertained any scruple concerning it--if the rule have been uniformly
acted upon and constantly recognised, is it to be said, that because
there is no express decision it is not to be considered _law_? Why, that
argument leads to this conclusion--that the more clear a question is,
the more free from doubt, the more uncertain it must be! _My lords, what
constitutes the law of this country? It is--usage, practice,
recognition._ For many established opinions, part of the acknowledged
law of the land, you will look in vain for any express decision. I
repeat, that practice, usage, recognition, are considered as precedents
establishing the law: these are the foundations on which the common law
of the country rests; and it is admitted in this case, that the usage is
all against the principle now contended for by the plaintiffs in error.
No case, no authority of any kind, can be adduced in its favour: it is
now admittedly, for the first time, urged in this extraordinary case.
And I ask, my lords, if you will not recognise the decision of the great
majority of the judges on a question of this kind, involving the
technicalities of the law, with which they are constantly conversant?
When, on such a point, you find them--speaking by the eminent and able
Chief-Justice of the Common Pleas--pronouncing a clear and distinct
opinion, it must be a case clear from all doubt--a conviction amounting
to actual certainty, upon which alone you would be justified in
rejecting such authorities. * * * It is on these grounds, and on the
authorities which I have cited, that I assert the universal recognition
of the principle which I contend has been acknowledged law from time
immemorial."
Such was the emphatic, clear, unwavering judgment, deliberately
pronounced, after long examination and consideration, by one of the very
greatest intellects ever brought to bear upon the science of the law,
and of vast judicial experience in the administration of every
department of the law--criminal law, common law, and equity.
Lord Brougham then rose, and delivered partly a written, partly an oral
judgment--characterized by his lordship's usual vigour and felicity of
reasoning and illustration. He entirely concurred with the Lord
Chancellor, and assigned reasons, which certainly appeared of
irresistible cogency, for adopting the opinion of the judges, whom, in a
matter peculiarly within their province, their lordships had summoned to
their assistance, who had bestowed such unexampled pains upon the
subject, and were all but unanimous. The following was a very striking
way of putting the case:--"If the doubts which have been thrown upon
this judgment be allowed to have any weight in them, it goes the length
of declaring, that _every thing which has been decided in similar cases_
was mere error and delusion. Nothing can be more dangerous than such an
impression. I cannot conceive any thing more appalling than that it
should be held, that every one of the cases similarly decided ought to
be reversed; that the judgments without number under which parties have
been sent for execution _are all erroneous judgments, and ought to have
been reversed_, and _must_ have been reversed, if they had been brought
before the last resort!"
Lord Denman then rose; and though it was generally understood--as proved
to be the fact--that he intended to express a strong opinion against the
disallowance of the challenge to the array, we believe that no one
expected him to dissent upon the great and only point on which the
appeal turned, from the opinions of the great majority of his brother
judges, and from the Chancellor and Lord Brougham. We waited with great
interest to see the course which Lord Denman would take upon the great
question. He is a man of strong natural talents, of a lofty bearing in
the administration of justice, and an uncompromising determination on
all occasions to assert the rights and protect the privileges of the
subject. Nor, though a man of unquestionably very strong Whig opinions,
are we aware of his having ever allowed them to interfere with his
eminent and most responsible judicial duties. Whatever may be our
opinion as to the validity of his conclusions on the subject of the
challenge to the array, it was impossible not to be interested by the
zealous energy, the manly eloquence, with which he vindicated the right
of the subject to the fullest enjoyment of trial by jury, and denounced
what he considered to be any, the slightest interference, with that
right. At length his lordship closed his observations on that subject,
and amidst breathless silence, fell foul, not only of the two counts
which had been admitted to be defective--the sixth and seventh--but
"_many others of the counts!_" which, he said, were open to objection,
and declared that the judgment could not be sustained.
Lord Denman's judgment (to which great respect is due) was, as far as
relates to _the point_ of the case, to this effect:--He had an
"unconquerable repugnance" to assuming that the judges had passed
sentence on the good counts only; for it was in direct contradiction to
_the notorious fact_, that the judges had pronounced certain counts to
be good; and it was also against the _common probability_ of every case.
He admitted the general opinion of the profession to have long been,
that a general judgment, if supported by one sufficient good count, was
not injured by a bad one associated with it. "I know," said his
lordship,[12] "what course I should have taken if pressed to give
judgment at the trial, and had given it. If nothing had taken place
respecting the validity of any part of the indictment--but much more if
its validity had been disputed, but established--I should leave
apportioned the sentence to the degree of criminality that was stated in
all the counts which were proved in evidence."--"I see no inconvenience
in compelling a judge to form an opinion on the validity of the counts,
before he proceeds to pass judgment. He ought to take care that a count
is good before he allows a verdict to be taken, or at least judgment to
be entered upon it; and great good will arise from that practice. I am
deliberately of opinion that this is a right and wholesome practice,
producing no inconvenience, and affording a great security for justice.
* * * In criminal cases, all difficulty may be entirely avoided by the
court passing a separate judgment on each count, and saying, 'We adjudge
that on this count, on which the prisoner is found guilty, he ought to
suffer so much; that on the second count, having been found guilty, he
ought to suffer so much; whether the count turn out to be good or not,
we shall pronounce no opinion; that question would be reserved for a
superior court. A court of error would then reverse the judgment only on
such counts as could not be supported in law--leaving that to stand
which had proceeded on valid charges."--"Where a felony was established,
requiring a capital punishment, or transportation for life, the number
of counts could make no difference; because the punishment pronounced on
any one exhausted the whole materials of punishment, and admitted of no
addition."--"The current notion, that one count alone could support any
sentence applicable to the offences stated in the whole indictment, can
be accounted for only by Lord Mansfield's general words, needlessly and
inconsiderately uttered, hastily adopted, and applied to a stage of the
proceedings in which they are not correct in law."
Then came Lord Cottenham--a cold, clear-headed lawyer, cautious, close,
and accurate in his reasonings, and very tenacious in adhering to his
conclusions: possessing the advantage of several years' judicial
experience--as an equity judge. Thus he addressed himself to _the point_
of the case:--
"_Is there error upon the record?_"
* * * Did not the court below pass sentence upon the offences charged in
the _first_, _second_, _third_, _fourth_, _sixth_, and _seventh_ counts
in the indictment, as well as upon the offences charged in the other
counts? The record of that court tells us that it _did_; and if we are
to see whether there be any error on that record, and adopt the
unanimous opinion of the judges, that those six counts, or the findings
on them, are so bad that no judgment upon them would be good, how can we
give judgment for the defendant, and thereby declare that there is _no
error_ in the record? The answer which has been given to this objection
appears not only unsatisfactory, but inadmissible. It is said that we
must presume that the court below gave judgment, and passed sentence,
only with reference to the unobjectionable counts and findings. That
would be to presume that which the record negatives. By that record the
court tells us that the sentence on each defendant was 'for his offences
aforesaid,' after enumerating all those charged in the indictment. Are
we, after and in spite of this, to assume that this statement is false,
and that the sentence was upon one-half only of the offences charged? *
* * We can look to the record only for what passed in the court below;
and as that tells us the sentence was passed _upon all the offences of
which the jury had found the defendants guilty_, we cannot presume to
the contrary of such a statement. It would be the presumption of a fact,
the contrary of which was known to all to be the truth. The argument
supposes the court below to have been right in all particulars; but the
impossibility of doing so on this record was felt so strongly, that
another argument was resorted to, (not very consistently with the
judgment, for it assumes that the jury may have been wrong upon every
count but one,) namely, that a court of error has to see only that there
is _some one offence properly charged_, or a punishment applicable to it
inflicted; and then, that being so, that as to all the other counts the
court below was wrong--all such other counts or findings being bad.
"Consider what is the proposition contended for. Every count in an
indictment for misdemeanour is supposed to apply to a different offence:
they often do so, and always may; a prosecutor having the option of
preparing a separate indictment for each, or of joining all as one. If
he adopt the former course, he must, to support the sentence, show each
indictment to be right. If he adopt the latter course--viz. going upon
one indictment containing several counts, and one sentence is pronounced
upon all the counts, according to the proposition now contended for;
suppose the sentences to be bad on all the counts _but one_, that one
applying to the most insignificant offence of the whole; a court of
error, it is said, has no right to interfere! That is to say, it cannot
correct error except such error be _universal_;--no matter how important
that error, no matter how insignificant the portion which is right, nor
what may have been the effect of such error! The proposition will no
longer be 'in _nullo_ est erratum,' but that the error is
not--_universal_. If neither of these arguments prove that there is
manifest error upon the record, and it is not for a court of error to
enter into any consideration of the effect which such error may have
produced, it has no power to alter the verdict, and can form no opinion
of its propriety and justice from mere inspection of the record, which
is all the judicial knowledge a court of error has of the case. _Upon
what ground_ is it to be assumed, in any case, that the court below, if
aware of the legal insufficiency of any of the counts, or of the
findings upon them, would have awarded the same punishment? It _could_,
probably, do so in many cases--but in many it as certainly would not. If
the several counts were only different modes of stating the same
offence, the insufficiency of some of those counts could not affect the
sentence; but if the different counts stated--as they well
might--actually different misdemeanours, and, after a verdict of guilty
_upon all_, it were found that some of _such_ counts--that is, that some
of the misdemeanours--charged, must be withdrawn from the consideration
of the court, by reason of defects in either the counts themselves or
the findings upon them, it cannot, in many cases, be supposed that the
sentence could be the same as if the court had the duty thrown upon it
of punishing _all the offences charged_. This may be well illustrated by
supposing an indictment for two libels in different counts--the first of
a slight, the other of an aggravated character--and verdict and judgment
upon both; and the count charging the malignant libel, or the finding on
it, held to be bad. Is the defendant to suffer the same punishment as if
he had been properly found guilty of the malignant libel?" The reason
why the rule in civil actions does not apply to _motions in arrest of
judgment_ in criminal cases, is plainly this:--because the court,
_having the sentence in its own hands_, will give judgment 'on the part
which is indictable'--and the failure of part of the charge will go only
to lessening the punishment. These reasons, however, have plainly no
application to _writs of error_; because _a court of error_ CANNOT, _of
course, confine the judgment to those parts which are indictable, or
lessen it, as the different charges are found to fail_."
"The only inconvenience," added his lordship, "which can arise from the
rule we are laying down, will be, that the prosecutor must be careful as
to the counts on which he means to rely: _the evidence at the trial_
must afford him the means of making the selection--and the defendant has
now the means of compelling him to do so."
Such was, in substance, Lord Cottenham's judgment. He read it in his
usual quiet, homely, matter-of-fact manner, as if he were not at all
aware of, or cared not for, the immense importance and public interest
attaching to the publication of the conclusion at which he had arrived.
Then rose Lord Campbell. In a business-like and satisfactory manner he
went briefly over all the points which had been made by the plaintiffs
in error, disposing of them all in favour of the crown, (expressing,
however, doubts on the subject of the challenge to the array,) till he
came to THE POINT--which he thus approached:--"I now come, however, to
considerations which induce me, _without hesitation_, humbly to advise
your lordships to reverse this judgment." He was brief but pithy in
assigning his reasons.
"According to the doctrine contended for on the part of the crown," said
his lordship, adopting two cases which had been put by, we believe, Mr
Peacock in his argument, "the following case may well happen. There may
be an indictment containing two counts, A and B, for separate offences;
A being a good count, B a bad one. The court below may think A bad and B
good; and proceed to sentence the defendant to a heavy punishment merely
in respect of B, which, though it may contain in reality not an offence
in point of law, they may consider to contain one, and of signal
turpitude. On a writ of error, the court above clearly sees that B is a
bad count; but cannot reverse the judgment, because there stands count A
in the indictment--and which, therefore, (though for a common assault
only,) will support the heavy fine and imprisonment _imposed in respect
of count B_! Let me suppose another case. An indictment contains two
counts: there is a demurrer[13] to each count: each demurrer is
overruled, and a general judgment given that the defendant, 'for his
offences aforesaid,' shall be fined and imprisoned. Is it to be said,
that if he bring a writ of error, and prove one count to be bad, he
shall have no relief unless he shows the other to be bad also?"
He concluded a brief commentary (substantially identical with that of
Lord Cottenham) on the authorities cited, by affirming that "there was
neither text-book, decision, nor _dicta_ to support a doctrine so
entirely contrary to principle."
This is how his lordship thinks the like mischief may be obviated in
future:--
"If bad counts are inadvertently introduced, the mischief may be
_easily_ obviated by taking a verdict of acquittal upon them--by
entering a _nolle prosequi_ to them, or by seeing that the judgment is
expressly stated to be on the good counts only, which alone could
prevent the bad counts from invalidating the judgment upon a writ of
error."
As to the notion that the judges were uninfluenced in passing sentence
by the first three counts, on which there were numerous findings, he
observed, that--"We cannot resort to the _palpably incredible fiction_
that the judges, in violation of their duty, did not consider the guilt
of the parties aggravated by the charges in these three counts, and
proportionally increase their punishment."
After an unsuccessful attempt on the part of one or two lay peers who
had not heard the whole argument, to vote--which was resisted by both
the Lord Chancellor and Lord Wharncliffe, and Lords Brougham and
Campbell--the Lord Chancellor finally put the question:--
"Is it your lordships' pleasure that this judgment be reversed?--As many
as are of that opinion, will say '_Content_.' As many as are of a
contrary opinion, will say '_Not Content_.'"
"_Content!_" exclaimed Lords Denman, Cottenham, and Campbell.
"_Not Content!_" said the Lord Chancellor and Lord Brougham.
_Lord Chancellor._ "The _Contents_ have it. The judgment is Reversed."
The instant after these pregnant words had been uttered, there was a
rush of persons, in a state of the highest excitement and exultation,
towards the door; but the lords calmly proceeded to give judgment in a
number of ordinary appeal cases. The Attorney-General for Ireland, who
had been watching the whole of the day's proceedings with close
attention, heard the result with perfect composure; but as several
portions of the judgments of Lords Denman, Cottenham, and Campbell were
being delivered, a slight sarcastic smile flitted over his features. As
we have mentioned him, let us take this opportunity of bearing testimony
to the very great ability--ability of the highest order--with which he
has discharged _his_ portion of the duty of conducting these
proceedings, unprecedented in their harassing complexity and their
overwhelming magnitude. He has manifested throughout--'bating a little
irritability and strictness in petty details at starting--a
self-possession; a resolute determination; a capability of coping with
unexpected difficulty; a familiarity with constitutional law; a mastery
over the details of legal proceedings; in short, a degree of forensic
ability, which has been fully appreciated by the English bar, and
reflects credit upon those who placed him in his arduous and responsible
office. In terms of similar commendation we would speak of the Irish
Solicitor-General, (Mr Sergeant Green.) Accustomed as we are to witness
the most eminent displays of forensic ability, we feel no hesitation in
expressing our opinion, that the Solicitor-General's reply at the trial,
and the Attorney-General's reply on the motion for a new trial, were as
masterly performances as have come under our notice for very many years.
We have thus laid before our readers, with the utmost candour and care,
this truly remarkable case; and at a length which, though considerable,
is by no means incommensurate with its permanent interest and
importance. We believe that we have, in the foregoing pages, furnished
all persons, of average intellect and information, with the means of
forming for themselves a sound opinion as to the propriety or
impropriety of reversing the judgment of the court below. We have given
the arguments on both sides with rigid impartiality, and supplied such
information, in going along, as will enable the lay reader thoroughly to
understand them. This is a question which all thinking persons must
needs regard with profound interest and anxiety. If, in the deliberate
opinion of the country, the judgments of the High Court of Parliament
are habitually, though unconsciously, warped by party and political
feelings and prejudices; if, with such views and intentions, they have
strained and perverted the law of the land, wickedly sheltering
themselves under the unfortunate difference of opinion existing among
the judges, those who have been guilty of it will justly stand exposed
to universal execration. It is no light matter even to propose such a
possibility as that of profligacy or corruption in the administration of
justice; above all, in the highest tribunal in the land--the place of
last resort for the subject. It is always with pain and regret that we
hear, even in the height of political excitement and hostility, the
faintest imputation from any quarter on judicial integrity. We have
watched this case from first to last; and especially examined over and
over again, in a spirit of fearless freedom, the grounds assigned for
reversing the judgment, and the position and character of those by whose
_fiat_ that result was effected. We cannot bring ourselves to believe
any thing so dreadful as that three judicial noblemen have deliberately
violated their oaths, and perpetrated so enormous an offence as that of
knowingly deciding contrary to law. Those who publicly express that
opinion, incur a very grave responsibility. We are ourselves zealous,
but independent supporters of the present government; we applaud their
institution of these proceedings; no one can lament more bitterly than
we do, that O'Connell should, like many a criminal before him, have
escaped from justice through a flaw in the indictment; yet with all
this, we feel perfectly satisfied that the three peers who reversed the
judgment against him, believed that they were right in point of law.
When we find so high an authority as Mr Baron Parke--as far as politics
are concerned, a strong Conservative--declaring that he cannot possibly
bring himself to concur in opinion with his brethren; that another
judge--Mr Justice Coltman--after anxious deliberation, also dissents
from his brethren; and when we give each of these judges credit for
being able to appreciate the immense importance of _unanimity_ upon such
a case as the present, had it been practicable--can it seem really
unreasonable or surprising, that a corresponding difference of opinion
should exist among the peers, whose judicial duty it was to decide
finally between the judges? It _is_, certainly, a matter calculated to
attract a _moment's_ attention, that the judgment should have been
reversed by the votes of three peers who concur in political opinion,
and opposition to the government who instituted the prosecution. But in
fairness, put another possible case. Suppose Lord Abinger had been
alive, and had concurred with the Chancellor and Lord Brougham, would
not another class of ardent partisans as naturally have remarked
bitterly upon the coincidence of opinion between the peers whose three
voices concurred in supporting the judgment of the court below?
While we thus entirely exonerate Lords Denman, Cottenham, and Campbell
from all imputation of intentionally giving effect to party and
political bias, it is difficult to suppose them, or any other peer,
entirely free from _unconscious_ political bias; but in the nature of
things, is it not next to impossible that it should be otherwise, in the
case of men who combine in their own persons the legislative and
judicial character, and in the former capacity are unavoidably and
habitually subject to party influences? When a Judicial question is
under consideration, of such extreme doubtfulness as almost to justify a
vote either way, (we must deal with men and things as we find them,) can
it excite great surprise, if even in the most honourable minds a
political bias should _unconsciously_ evince its presence, and just
turn the scale?
But here the case has turned upon one single point of the purest
technicality, which the House of Lords has deemed sufficient to cause a
reversal of the judgment of the court below; and the question is, have
they done rightly? Are they right or wrong in point of strict law? In
the language of Mr Justice Williams--the objection raised in behalf of
the traversers "is purely of a technical nature, and to be examined in
the same spirit of minute and exact criticism in which it was
conceived."[14]
The dry question, then, is this: Is it a rule, a principle, a custom, of
English law, that one good count will sustain a general judgment upon a
writ of error in a criminal case, although there should be also bad
counts in the indictment? Is that a "custom or maxim of our law," or is
it not? First, then, how is this to be ascertained? The illustrious
commentator on the laws of England, Mr Justice Blackstone,[15] shall
answer:--
"Established _customs_, _rules_, and _maxims_, I take to be one and the
same thing. For the authenticity of these maxims _rests entirely upon
reception and usage_; and the only method of proving that this or that
maxim is a rule of the common law, _is by showing that it hath been
always the custom to observe it_. But here a very natural and very
material question arises: how are these customs or maxims to be known;
and by whom is their validity to be determined? The answer is, by the
judges in the several courts of justice. They are the depositaries of
the laws--_the living oracles, who must decide in all cases of doubt_,
and are bound by an oath to decide according to the law of the land."
These judges were appealed to by the House of Lords upon the present
occasion; and by an overwhelming majority "distinctly, clearly, and
decidedly" declared that the rule in question was a rule of the English
law. _They had heard all the arguments calling its existence in
question_ which Lord Denman, Lord Cottenham, and Lord Campbell had
heard; they were _in the daily and hourly administration of that branch
of the law with reference to which the question arose_; they took ample
time to consider the matter, and deliberately affirmed the existence of
the rule, and the valid grounds on which it rested. The highest legal
authority in the land, the Lord Chancellor, corroborated their decision,
declaring that it "has always been considered as a clear, distinct, and
undoubted principle of the criminal law, that one good count could
sustain a general judgment on a writ of error." Are Lord Lyndhurst and
Sir Nicholas Tindal, with eight of the judges, palpably and manifestly
wrong? It is certainly _possible_, though not, we presume, very
probable.
We fully recognise the _right_ of the judicial peers to examine the
validity of the reasons assigned by the judges, and to come to a
conclusion opposite to theirs. We apprehend that the long recognition,
alone, of the existence of a rule, does not prevent its being impeached
on sufficient reasons. Lord Tenterden, as cautious and accurate judge as
ever presided over a court of justice, thus expressed himself in
delivering the judgment of the court on a question of mercantile
law[16]--"It is of great importance, in almost every case, that a rule
once laid down, and firmly established, and continued to be acted upon
for many years, should not be changed, _unless it appears clearly to
have been founded on wrong principles_." Have, then, Lords Denman,
Cottenham, and Campbell, succeeded in showing the rule in question to
have been founded on wrong principles?
After as close and fair an examination of the judgments given in the
House of Lords as we are capable of bestowing upon any subject, we have
arrived at the conclusion that the Chancellor and judges were plainly
right, and the peers who differed from them as plainly wrong. They
doubtless believed that they were eradicating an erroneous and
mischievous practice from the administration of criminal law; but we
entertain grave fears that they have not duly considered the many
important reasons and necessities out of which that practice
originated, and which, in our opinion, will require the legislature
either to restore it, or devise some other expedient in lieu of it--if
one so efficacious _can_ be found--after a very brief experience of the
practical mischiefs and inconveniences which the decision of the House
of Lords will entail upon the administration of criminal justice.
Mr Justice Coltman observes,[17] that "in old times an indictment
contained one single count only;" and that, "now it has become usual to
insert _many_ counts." It _has_ become usual--it should rather be said
_necessary_; but why? Because of the rigid precision which the law, in
spite of the subtle and complicated character of its modern mode of
administration, has long thought fit to require for the protection of
the subject, in the statement of an offence charged against an
individual. Unless that degree of _generality_ in framing criminal
charges, which has been so severely reprobated, in the present instance,
by Lord Denman, and which led the judges unanimously to condemn the
sixth and seventh counts, shall be henceforth permitted, justice _must_,
so to speak, be allowed to have many strings to her bow; otherwise the
very great distinctness and particularity which constitute the legal
notion of _certainty_, are only a trap and a snare for her. There is a
twofold necessity for allowing the reasonable multiplication of counts:
one, to meet the difficulty often arising out of the adjustment of the
statement in the charge to the evidence which is to support it; and the
other, to obviate the great difficulty, in many cases, of framing the
charge with perfect legal certainty and precision. Look for a striking
illustration at the sixth and seventh counts of this very indictment.
Few practical lawyers, we venture to think, would have pronounced them
insufficient, before hearing those numerous astute and able arguments
which have led the judges to that conclusion; and what if these had been
the _only_ counts, or one of them the sole count? Of course, justice
would have been defeated. Now the rule, custom, or practice--call it
what you will--which has been annulled by the House of Lords, was
admirably adapted to meet, in combination with the allowance of several
counts, the practical and perhaps inevitable difficulties which beset
the attempt to bring criminals to justice; to prevent any injurious
consequences from either _defective_ or _unproved_ counts; and we think
we may truly state, that no single instance as adduced during the
argument, of actual mischief or injury occasioned to defendants by the
operation of this rule--we believe we may safely defy any one now to
produce such a case. It is certainly possible for an anxious straining
ingenuity to _imagine_ such cases; and where is the rule of law, which,
in the infirmity of human institutions, cannot be shown capable of
occasioning _possible_ mischief and injustice?
One important distinction has not, we venture to think, been kept
constantly in view by the House of Lords in arriving at their recent
decision; we mean, the distinction between _defective_ counts and
_unproved_ counts. It was principally in the former case that the
annulled rule operated so advantageously for the interests of justice.
Let us suppose a case. A man is charged with an offence; and the
indictment contains three counts, which we will call A, B, C--each
differently describing the same offence. He is proved in court to have
actually done an act to which the law annexes a punishment, and a
general verdict and judgment, awarding the correct _kind_ of punishment,
are given and entered. If it afterwards became necessary to "make up"
the record--_i. e._ to enter the proceedings in due and full form--it
might appear that count A was essentially defective, as containing no
"offence" at all. But what did that signify--or what would it have
signified if count B had also been bad--provided count C was a good one,
and warranted the punishment which had been inflicted? The only
consequence was, that the indictment was a little longer than it turns
out that it needed to have been. Though several hooks had been used in
order to give an additional chance of catching the fish, that was not
regretted, when, the fish having been caught, it turned out that two out
of the three had not been strong enough; and that, had they alone been
used, the fish must have escaped.
Let us see how the new rule laid down by the House of Lords will operate
in future, in such a case as the one above supposed; bearing in mind
that it will have to be acted upon, not merely by the judges of the
superior courts at the assizes, but by the chairmen--the _lay_
chairmen--of the courts of Quarter-Sessions. Let us imagine the
indictment to be a long one, and each count necessarily complicated in
its allegations and refinements, to meet very doubtful facts, or very
doubtful language in an Act of Parliament. A great number of prisoners
are to be tried; but, nevertheless, the judge (lay or professional) has
mastered the formidable record, and points out to the jury two bad
counts, A and B, as either not hitting the facts of the case or the
language of the act--possibly neither. He orders them to be quashed, or
directs a verdict of not guilty upon them. He then has the verdict and
judgment entered accordingly on count C, (the count which he considers
good.) The record is afterwards made up; a writ of error brought; the
only count on which the judgment is given being C, the court of error
_decides that it is bad_, reverses the judgment, and the prisoner is
discharged; or the country is put to the expense and trouble of
bringing, and the prisoner unjustly harrassed by, fresh proceedings,
which may, perhaps, end as disastrously as before!
To escape from these serious difficulties, it is proposed by Lord
Denman,[18] to leave the legal sufficiency of the counts for discussion
before a court of error, and to pass, not one sentence, but three
distinct sentences on each count respectively, apportioning to the
offence thereby apparently charged, the degree of punishment due to the
guilt disclosed. Keeping his eye on the alarming possibility of a
reversal of judgment, what difficulties will not beset the path of the
judge while engaged on this very critical duty? And why may not the
indictment, for _necessary_ caution's sake, contain, as there often are,
ten, fifteen, or twenty counts? we shall then have ten or fifteen
distinct sentences delivered in open court--engrossed on the record--and
dangling at once around the neck of the astounded and bewildered
prisoner. Is _such_ a method of procedure calculated to secure respect
for the administration of justice, even if, by means of such devices,
the ends of justice should be ultimately secured, though it is easy to
imagine cases in which such devices would, after all, fail; and we had
framed several illustrations of such possibilities, but our limits
forbid their insertion: instances illustrating the mischievous operation
of the rule, equally in cases of defective and unproved counts--of
felonies and misdemeanours--and in the latter case, whether the
indictment contained several offences, or only varied statements of one
offence. In the case first put, what a temptation the new rule holds out
to criminals who may be able to afford to bring a writ of error, and so
seriously embarrass the administration of justice! And if too poor to do
it, he will, under the operation of the new rule, be suffering
punishment unjustly; for the only count selected may be bad, or some one
only of several may be bad, and the judgment ought to be reversed. What
was the operation of the old rule? Most salutary and decorous. No public
account was taken of the innocuous aims, so to speak, taken by justice,
in order to hit her victim. If he fell, the public saw that it was in
consequence of a blow struck by her, and concerned themselves not with
several previous abortive blows. The prisoner, knowing himself _proved_
actually guilty, _and the numerous chances existing against him on the
record_, if he chose to make pettifogging experiments upon its technical
sufficiency, submitted to his just fate.
Let us take one more case--that of _murder_: we fear, that on even such
solemn and awful occasions, the new rule will be found to operate most
disadvantageously. There are necessarily several, possibly many,
counts. Mr Baron Parke[19] admits, that here the old rule should apply;
viz. a general judgment of death, which shall not be vitiated by one, or
several bad counts, if there be a single good one. The new rule since
laid down, says, however, the contrary; that judgment must be reversed
for a single bad count. Lord Denman, to meet this difficulty, would pass
sentence "upon some one"[20] of them, and thereby exhaust the materials
of punishment, and so in effect give a "judgment for one felony." _But
how is the record to be dealt with?_ If the prisoner choose to bring a
writ of error, and show a single bad count, must not the judgment be
reversed if entered generally? And if entered on one count with not
guilty on all the others; and that one count proved bad, while even _a
single one_ of the rejected counts is good, and would have been
supported by the evidence given at the trial, the prisoner can plead
_autrefois acquit_ to a fresh indictment, and so get off scot-free,
after having been incontestably proved guilty of the act of murder!
Suppose then, to avoid so fearful a result, separate sentences of death
be passed, to say nothing of the unseemliness of the transaction in open
court, which _might_ be avoided: but how can it be avoided _on the
record_, upon which it must be entered? Mr Baron Parke pronounces that
such a procedure would be "_superfluous, and savour of absurdity_,"[21]
and that therefore, "in such a case, the general judgment _might_ be
good!" Thus, in order to _work_ the new rule, Mr Baron Parke is forced
to make the case of murder a double exception--viz. to the _adoption_ of
the new rule at the trial, and then to the _operation_ of the new rule
before the court of error, which must then hold that a single bad, or a
dozen bad counts, will _not_ vitiate a general judgment, if sustained by
one good count! Does not all this suffice to show the desperate shifts
to which even two such distinguished judges are driven, in order to
support the new rule, and conceal its impracticability? Then why should
the old lamp be exchanged for the new?
We entertain, we repeat, very grave apprehension that the House of Lords
has treated far too cavalierly the authority of the great Lord
Mansfield, than whom a more enlightened, learned, and cautious a judge
probably never administered justice among mankind. He was not a man
accustomed, in delivering his judgments, to "utter things _needlessly_
and _inconsiderately_," as he is now charged with doing;[22] and when he
declared the established rule of criminal law to be that which has now
been so suddenly abrogated, he spoke with the authority which nearly
thirty years' judicial experience attaches to the opinion of a
responsible master-mind. We ask with deep anxiety, what will be the
consequences of thus lightly esteeming such authority?--of impugning the
stability of the legal fabric, by asserting one-half of its materials to
consist merely of "law taken for granted?"[23]--and, consequently, not
the product of experience and wisdom, and to be got rid of with
comparative indifference, in spite of the deliberate and solemn judgment
of an overwhelming majority of the existing judicial authorities of the
land.
The rule just abrogated has, for a long series of years--for a century
and a half--obviated a thousand difficulties and evils, even if it
should be admitted that the end was gained at the expense of some
imperfections in a speculative and theoretical point of view, and with
the risk of _possibly_ inflicting injustice in some case, which could be
imagined by an ingenious and fertile fancy. The old rule gave ten
chances to one in favour of justice; the new one gives ten chances to
one _against_ her. We may be mistaken, but we cannot help imagining,
that if Lord Cottenham, unquestionably so able as an equity judge, had,
on the maxim _cuique suâ arte credendum_, given a little more weight to
the opinions of those whose whole lives had been passed, not in equity,
but criminal courts, or had seen for himself the working of the
criminal law, he would have paused before disturbing such
complicated--necessarily complicated--machinery, and would not have
spoken of the consequences as being so very slight and unimportant--nay,
as so very beneficial.
It was suggested by the three peers, that the old rule had no better
foundation than the indolence, slovenliness, and negligence of
practitioners, whom the salutary stringency of the new rule would
stimulate into superior energy and activity. We cannot help regarding
this notion, however--for the preceding, among many other reasons--as
quite unfounded, and perhaps arising out of a hasty glance at the
alterations recently introduced into _civil_ pleadings and practice. But
observe, it required _an act of Parliament_ to effect these alterations,
(stat. 3 and 4 Will. IV. c. 42,) the very first section reciting the
"_doubts which might arise as to the power of the judges to make such
alterations without the authority of Parliament_;" and yet the state of
the laws calling for such potent interference was in an incomparably
more defective and mischievous state than is imputed to the present
criminal law. Then, again, any practical man will see in a moment, that
the strictness of the new system of civil pleading, which to this moment
occasions not infrequently a grievous failure of justice, with all the
ample opportunities afforded for deliberate examination and preparation
of the pleadings, cannot be safely applied to criminal law for many
reasons, principally because it rarely admits of that previous
deliberation in drawing the indictment, which must be based upon the
often inaccurate statement of facts supplied by the depositions; and
because a defect in them is, generally speaking, irremediable and fatal,
and crime goes unpunished. If the new rule is to be really acted upon in
future, we must, in some way or other, alter the whole machinery of the
criminal law: but how to do so, without seriously interfering with the
liberty of the subject, we know not.
We affirm, therefore, that the old rule--viz. that one good count would
support a general verdict and judgment, though the indictment contained
bad ones also--was a beneficial rule, calculated to obviate _inevitable_
difficulties; and its policy was so transparent to all the great
intellects which have, both as judges or counsel, been for so long a
series of years concerned in criminal cases, that no one ever thought of
questioning it. The supposition of the three peers is one not very
flattering to the distinguished predecessors, with the great Lord
Mansfield at their head--all of whom it charges with gross negligence,
ignorance, and, in plain words, stupidity--in overlooking, from time to
time, a point so patent and glaring. The Lord Chancellor's answer to
their argument is triumphant; and we refer the reader to it.[24] We
respectfully and firmly enter our protest against Lord Denman's mode of
getting rid of the efficacy of a custom or practice which has been so
long observed by the profession; and regard it as one calculated to sap
the foundations of the common law of the land. An opinion, a practice
which has stood its ground for so long a series of years _unchallenged_,
amidst incessant provocation to challenge it--and that, too, in the case
of men of such vigilant astuteness, learning, and determination as have
long characterized the English Bench and Bar--rest upon as solid grounds
as are conceivable, and warrants it subversion only after profound
consideration, and _repeated evidence of its mischievous operation_. Was
any such evidence offered in the argument at the Bar of the House of
Lords, of persons who had suffered either a kind or a degree of
punishment not warranted by law? None: but several cases were put in
which--in spite of past experience to the contrary--inconvenience and
injustice _might possibly_ be conceived to occur hereafter!
What, then, led to this error--for error we must call it? Let us
candidly express our opinion that the three peers were fairly
"_overpowered_"--to adopt the frank acknowledgment of one of the most
distinguished among them--by the plausible fallacies urged upon them,
with such unprecedented pertinacity and ingenuity, by the traversers'
counsel. They have been influenced by certain disturbing forces, against
which they ought to have been vigilantly on their guard, and which we
shall now venture to specify, as having occasioned their _forgetfulness
of the true province of a court of error_--of the functions and duties
of the members of such a court. A COURT OF ERROR occupies a high, but
necessarily a very limited, sphere of action. Their observations and
movements are restricted to the examination of a single document, viz.
the record, which they are to scrutinize, as closely as possible,
without regard to any of the incidents which may have attended the
progress of the events narrated in it, if these incidents do not appear
upon record: and they must be guided by general principles--not such as
might properly regulate a certain special and particular case, but such
as would guide them in all cases. And this is signified by the usual
phrase, that they "must not travel out of the record." Now, we defy any
one to read the judgments of the three peers, without detecting the
undue influence which one extrinsic and utterly inadmissible fact has
had upon their minds; viz. the fact, that the court below had actually
_affirmed_ the validity of the two bad counts. They speak of its being
"_against notorious facts_"--against "_common probabilities_," a
"palpably incredible fiction"--to conclude from the language of the
record, that the "offences" there mentioned did not include the pseudo
offences contained in the sixth and seventh counts. In this particular
case, it _did_ undoubtedly happen, in point of fact, that the court
below decided these counts to be valid counts: but the court of error
can take no cognisance whatever of extrinsic facts. _Their_ only source
of information--_their_ only means of knowledge, is _the record_--beyond
the four corners of which they have no power, no authority, to cast a
single glance; and within which are contained all the materials upon
which, by law, the judges of a court of error can adjudicate and decide.
The Court, in the present case, ought thus to have contemplated the
record in the abstract--and with reference to the _balance of
possibilities_ in such cases, that the court below had affirmed, or
condemned the vicious counts: which very balance of possibilities shows
the impropriety of being influenced by speculations based on matters
_dehors_ the record. However numerous and mischievous may have been the
errors committed by the inferior court, _a court of error_ can take no
cognisance of them, if they do not appear specifically and positively
upon the record, however valid may be the claim which these errors may
notoriously prefer _to the interference of the executive_. Consider what
a very serious thing it is--what a shock to the public confidence in the
administration of justice--to reverse a judgment pronounced after due
deliberation, and under the gravest responsibilities, by a court of
justice! The law and constitution are properly very tender in the
exercise of such a perilous power, and have limited it to the case of
"MANIFEST" error--that is, not the vehement, the immense _probability_
that there has been error--but the CERTAINTY of such error _necessarily
and exclusively appearing from the record itself_. To act upon
speculation, instead of certainty, in these cases, is dangerous to the
last degree, and subversive of some of the fundamental principles of
English jurisprudence. "Judgment may be reversed in a criminal case by
writ of error," says Blackstone, "for NOTORIOUS (_i. e._ palpable,
manifest, patent) mistakes in the judgment, as when a man is found
guilty of PERJURY, (_i. e._ of a misdemeanour,) and RECEIVES THE
JUDGMENT OF FELONY." This is the true doctrine; and we submit that it
demonstrates the error which has been committed in the present instance.
Let us illustrate our case by an example. Suppose a man found guilty
under an indictment containing two counts, A and B. To the offence in
count A, the legislature has annexed one punishment only, viz.
_transportation_; to that in count B, _imprisonment_. The court awards
sentence of transportation; and, on a writ of error being brought, the
court above pronounces count A to be bad. Here it appears INEVITABLY and
"manifestly" _from the record_, that there has been error; there is no
escaping from it; and consequently judgment _must_ be reversed. So where
the judgment is the infliction of punishment "for his offen_ces_"
aforesaid: there being only two offences charged, one of which is
contained in a bad count, containing therefore no "_offence_" at all.
Apply this principle to the present case. Does this record, in
sentencing the defendant "for his offences aforesaid," _conclusively_
and _necessarily_ show that the court regarded the sixth and seventh
counts as containing "offences," and awarded punishment in respect of
them? We unhesitatingly deny it. The merest tyro can see that it is
_possible_--and, if so, where is the NECESSARY error?--that the judges
excluded the vicious counts from their consideration; that they knew the
law, and could discern what were and what were not "offences;" and
annexed punishment to only true "_offences_" in the eye of the law. The
word "offence" is a term of art, and is here used in its strictest
technical sense. What is that sense? It is thus defined by an accurate
writer on law: "an _offence_ is an act committed _against a law_, or
omitted _when the law requires it_, and punishable by it."[25] This word
is, then, properly used in the record--in its purely technical sense. It
can have no other meaning; and an indictment cannot, with great
deference to Mr Baron Parke,[26] contain an "offence" which is not
"legally described in it;" that is, unless any act charged against the
defendant be shown upon the face of the indictment to be a breach of the
law, no "_offence_," as regards that act, is contained in or alleged by
the indictment. The House of Lords, therefore, has exceeded the narrow
province and limited authority of a _court of error_, or has presumed,
upon illegal and insufficient grounds, that the Irish judges did not
know which were, and which were not "_offences_," and that they did, in
fact, consider those to be offences which were not, although the record
contains matter to satisfy the allegation to the letter--viz. a
_plurality_ of real "offences." Where is Lord Campbell's authority for
declaring this judgment "_clearly_ erroneous in awarding punishment for
charges which are _not offences in point of law_?" Or Lord Cottenham's,
for saying that "the record states that the judgment was _upon all the
counts, bad as well as good_?" They have none whatever; their assertions
appear to us, with all due deference and respect, purely arbitrary, and
gratuitous fallacies; they do violence to legal language--to the
language of the record, and foist upon it a ridiculous and false
interpretation. We admit, with Lord Cottenham, that "where the sentence
is of a nature applicable _only_ to the bad counts," it is incurably
vicious, and judgment must be reversed--it is the very case which we put
above; but how does that appear in the judgment under consideration? Not
at all. The two cases are totally different.
And this brings us to another palpable fallacy--another glaring and
serious error into which we cannot help thinking the House of Lords has
fallen, and which is abundantly evidenced by their judgment: viz. that a
court of error has any concern whatever with, or can draw any inference
whatever from, the AMOUNT of punishment. The reasoning of the judges is
here perfectly conclusive. "If a sentence be OF THE KIND which the law
allows, the _degree_ of it is not within the competence of a court of
error. If a fine be an appropriate part of the sentence of a court
below, the excess of it is no ground of error. What possible line can be
drawn as to the reasonableness and excess, so as to affect it with
illegality? It is obvious there can be none. If in _this_ case, the
sentence had been _transportation_, the sentence would have been
_illegal_: Why? Because not of _the kind_ authorized by law in such a
case." Any presumption, therefore, made by a court of error, from the
_amount_ of punishment awarded, as to which of the counts had been taken
into consideration by the judges in giving their judgment, is manifestly
based upon insufficient and illegal grounds. Can these principles have
been duly pondered by the lords? We fear not. Look at Lord Cottenham's
supposition of two counts for libel: one for a very malignant one, the
other for one comparatively innocuous; and a sentence of heavy fine and
imprisonment passed, evidently in respect of the malignant libel, which
a court of error decides to be no libel at all. Lord Cottenham appears
to rely greatly on this supposed case; but is it not perfectly clear,
that it is not a case of error _on the record_--and therefore totally
inapplicable to the case which he had to consider? The defendant would
have certainly sustained an injury in that case; Where is the remedy?
There is _no legal_ remedy, any more than there is when a man has been
wrongfully _acquitted_ of a manifestly well-proved crime, or unjustly
convicted of a felony. The mercy, or more properly the sense of
_justice_ entertained by the _executive_, must be appealed to in either
case; such power of interposition having, in the imperfection of human
institutions, been wisely reserved to the supreme power to afford
redress in all cases where the LAW cannot. Lord Cottenham's reasoning
appears to us, in short, based upon two fallacies--a _petitio
principii_, in _assuming_ that judgment was entered upon all the counts;
the _question_ being, _was_ it so entered? The other is, that a court of
error is competent to infer, from the _amount_ of punishment, that a
defendant has been sentenced upon bad counts. Again: the three peers
admit, that if a sole count contain a quantity of aggravating, but
really "_irrelevant stuff_" (to adopt Lord Denman's expression,) it will
not prejudice the judgment, provided the count also contain matter which
will legally support that judgment. Why should the judges be given
credit for being able to discard from consideration these legally
extrinsic matters in a single count, and not also, by the exercise of
the very same discretion, be able to discard, in considering the record,
irrelevant and insufficient counts, such as in the eye of the law have
no existence, are mere nonentities?
For these, and many other reasons which might be assigned, had we not
already exceeded our limits, we have, after a close and a candid study
of the judgments delivered by the three peers, and the convincing, the
conclusive judgments of the great majority of the judges, come, without
hesitation, to the conclusion, that the Lords have not merely decided
incorrectly, but have precipitately removed a chief corner-stone from
the fabric of our criminal law, and have incurred a very grave
responsibility in so doing. We cannot help thinking, that they have
forgotten the fundamental distinction which our constitution makes
between "jus _dare_" and "jus _dicere_." _Jus dederunt, non jus
dixerunt_--an error, however, easily to be accounted for, by a reference
to their double capacity, and the confusion it occasions between their
judicial and legislative functions. We view with grave apprehension the
power exercised by three members of the House of Lords, of overturning
so well-established a rule and custom as that attested to them by the
judges. What security have we for the integrity of our common law? In
the face of the judges' decisions, how decorous and dignified would have
been the conduct of the House of Lords in giving way, even if they had
differed from the judges; lamenting that such _was_ the law of the land,
and resolving to try and persuade the legislature to alter it, as has
often been done. Witness the statute of 1 and 2 Geo. IV. c. 78, passed
in consequence of the decision of the House of Lords in _Rowe_ v.
_Young_, 2 Brod. and Bing. 165. The House of Commons has resented such
interference with the laws by the House of Lords; who, in the case of
_Reeve_ v. _Young_, (1 Salkeld, 227,) "_moved by the hardship of the
case_, reversed the judgments of the courts below, contrary to the
opinion of all the judges." But the House of Commons, "_in reproof of
this assumption of legislative authority in the Lords_," immediately
brought in the 10 and 11 Will. III. c. 16, which passed into a
statute.[27] May we venture to suggest that the elaborate, and long,
and deeply-considered opinions of the judges of the land, who had been
summoned by the Lords to advise them, were worthy of more than the
single day, or day and a half's examination which they received before
they were so peremptorily pronounced to be "_clearly_ erroneous?" And
may we, with no little pain, suggest to Lord Campbell, that the array of
_Gamaliels_ at whose feet he had _sate_ during his whole life--whose
feet he had indeed so very recently quitted--whose integrity, whose
profound learning, whose sagacity, none has had larger experience of
than he--are entitled to look at his cavalier-like treatment of their
best services, with a feeling stronger than that of mere surprise? In
concluding this long article--in expressing our conviction of the error
of the Lords--we feel one consolation at all events--that if we err, we
err in good company; and that we are not conscious of having
transgressed the limits of legitimate discussion, in exercising as
undoubted a right of its kind, as these three peers exercised in
branding so overwhelming a majority of the judges of the land with the
imputation of ignorance of those laws which all their lives had been
spent in administering. The very existence of the ancient common law of
the land is put in jeopardy by such a procedure as that which we have
been discussing; and our honest conviction, however erroneous, that such
is the case, will suffice to excuse the freedom of our strictures; if,
indeed, we require an excuse for echoing the stern declaration of on
forefathers--_Nolumus leges Angliæ mutari_.
As to him who has reaped the benefit of this lamentable miscarriage--Mr
O'Connell--the law of the land has nevertheless been vindicated, and the
stability of the empire secured, to a far greater extent than he is
willing to acknowledge. Agitation he must continue; he _must_ play out
his base and sordid game. But his powers of mischief are manifestly and
seriously crippled; and we quit him with the language addressed by Pope
to a mean one of _his_ day--
"Uncaged, then let the harmless monster rage--
Secure in dulness, madness, want, and age!"