Blackwood's Edinburgh Magazine, Volume 56, Number 349, November, 1844

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 - 1 Blackstone's Commentaries, p. 69.] 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 - Opinions of the Judges, &c. – (Pp. 1-3.)]

"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 - Opinions of the Judges, p. 23.]

"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."

The main argument of the traversers' counsel was thus disposed of —

"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 - 3 Blackstone's Commentaries, p. 395.] 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 - We quote from the edition of Lord Denman's judgment, sanctioned by himself, and edited by D. Leahy, Esq., (one of the counsel in the cause.)] "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 - A "demurrer" is the mode by which any pleading, civil or criminal, is denied to be (whether in form or substance) sufficient in point of law; and a plea is the mode by which is denied the truth of the facts which the pleading alleges.] 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: —