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

"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 - Opinions of the Judges, p. 19.]

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 - Vol. I., pp. 68-9.] 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 - Williams v. Germaine, 7 Bar. and Cress. 476.]– "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 - Opinions of the Judges, p. 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 - Judgment, (by Leahy,) p. 36.] 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 - Opinions of the Judges, p. 28.] 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 - Judgment, &c., p. 43.] 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 - Opinions of the Judges, p. 28.] 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 - Lord Denman's judgment.] 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 - Ditto.]– 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 - Ante.] 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 offences" 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 - West's Symbolography, and Jacob's and Tomlin's Law.] 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 - Opinions of the Judges, p. 29.] 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 - 2 Bla. Comm. 169; and see Mr Christian's Note.] 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!"

MY COLLEGE FRIENDS

No. I

John Brown

Did you ever happen to know a man who spent a whole Christmas vacation in Oxford, and survived it? I did. And this is how it came to pass.

"Frank," said the governor one evening after dinner, when the conversation had turned upon my approaching return to college, and the ticklish question of supplies had been disposed of – "when the deuce do you mean to go up for your degree? I have a notion this next term is your fifteenth, young man?"

"Why no, sir – that is, not exactly; you know" —

"Oh! true – I forgot that confounded rustication business. Well, it's your fourteenth at all events, and I think that's enough."

"Well, sir, I was thinking to have a shy at it after Christmas."

"Shy at it! You've always been shying at it, I think. I hope it mayn't end in a bolt, Master Frank!"

I laughed dutifully at the paternal wit, and promised to go to work in earnest the moment I reached Oxford.

This was a resolution announced periodically like the ballot question, and with much the same result. So the governor only shook his head, yawned, looked at the bottle, which stood between us nearly empty, and prepared apparently for an adjournment.

"I'll tell you what, sir," said I, emptying what remained in the decanter into my glass, and swallowing it with a desperate energy befitting the occasion, "I'll stay up the Christmas vacation and read."

"The deuce will you! Why, Frank," continued the governor, sorely puzzled, "you know your cousins are coming here to spend the Christmas, and I thought we should all make a merry party. Why can't you read a little at home? You can get up something earlier, you know – much better for your health – and have two hours or so clear before breakfast – no time like the morning for reading – and then have all the day to yourself afterwards. Eh, why not, Frank?"

"If you'll allow me to ring for another bottle of this Madeira, sir, (I declare I think it's better than our senior common-room have, and they don't consider theirs small-beer,) I'll tell you. – I never could read at home, sir; it's not in the nature of things."

"I doubt whether it's much in your nature to read any where, Frank: I confess I don't see much signs of it when you are here."

"In the first place, sir, I should never have a room to myself."

"Why, there's the library for you all day long, Frank; I'm sure I don't trouble it much."

"Why, sir, in these days, if there are any young ladies in the house, they take to the library as a matter of course: it's the regular place for love-making: mammas don't follow them into the company of folios and quartos while there are three volumes of the last novel on the drawing-room table; and the atmosphere is sentimentality itself; they mark favourite passages, and sigh illustrations."

"Precious dusty work, Frank, flirtations among my book-shelves must be; but I suppose the girls don't go much beyond the bindings: they don't expect to get husbands by being blue."

"Not exactly, sir; reviews and title-pages constitute a good part of modern literary acquirements. But upon my honour, sir, one hears young ladies now talk of nothing but architecture and divinity. Botany is quite gone out; and music, unless there's a twang of Papistry about it, is generally voted a bore. In my younger days – (really, sir, you needn't laugh, for I haven't had a love affair these two years) – in my younger days, when one talked about similarity of tastes and so forth, it meant that both parties loved moonlight, hated quadrilles, adored Moore's Melodies, and were learning German; now, nine girls out of ten have a passion for speculative divinity and social regeneration."

"Ay, one sort of nonsense does just as well for them as another: your cousin Sophy bothers me to build an Elizabethan pigsty, and wanted her poor mother to dance with the butler in the servants' hall last Christmas, when the fellow was as drunk as an owl: I hope it mayn't end in her figuring off herself with the footman; for Sophy is rather a pet of mine, and a right-down English girl after all. But, Frank, if you can't read in peace in the library, you surely could have a room fitted up for yourself up stairs; and you shall have the great reading-desk, with lights, that was your grandfather's, that stands in my little sanctum; (he made more use of it, poor man, than I do;) or I don't know but what I might spare you the little room itself, if it would suit you – eh?"

"Oh, my dear father! I wouldn't disturb you on any account," said I, rather alarmed at the extent of my worthy parent's liberality in the cause, and fearing it might end in the offer of the whole family to pack themselves in the attics, and leave me a first floor to myself – calculating, too, the amount of hard reading commensurate with such imposing preparations. "What would become of the justice business of the parish, sir, if we shut up your tribunal? I don't suppose my mother would like to have the constables and the illegitimates introduced either into the drawing-room or the kitchen," (this was, as I meant it to be, a poser; if Mr Hawthorne senior had a hobby, it was his magisterial authority.) "The fact is, that at home, up-stairs or down-stairs, I couldn't read. I should have not only my own idleness, but the various idlenesses of the whole family combined, to fight against. My sisters would be knocking at the door every half hour, if only to ask how I was getting on: Bob would tease me to come out skating, and Charles would start me perpetually after wild-ducks or woodcocks. And you yourself, sir, if I am not much mistaken, would think it odd if I didn't take a ride with you as usual after breakfast. Then one can't be expected to crawl about one's books by candlelight on a winter's morning; and after a six o'clock dinner who can read? After tea you know, sir, my mother always likes a rubber when I'm at home; and if you are going to have those girls, Jane and Sophy, down this Christmas" —