The Sun. — London, England, 1844-09-05 00:00:00

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Among those present we observed the Marquis of Winchester, the Earl of Verulam, the Earl of Stradbroke, the Earl of Shaftesbury, the Earl of Hard wicke, Viscount Strangford, Lord Redesdale, Lord Beaumont, Lord Brougham, Lord Denman, Lord Cottenham, and Lord Campbell. The Bishop of LICUFIELD and COVENTRY read Prayers. The LORD CHANCELLOR laid on the table the sup plementary report of the Commissioners of Bye-laws. His Lordship then took his seat upon the woolsack at a quarter after ten. GRAY ?. THE QUEEN (IN ERROR.) This case was the first called on for judgment. The LORD CHANCELLOR said, that in this case he Could not find anything to add to the arguments of the majority of the judges, that he was satisfied with the conclusion to which they had come, and he therefore moved that the judgment of the court below should be reversed, and that a venire de novo should, if necessary, be granted. Lord BROUGHAM agreed entirely in the same opi nion, and in fact never entertained a doubt upon the sulject. Lord CAMPBELL was also of opinion that the judg ruent ought to be reversed, and with all respect for the opinion of the majority of the Irish judges and of the Learned Baron, who agreed with them, he thought they were confounding the reason and the rule. The reason for granting the peremptory challenge might be in favorem vice, but the rule was to grant the peremptory challenge in all cases of felony, and so the rule must remain until the Legislature should think proper to alter it. The motion for reversing the sentence was then a greed to, and it was o rder e d th a t the c o urt below do Issue a venire de novo. O'CONNELL AND OTHERS v. THE QUEEN (IN ERROR)—JUDGMENT. The LORD CIIANCELLOR moved that in this case the Judgment of the court below be affirmed. When this ease and the record of the proceedings in it were first Presented at their Lordships' bar, it had occurred to him, as he believed it had occurred to every other Noble Lord who had attended to those Proceedings, that it would be proper, both With reference to the questions to be decided, and to the nature and character of the other cir cumstances connected with the case, and in order to avoid all possible suspicion of political bias on t t h, e part of their Lordships' House, to have re assistance of the judges. That assistance nad been requested, and those learned persons had assembled in their Lordships' House, ;and had at tended with their accustomed patience to the elabo rate arguments which with great legal ability had b een urged at their Lordships' bar. As soon as was c onsistent with their other duties, those learned per sons had as s embled together, had :consulted on the ;!ihjett and after giving it most mature and atten tive consideration, had attended before their Lord suiPsi and had communicated to them the results of their consideration. With respect to all the points, I!Cept one question, their judgment was unanimous. ,With respect to that other question, seven of the le arned judges, with the Chief Justice of the Court , O f Common Pleas at their head, had expressed a clear, uistinct, and decided opinion against the objections Which had been urged. Two others of the judges, f or Whom he had the greatest possible respect, pro nounced an adverse opinion ; but in his opinion, and L e /night be permitted to say, that he was sure their n rdships' concurred with him, at least such of the m as were present on the occasion, that that n t'nion was accompanied with much doubt and hesi tation. He thought, under these circumstances, unless their eir Lordships were thoroughly and entirely satis "o,9, that the opinion of the great majority the judges was founded on a palpable er ror that they would feel themselves bound their decision to adhere to and support their judg ,,,ent, and to act in conformity with it. He would state the nature of the question ; and after t he full discussion it had already undergone, he would o nly briefly suggest such arguments as occurred to his mind in support of the opinion which he entertained. '''ne indictment in this case consisted of several counts -they were elel en in number. A general judgment had been pronounced by the court. Some of these jcounts were st a t e d , b y the unanimous opinion of the udg es , to be defective in point of law—to charge no indictable offence. Others of those counts, in the opinion of the judges, were defective in another re spect—not that there was any defect in the counts themselv es , b ut i n the findings, and the enterings of the findings of the jury on those counts. The ques tion was, under such c ircumstances, whether on a de fective count in an indictment, and other counts which Were defective in respect to the findings and enter ings of the findings upon them, a general judg ment could be sustained ? Their Lordships 'would observe that this was a mere technical question -- a question, he admitted, of great im portance, which was never presented to the court be low, not arising from their judgment, but arising out of the m anner i n which the judgment was entered lip by those who were to discharge that duty. He could only: repeat such of the arguments already ad dressed t o their Lordships, but he must be allowed to s ay that he always considered it as a clear, distinct, an d undoubted principle of the criminal law of Eng land, that a genera l ver di c t was sufficient in a case of t ,V l ' nature. Lord Mansfield laid it down in the most dis tinct and full terms; he drew a distinction between Ci vil and criminal cases. In civil cases he says, where there was a general verdict and general damages ten by the , jury upon a declaration consisting of several counts, and one of those counts was defective, the „ Judgment might be arrested, or, if it was entered 13 + it might be set aside on a writ of error • but with re gard t o th e same p o i n t— name ly, a s t o the effect of 011 e defective count where there was a general judg ,tlliera, he said that was good in criminal cases. He Sa me stated it was goo d i n cr i m i na l cases , an d, at the ni ne time, he regretted that the rule had Byer b een diff erent l y l a id d own i n c i v il cases . It was sa id there was an exception to this rule, to which he Wouldse presently allude. Lord Mansfield laid down ; 4 '.e rule in terms, broad, general, comprehensive, and th e any exception whatever. But that was not t . opinion of that Learned Judge alone. At that So me he was supported and assisted on the bench by tribunals of the most able judges that ever adorned the Mansfield of the country, and that opinion of Lord ansfield was expressed in their presence, and of 011 , rse had their con currence. That it was not an 0 i tzlion hastily formed was obvious from this c i rc u m - S tance, that on a subsequent occasion, in another case re ported in " Cooper's Reports," he laid down the s ame doctrine in the same terms, in the same com prehensive manner, without any exception or qualifi cation whatever. He took it, therefore, that it was t he general rule, and from the first moment that he en tered the profession down to the moment that he he ard it agitated at their Lordships' bar he never ii ae ard it called in question. It was uniformly acted i t P° ll without doubt and hesitation. He found in all the treatises and text-books on ite subject. For the first time he heard s tated at their Lordships' bar that that pia Only applied to motions in arrest of judgment. he had n ever h ear d o f suc h a d oc t r i ne b e f o r e , and in w,,eci as quite sure there was no case to sanction it— s i un to warrant it—no authority to be stated wb r , s "Pport of it. The Learned Baron (Parke) t tir „: %Yes in a minority on this occasion, said he was v r lsed to find it called in question. He (the Lord and confessed that he shared in that surprise, ati be was quite satisfied, after all he had heard on g ; subject, that there was no ground for doubt—no p ose d th e e xception which had been insisted on. b e s erve what was the constant practice at the bar, t ad from that practice they would best know and th' What the law was. In civil cases the counsel for orie Plaintiff deliberately examined the record, to see th e %ll at Count the verdict was to be entered up, for it ti Purpose of averting the consequences of entering Z i n a bad- count. That never took place in a cri ln t ent , ease ; and this could not arise because less at sei ,„ I° ° WU given to criminal cases, or because coun grn'''ere less astute. Now what was stated as the ) ( C o n " for exception ? It was said, how could they w that a part of the punishment had not been tra rh arde d on a defective count ? In civil cases g ages were awarded by the jury in an aggregate the' e and the court could not tell what portion of T h fo Were awarded in respect of the defective count. 44 ,,,e3' had no means of apportioning the damages; 0 . 10 '4 itherefore it was necessary that the judgment be arrested, or if entered up, that it should be c ase But no such rule prevailed in criminal b e a ----11 was not necessary that punishment should ti oh warded on any particular count. No such posi a "'ld be sustained. person could tell who of what 11 11 ' 4 in the confidence of the judges in respect fe re at judgment had been awarded, unless by re counte to the record it se lf. If there was a defective j ak , , z did it by any means f o llow that the learned p art awarding awarding puni s hment had appropriated any co utl Ar assigned any part of it in respect to that Ti aA There w as no similarity in the two cases. could not f rom reason argue from one to the ' other. They must assume, unless the contrary, was distinctly shown, that what the judges had done in that repect was to enter up judgment on the good and valid count. Upon a writ of error they were not allowed to conjecture or decide upon probability. They must look to the record, and unless the record showed on the face of it a manifest error in the ap propriating of punishment they could not reverse the Judgment. That was said by one of the learned judges who was in favour of arresting the judgment, and by consulting the terms in which the judgment was pronounced, they would find that the Judges took this into their consideration when judg ment was pronounced. They should not, there fore, run the hazard of reversing a judg ment upon a point which it appeared was taken into consideration by the judges when judg ment was pronounced ; and, independently of this, let them look to the record itself, and see whether in the face of it there was any ground for the objection taken. Every record must be construed according to its legal operation. They could not go out of the record. Now, what was the judgment? The judg ment in this case was, that the court adjudged the parties for their offence aforesaid to be fined and im prisoned. There were two of the counts defective ac cording to the unanimous opinion of the judges, because they charged no offence. Could they then, construing the record according to the language of the record and the legal interpretation of it, when the words of the judgment were for offences, say that the judgment applied to those counts which bore on the face of them no offence whatever ? He would say that was inconsistent and incongruous, and he was sure their Lordships would not sanction such a con struction. The Learned Baron who was in the mi nority seemed to feel the force of that, and gave no answer to it. But he attempted to obviate the force of it by referring to the other counts which were not erroneous in themselves, but on which the findings were defective, and the entering of them erroneous. It was the unanimous opinion of the judges, and he concurred with them in that respect, that the findings of the jury, which could not:be sustained, and which were erroneous, were altogether null and void. He considered that such findings were no findings at all, and that a good count upon which there was no finding was the same thing as a bad count on which there was a good finding. It was a mere nullity—it was not for the offence upon the record, but upon the finding of guilty. Now, he adopted the opinion of the judges that the findings were a nullity, and, therefore, that there were no findings at all. Such were the conclusions to which he had come on the record. He was of opinion, if the record was properly construed, it would be considered as containing an award of judgment which was properly laid. In the present- case, on the face of the record itself, he considered there were no defects, and in that opinion he was supported by the authorities of the first judges of the land. Now, what were the authorities? Why, the first was the case of the King v. Powell. ' Who were the judges who presided on that occasion ? Why, such men as Lord Tenterden, Mr. Justice Taunton, and Mr. Justice Patteson. Now, the judg ment that had been given in that case he considered decisive upon the present one. Another case that had been referred to was that of the King v. Rolls. That was the case of e.ri information for the suborna tion of perjury, and in that case it was decided that if one assignment was good it would support the judgment, and it could not be invalidated on a writ of error. The third case that had been referred to was that of the Queen v. Ingram, and in that case the court decided that the judgment was good if there was only a sufficient count to sustain it. But then there were another clsss of cases upon writs of error themselves, to which he would now refer, and which led to the same conclusion. It was said that there were distinctions between cases in error and in arrest of judgment—he could not see that; and in support of his opinion he might advert to the case of the King v. Fall. That case was an indictment for obtaining money under false pretences; the judgment was en tered up and a writ of error was brought, and upon that being argued by Mr. Fielding, whom many of their Lordships as well as himself could remember, the writ of error was dismissed, and the two counts ob jected to were declared to be valid. Such was the decision of such men as Lord Kenyon and Mr. Justice Buller. The Noble and Learned Lord then referred to the ob servations of Mr. Baron Parke on this case, and observed that the Learned Baron said the judgment was a judg ment of transportation, which could only be supported by the two counts. Now that was a most extraor dinary answer, for it made an additional objection. If there was a general judgment, and all the counts were good, and the iudgment would apply only to two of the counts, then, according to the principles contended for, that judgment would be erroneous, because it was a general judgment sustained only by two counts. That was the answer attempted to be given ; so that there was an additional objection not only where the counts were defective, but even if the counts had been good the judgment, according to the principle in question, would be an erroneous judg ment, because it was sustained only by two of the counts. Therefore, he apprehended that that was a strong and almost decisive authority in favour of the present judgment. But there was another authority, which occurred about the same time, not quite so stringent an authority, but going exactly in the same direction. It occurred, he thought, the year before. lie alluded to the case of the " King v. Mason." There was a good count, and it was contended, and the count admitted, to be defec tive. By whom was that case argued ? By a gen tleman whom they all remembered—a most acute lawyer, conversant with every technicality connected with the profession—he alluded to Mr. Marryat. Did Mr. Marryat make the objection that this count could not be sustained ? There was a bad count admitted to be bad, and this was a general judgment. No such thing. Instead of doing that, he confined himself to labouring the invalidity of the special count. Did not that show what his opinion was ? Did not that show also what was the opinion of the court, consisting of the distinguished individuals to whom he had already referred ? If not, would they not have interposed and said, •" Why do you labour this point, Mr. Marryat, there is one count admitted to be bad, and therefore the judgment cannot be sus tained?" There was another authority in the time of Lord Eldon, the case of Hill, referred to by the Learned Baron. That was the case of a person tried at the assizes for obtaining money under false pre• tences. The indictment contained several counts. The party was found guilty ; he was sentenced, and a general judgment was pronounced. The question as to the sufficiency of the counts came under the consideration of all the judges. As the result of the argument, one of the counts was decided to be bad : so that in that case there was :a general judgment upon a record, consisting of several counts, one of which was admitted to be bad. A writ of error, therefore, under such circumstances would, according to this doctrine, have prevailed. What ought the judges to have done after they had decided the ques tion ? According to this doctrine they ought, as a matter of course, to have recommended the pri soner to a pardon. Did they do so ? No such thing. The judgment : was carried into effect. Had he not then made out, by a host of corresponding authorities, the position for which he contended ? He said it depended on prin ciple, and that the record in this case was sufficient, according to the legal authorities. The principle was supported by the host of authorities to which he had referred, by Lord Mansfield, in the first instance, in the Court of King's Bench, by the subsequent autho rity, at an earlier period than Lord Mansfield, in the time of Lord Holt, and brought down to the pre sent time. No such objection was ever made, though opportunities for making the objection had constantly occurred. Therefore. it was perfectly clear that his position was correct. Though the point had never come expressly for opinion before the judges, it had always been considered free from doubt—an estab.. lished point of law. Difficulties had been urged, to which he should for a moment refer. One was the difficulty arising from a pardon—a pardon as to a part. It was not at all necessary for him to say a single word upon that subject, be cause all the judges, even the dissenting judges, said there was nothing in that agument. The argu ment would equally apply to an indictment upon several counts, where such of the counts was free from objection. It proved, therefore, too much, and on that account it had no validity. Another difficulty I which had been insisted upon was the difficulty in which a party would be placed on pleading autrefois convict. That had received a satisfactory answer from the learned judges ; there was no foundation for it. In all cases of pleas of that kind the question was one of identity of error. It was a question of evidence. The question was whether the corpus delicti, upon which the party had been convicted, was one upon which the judgment could be affirmed. That was a difficulty which could only be settled by evidence, and the objection was not one, therefore, which could prevail on the present occasion. Now, it had been said that there was no express de cision on the subject. A word as to that. If a case were so clear, so free from doubt, that no man, either barrister, attorney, or judge, even entertained any scruples with respect to it—if the point had been uniformly and constantly acted upon and recognised, was it to be said, because there was no decision upon the point, that therefore it was not to be considered as the law of the land ? Why, the argument led to this conclusion, that the more clear the law, the more free from doubt, the more uncer tain it would be. It, was usage, practice, recognition, that constituted the law of this country. Many of the doctrines and opinions which were a part of the acknowledged law of the land, were doctrines and opinions with respect to which they would look in vain for any direct decision. The practice, the usage, the recognition, were considered as pi ecedents esta blishing the law, and this was the foundation on which the common law of this country was based. It Was admitted in this case that there never before was a doubt on the subject, and the Learned Baron confessed that he had heard the point for the first time with surprise. No case was cited, no authority referred to, no dictum, no text-writer for the objec tion which was now for the first time in this extra ordinary case advanced. Under these circumstances, would they, or would they not, recognise the decision of the great majority of the judges ? As he had said before, that in a question of this kind of technical law, with which they were every day and every hour conversant—when they found a great majority of the judges, with that eminent lawyer, the Lcrd Chief Jus tiee of the Court of Common Pleai, at their head, pro nouncing a clear, 'distinct and decided opinion, nothing buts case free from all doubt—a conviction amounting to absolute certainty—could justify their Lordships in rejecting such authority. And it was, therefore, on these grounds ' on the ground of authority for the reasons which he had humbly stated, on the ground of the recognition of this principle as a principle re cognised in the law of England 'from time immemo rial, that he called upon their Lordships to resist this objection. He should say no more upon this point. He requested their Lordships, in supplement to his deficiencies, to refer to the papers upon their table, and to the able arguments which the judges had re ferred to on that subject, and he was quite satisfied that after a due and careful consideration of the whole subject, it was impossible that they could yield to this objection. With respect to the other points it was hardly necessary for him to say a word, and for this obvious reason, that all the judges had concurred in the opinion, that the other objections could not be sustained. To one of these objections, however, he should very shortly advert, because he believed that his Noble and Learned Friend the Chief Justice of the Queen's Bench, entertained a strong opinion as to that part of the case. The objection to which he begged leave now to refer was the objection as to the jury, the challenge to the array. The court below had decided that the challenge to the array could not be sustained. The judges, when they had consulted on that occa sion, had unanimously decided that the challenge to the array could not be sustained. On looking into the law books he believed they would find that there was only one principle on which the challenge to the array had ever been allowed. It was something con nected either with the prosecution or the conduct of the officer by whom the jury were summoned. Lord Coke said that if the sheriff was unindifferent—if he was not equal between the parties—that was a ground of challenge to the array; if he committed any fault in returning the jury, that also was a ground of chal lenge to the array ; if he was in such a situation as to lead, under certain circumstances, to an inference that he was in favour either of one side or the other, that, too, was a ground of challenge to the array. These were "the only grounds. They were confined to the sheriff, or the other officer, whoever he might be, who returned the jury. But in this case there was nothing on the record imput ing anything whatever to the sheriff. He was not stated to be indifferent—he was not stated to have committed any fault. It was not suggested that he I was not equal between the parties, or that there was anything in the nature of favour. There was nothing, therefore, upon that record, according to the law of the country, as laid down by all their best writers upon the subject, to raise the question of challenge to the array. He knew of nothing in any law-book, any decision, or any text-writer, that extended the challenge to the array beyond the limits he had men tioned. He would suppose, as was said by the Lord Chief Justice, the challenge to the array to be allowed. The writ must be sent to the coroner. What would the coroner do ?: Why he must pursue precisely the same course which had been pursued by the sheriff—he could not deviate from that course. It was said, " You might go to the last book—this book is defective, but you might go to the last one." lie was quite satisfied that upon a proper construction of the Act of Parliament that would be impossible. When no book was made then the Act of Parliament gave power to adopt the last book : but when the book had been made up, as it had been in this case, it was not a case which came within the Act of Parliament, and the jury could not be selected from the last book. It was almost impossible, considering the number of jurymen inserted on the jury-books for the city of Dublin—it was almost impossible to suppose that mistakes would not conssantly arise ; and the conse quence must therefore be, that the books would be defective ; and if they were to go back to the last book, in all probability that would be defective also. But was this a case without a remedy ? Undoubt edly not ; but the appeal to that tribunal was not the remedy which the law allowed. It had no authority to sanction it, and no decision to support it. What the remedy might be was not before their Lordships at present. They were dealing with the record only. The matter of inquiry which had been raised was, whether this was a remedy which the law had pointed out for a defect of this kind, which had been , alluded to. He was satisfied that it was not. lie would not have addressed himself to this argument, if it had not been for the profound respect which he entertained for the opinion of his Noble and Learned Friend at the table (Lord Denman). The learned judges had pronounced an unanimous opinion on the subject. That opinion corresponded with the opinion which had been pronounced in the courts below ; and for himself, he took the liberty to state, with all de ference for his Noble and Learned Friend, that he entertained no doubt respecting it. It was hardly necessary for him, under these circumstances, to refer to the averments on the record. There was, how ever, this single fact, which was remarkable, that although the traversers said that they knew nothing of the making up of the lists, and that they were made up without their concurrence, yet none of them stated that they did not know that the books were made up of defective lists. This was all he had to say on this part of the case. There were several subordinate points on which the learned judges had expressed an unanimous opinion, and there was no reason to think that any of his Noble and Learned Friends would differ from this opinion. With respect to the point of discontinuance, the answer of the Lord Chief Justice was conclusive, that there could be no continuance entertained con sistent with the prov sions of the Act of Parliament. Then, again, as to the plea of abatement, and the de murrer to that plea, nobody could doubt that either in the criminal or the civil law that plea of abatement was altogether vicious. Then there was another point, which was a subordinate one, namely, as to the swearing of the witnesses before the grand jury. The Act of Parliament applying to this part of the case was passed for the purpose of general convenience. He humbly submitted these reasons why they ought to concur with the learned judges in the opinion which they bed formed with respect to the great bulk of the questions which had been sub mitted to them, and why he thought they ought to concur in the opinion of the great majority of those judges, pronounced distinctly, firmly, and without hesitation, in opposition to the doubt and hesitating opinion suggested by the two learned judges to whom he had referred, but with respect to whom, however, he begged leave to express the deep sense he enter tained of their attainments and profound learning. Ile submitted that on all these grounds, and under all these circumstances, the judgment ought to be affirmed. Lord BROUGHAM expressed the satisfaction he felt at having received in the consideration of this case the able assistance which had been given by the learned judges in their answers to the questions which had been proposed to them. It was a fit and proper course to call for that assistance in disposing of this case. But they had adopted it without any regard to the supposed difficulty of the questions which were likely to be raised before them. They had called in the learned judges because the case was one of great public importance—it was a Government pro secution. It regarded an extensive conspiracy, and, above all, it was a political question—one of exceed ingly great temporary interest among the parties which divided the country, and which also divided the two branches of the Legislature. Nothing, therefore, could be more desirable than ;that they should as far as possible and consistently with their duty call in the aid of the learned judges, to ask them how the points of the law which might arise in this case would be regarded, and would be dealt with by them sitting in their own courts — those courts from which all cause of party feeling, whether of one class or of the other, was ex cluded—where all bias, whether from popular in fluence or the authority of the Executive power, was barred—those judges, who were placed by their exalted position and their unsullied character above any such vulgar control, who kept themselves un moved on their elevated heights— " Despicere unde queas alios faseri per viam erantes." They had had the benefit of that help, valuable in all cases. He agreed, however, that they were not bound up by the opinion which those learned persons had given. The question had not been referred to their decision, they had only been asked what their opinion upon the points submitted was. The court of error was to be guided, not by particular precedent, but by the general course of precedent, and by every usage. That such had been the opinion of the profession and of the judges there could be no doubt. The most important points which were now before their Lordships were those raised in the 7th, 3d, and 11th questions, which had been submitted to the learned judges. In the opinion which had been expressed by the majority of them he fully concurred. The Lord Chief Justice of the Common Pleas had beeh fifteen years on the bench, while another of those learned judges had been constantly engaged for forty years in the courts of criminal jurisdiction, while a third had been more than half a century engaged in the same course, and all these had decided in favour of affirming the judg ment which had been pronounced by the court below, and they had decided that there could be no diffe rence between a case in which punish men t 1 was fixed by law and one in which the punish. tt . THE SUN, LONDON, THURSDAY MORNING, SEPTEMBER 5, 1844. ment was left to the discretion of the judge. 1 The other judges all concurred in the opinion that such was the practice. They all concurred in opinion that a sentence passed in this manner could not be taken to be a sentence passed upon the aggregate of the counts, but must be considered as one sentence. Mr. Justice Patteson stated that he believed this was the first time such a point had ever been mooted. There was but one universally received opinion in favour of the assumption that one good count was sufficient to sustain a judgment. Even Mr. Baron Parke himself did not dispute that point—he in ex press terms admitted it. He said that ever since the commencement of his professional life the distinction between criminal and civil cases had been well esta blished, and it was with surprise that he had heard it disputed at their Lordships' bar for the first time in his life. The Learned Baron did not doubt as to the existence of the rule, but he doubted whether it had not been carried too far—whether conclusions had not been drawn from the dicta of various learned judges which went much further than could be supported by those dicta. But all the judges, with two exceptions, held that th e ru l e d ec l ared the law correctly. Mr. Baron Parke was the only one who at any length entered into the objections. But the Learned Baron I stated that he had founded his opinion with much hesitation, and expressed great doubt s rath e r than any decided opinion. No less than eight times had that Learned Baron expressed his doubts. He said he must pause—he doubted if he could answer those questions in the affirmative, and he concluded by stating, according to the opinion which he had de livered viva voce in their Lordships' House, and which differed in that respect from the written opinion, that he doubted whether he ought to advise their Lord ships to affirm the judgment—an incorrect expres sion, as the judges were then to communicate infor mation to their Lordships, and not to give them advice. Those doubts, however, were not expressed by any of the other learned judges in giving their opinions, and that fact certainly entitled those opinions to greater weight, while the great doubt expressed by the Learned Baron tended to diminish the weight to be attached to his authority. It had been universally held by all the learned judges that the sixth and seventh counts were invalid. Now, he (Lord Brougham) felt the greatest reluctance to differ from those learned persons, but he must say that the argument of the Learned Lord Chief Justice on that point had failed to satisfy him that the offence had not been set forth with sufficient certainty in those two counts ; perhaps he ought to say that he felt so doubtful on the point that he was unable to agree. The Latin word for fear, or causing to fear, was sufficiently clear and precise, and he thought the object alleged showed with sufficient precision on whom the intimidation was to be exercised. "That Object was to procure a change in the laws. Now, that change must be produced either by means of the Parliament, or in opposition to the Parliament. If it were to be brought about by means of the Parlia ment, then it was clear that it was the Parliament which was not to be intimidated. If the change was to be brought about in opposition to the Parliament, then that was in itself an offence ; but when he considered how much greater was the experience of those learned judges in criminal jurisprudence than was his own, he was bound to suppose that he was wrong, and that they were not wrong, and _he ...could not . set up his inexperienced judgment against 1 their experienced ones; and so with regard to the third and eleventh counts. If he were inclined to doubt with the Learned Baron, seeing there were seven judges of a contrary opinion, he should have no confidence in his own doubts ; and if he were called to consider the doubts of the Learned Baron himself, he should have still less confidence in setting up his doubtful opinion against the clear and unhesitating opinions of the other learned judges. But it was immaterial what might be his opinion with regard to the 6th and 7th counts, because the same points would be raised on the finding of the jury on the four first counts, which were admitted to be bad; and it was c l ear that a bad finding on a good count w as equa ll y i ncapa bl e of supporting the judgment as a good finding on a had count. Therefore the point was equally raised by the finding on these counts being bad, as by the 6th and 7th counts being bad. He came now to the only point on which there was any difference among the judges—namely, the 3d and 11th questions. He had already stated the difficulty which he should have in differing from the clear and unhesitating opinion expressed by a large proportion o f the learned judges, but his opinion went entirely along with theirs. The first thing that struck him was, that the universal opinion of all the judges admitted that such was the rule. Mr. Baron Parke himself expressed his surprise at hearing the contrary stated; not ' merely was the opinion against the objections urged, but the practice had always been conformable to that opinion. Could anything be more desirable than that such practice should,be upheld ? It was an appalling course which they were called on to adopt when they ' were desired to decide that in all those cases without number in which verdicts had been returned upon several counts, one of which was bad, and in which sentences had been passed and executed, that every one of these judgments would have been reversed if they had been brought before their Lordships by a writ of error. It would be with insuperable reluct ance that he should coma to such a decision. He must see clearly , that all that had been done before had been done in error, before he could pronounce k judg ment of reversal. No mere doubt, however grave, would justify such a step, and when he found that the large majority of the judges were of opinion that the universally received doctrine was correct, he could not doubt but that such was the practice of ages to the uncontradicted law of the land. But it was said that this doctrine must be received with qualifications, that the case was a new one and had never been decided on argument. He would ask how much of the known and admitted law of the country would be struck out, were all struck out on which no decision had been for mally p ronounce d ? Might they not say that th a t doctrine had no d ec i s i on t o support it because it had never been denied? The present opinion had never even been brought into doubt. But it was said again that if the objection had been raised, it could not have been met. But to that his answer was, that this supposition had no weight ; for, if the objection had been raised, the majority of th e court before whom it would have been raised had heard it already_ argued, and it had been by them di sposed of. Therefore, he did not state it as a DOss ihil; • but as a fact absolutely and un questionably true, thati theojobj ection had been taken and argued in the court below upon the pre sent case, it would have been overruled ; and the re mark with which he was now dealing, would, as an objection, be displaced. But the objection was really of no amount, for it was the duty of the court, in passing its judgment, to bear in mind those counts to which there were so many and such potent ob jections. But it was said that these arguments applied to decisions on motions for arrest of judgment only, and that the: 1•e were not of the same weight as the authorities upon o f writs error. He answered— first, that some of the cases which had been quoted were on writs of error, and net on motions in arrest of he did not judgment; go with those who gave no weight to the decisio ns on • motions for arrest of judgment. He held that those latter • • decisions very strongly and clearly showed that the courts would have given the same judgment if the cases had come before them upon writs of error. His reason was this—that he held that nothing could be more absurd and inconsis tent than for the courts to have taken that course which they would have taken if the distinction now pressed were admitted. For to what would it amount but this—that the court, in motions in arrest of judgment, had said "we will not arrest a judgment, but pro nounce it, although it will be nought, and when we sit on the other side of the wall in the Court of Exchequer Chamber, we will reverse it." The deci sion was not to declare some counts bad, and then to enter u p judgment on the counts which are good. This was not the cours e in this case, or in any of those which were cited. The course which was adopted was to enter the judgment generally, the effect of which was to keep the judgment on all the counts, the arrest being useless, as there were good counts on which the judgment could be given equally as on the bad ones. Therefore, the judgment was upon all the counts—on each rather than on all—on each severally rather than upon all conjointly. The court must have held that the judgment could not be reversed in error, else they must have granted the motion and confined their judgment to the good counts. It was absurd to suppose that the same court sitting in error would not affirm the same judg ment which, when sitting in arrest • of judgment, they had affirmed. The court had never said that all the counts were good; but when it was argued that some of the counts were bad, the court said, B e it so; but there are counts which are good as well as bad counts and let the on the good. judgment st and " Let their h• Lo dr 3 ips listen to what the state of the law was. The defend dents had only to bring the writ of error the moment the judgment was entered, for there w as no d ec i s i on as to which were the good counts, and which th e b a d, f or the writ of error, if brought, must be delivered. But the fact was, no writ of error was brought in any of these cases but the present; and what' could be more manifest than that in those cases such was the opinions of the parties ' themselves and their counsel. It should not be forgotten that this v iew was supp or t e d , b y t h e venera ble authority of Chief Justice Eyre and Lord Mansfield. But, on the other side, no opinion, even of a text-writer, had been brought forward to support the opinion, or rather the doubt, of the Learned Baron ; but the Learned Baron admitted that the au thorities, so far as they went, were against him. But the Learned Baron quoted no authority, no dictum of a judge, nor either of a text-writer. In referring to Lord Mansfield's dictum, not decision, he (Lord Brougham) must observe that there might be a question vn which that eminent judge was f right in expressing his doubt of the law did i not see civilhow cases ; could for bea slon as gjuri es gave their verdi c t s as at present, he (Lord Brougham) otherwise. But i n criminal cases the law was clear from any doubt. The cases decided, whether in arrest of judgment or in writs of error, naturally deserved more weight than these dicta. He thought the attempt had not been success ful to show a distinction between decisions in arrest of judgment and in err or . I n t h e case of the King v. Mason (2d Term Reports), which was tried in the King's Bench, there were 6 counts and 2 were clearly bad, yet it was ruled that the judgment was good. That case had been taken to rule that the coun t s i n an indictment for obtaining money upon false pre tences must be so framed as to set forth the pretences. The punishment was discretionary---imprisonment or transportation—and it was argued in that case, A 3 in the one now before their Lord ships, that the higher punishment might have been awarded upon the bad counts. The judg ment, however, was affirmed. The Noble Lord then quoted the case of Kin? v. Young in support of the same view. It was objected, that in tke latter case the objection was not raised as to what counts were bad ; but that argument had no weight, for it would have been the duty of the Court to point out, if it had been overlooked by counsel, that such or such a count was too general and was bad. The Noble and Learned Lord then referred to the case of the King :v. Powell in 2d Barnewall and Adolphus, to show that the court considered the words crime and misdemeanor as a nomen collectivum. It was to be borne in mind, as one of the learned judges, Mr. Jus tice Maule, most accutely observed, that the sentence and conviction only proceeded so far as the evidence at the trial and verdict pointed out the species of punishment. In meting out the quantity, the court looked beyond the verdict and the evidence—. in pronouncing sentence, the court took other matters into consideration, but the sentence ct.uld not come before the court of error for that. The record must be so framed that there must , be a good find ing and a good count; to juistify a sentence of that species and description. The manner in which it was framed was immaterial, the punishment being such as the law warranted for an offence so laid and a conviction so had. When called on to pronounce his judgment in this case he felt himself in this predi cament with his Noble and Learned Friend—that the nine learned judges, as well those who on technical points differed, or rather, had their doubts, as well those who were dissentient as those who concurred, had declared with one voice, that upon the merits they had no doubt at all, that upon the great merits and substance of the case they had no doubts at all, that a great offence had been committed, an offence known to the law, that a grave offence and crime had been per petrated, and that a punishment warranted by the law had been inflicted, all the judges concurred. That there were counts in the indictment charging cri minal offences were to be found against which no pos sible exception, either technical or substantial, could be urged ; that these counts, even if they stood alone, would be quite sufficient to support the sentence, and that the sentence was one which the law warranted justifiablel and he might even say commanded, there was no doubt. Upon those great features —the leading and essential substance of the case, —all the learned judges had a clear, una nimous, and unhesitating opinion. To all the points which had been urged, both those which were essential, and those which were of a technical nature, and urged with a degree of elaborate learning and ingenuity which he had never heard equalled either while he practised as an advocate, while he sat as a spectator, or while he presided as a judge, the learned judges had given the greatest attention. The learned judges took time to consider for weeks upon the results of those elaborate arguments, they con ferred together again and again ; each heard all that his fellow judge had to urge, each had the benefit of all that his brethren had to suggest, and the result of the whole was that seven out of the nine pronounced an opinion that there was nothing in the objections taken, and that notwithstanding the technical infor mality of some counts, the judgment must stand. Two of the judges gave a contrary opinion, one at least, a contrary opinion, and the other would not concur in consequences of the doubts which weighed and pressed upon his mind. They were now called on to elect be tween both, and the question was whether they should take their information on the law as flaid down by those who were daily and hourly administering—it from seven or from two. It was the usual course when they consulted others on whom they placed great and just reliance, those in whom they confided for their integrity or impar tiality, who were without that bias which those who consulted them might feel that they were not free from, and when they found discrepancies to exist, to weigh a little the grounds which they gave, but above all it was the common course of rational and sensible men, so consulting, to see were the great majority was one way or the other, and when the great majority was one way, and the small minority the other, that created naturally a leaning towards that course, and towards that couf:cel which was supported by the ma jority; but how incomparably was that increased when the seven had a clear and distinct opinion, and the two only doubted ; wh en th e seven did no t hesi tate or pause, when they had no sort of dubity or hesitation, and were unanimous one way ? it was the more natural thing for a person to take the opi nion of a majority who had no doubt, than the hesi tating and doubting opinion of the small minority. That was a case in which he, unlearned compara tively with those learned persons, should hesitate to set up his opinion and judgment against theirs, par ticularly when such an o pi n i on was fortified by the large and long-continued experience which they pos sessed. All those learned persons agreed that this was the very first time this objection was taken, and that all lawyers, all judges and courts, heretofore overlooked it, or rather acted on the supposition that it was untenable, and that was a very great assistance to him in forming his judg ment. He called for authority the other way, but he called in vain, for while the learned judges who were for the practice of the law, as it stood, pro duced cases, the dicta of judges, the authority and opinion of the profession on the other side, against that law, and in favour of the law that they were now required to set up, pulling down the former law—not one dictum of a judge —not one sentence of a text writer—not one shadow of a case had been pro duced. That being the case he felt more free in dealing with a c.l=e so repugnant to him, and that he was taking the safsr and the surer course in steering by those authorities and decisions, and to tak as his guides and his helpmates the opinions of those learned judges whose opinions they had asked for. He now came to the important question in which he so materially differed with his noble and Learned Friend, the Lord Chief Justice of the Court of Queen's Bench —he meant the challenge of the array. Upon this question the learned judges were unanimous. He felt strongly the importance of this subject, because it went to the jurisdiction of 'the court on the matter. The court was con stituted of the judge and twelve men; those twelve men had jurisdiction by being selected in a particular manner. Well, then, the question was, whether they had been selected in a lawful manner. For the purpose of deciding this he must consider how they had been selected. The challenge to the array was always, it had been argued, understood to be on account of the indifference of the sheriff or the returning officer. Now there had been no authority cited to show that there could be any ground for the challenge to the array. If such a course was to be adopted, a year might go by without their having either a special or petty jury, and his opinion therefore , was that upon this point decidedly that there ought to be no venire de novo. He would say little or nothing on the point that had been raised as to the hardship on the tra versers in suffering imprisonment pending the writ of error; the fact was, that the law was so, but whether it was to continue so was another question. He had now performed his duty to the best of his abilities in this important case, and he had, therefore, only fur ther to state, that feeling himself bound to look to the authorities of the judges, upon those authorities he must give his judgment as to the plaintiffs in error. Lord DErszaax then proceeded to deliver his opi nion. He would first advert to the judgment given in the court below allowing the demurrer to the challenge of the array. If such practices as had taken place in the present instance in Ireland should continue, the trial by jury would become a mockery, a delusion, and a snare. To the traversers' challenge of the array, on account of sixty jurors being omitted, the Attorney-General for Ireland had des murred, and by so doing had admitted that such 3 fact had taken place. One of the learned judges was of opinion that the challenge should have been alloWed, and with that opinion he entirely concurred. He felt bound to disagree, therefore, with the opinion given by the Learned Chief Justice of the Common Pleas. He thought the principles he had laid down in his judge ment were erroneous. The question was whether the party had had a lawful jury to try him, and on that point he regretted, but at the same time he felt bound to differ from his learned brethren. He had no doubt that their Lordships were aware that when the judges were consulted, it was competent for any judge, who was a member of that House, to attend that consultation, but he had been so struck with the proceedings that had taken place in Dublin that he had written to Mr. Justice Coleridge, who had been prevented from illness from attending their Lordships, or even leaving his room. Now there were many circumstances in the present case, to which d rt He would, how- it was necessary to ve • ever, first call their Lordships' atten tion to the letter he had received from Mr. Justi ce Coleridge. He said, speak ing of the question of the _ I answer this question with challenge of the array , muck doubt, being unable to look to the authorities on the subject. All questions touching the formatiou • of juries, must be examined by the judges with cri tical care. It must be admitted that the Recorder sent no general list to the sheriff, but that some spuri ous list had been made out by some person. " That this has been done fraudulently, and with in ' tent to prejudice him on his trial ; that from that spurious list the jurors' book and special jury list had been made, and the present array selected, and that the traverser himself was wholly unparticipant in this fraud, and protested against the array being constituted from the list so framed." Here, be said, is a confessed and serious wrong, and the only ques tion is, whether a challenge to the array be the proper remedy. It is said, first, that the sheriff is not in default, and secondly, that if the challenge be allowed, there is no book from which any other jury can be selected. With great deference, I submit that neither of these is an answer, He then put a particular case, in which the sheriff might hare made an imperfect array, and there might be no default, And yet the challenge must prevail. He then said, in answer to the second objection, that the only consequence was that the trial might remain untaken, and he ex pressed in strong language his own opinion that it were far better that no trial should be taken under those circumstances, than that it should be taken subject to the heavy suspieion which these facts must bring upon it. Now, on Monday, when the Lord Chief Justice stated to the House the entire agreement of all the judges upon this point, he did not feel himselfjustified in alluding to that letter, because he had concluded that the Lord Chief Justice had had some subsequent communication with his brother Coleridge, in consequence of which he might pos sibly have seen ground for altering his opinion. But when he left their Lordships' House, he found on his table another letter from his brother Cole ridge, written the day before.. He had before said, that he thought the argument in favour of the over ruling of the demurrer was too technical for the decision of a great constitutional question ; and stating, upon the view which he took of the balance of inconveniences, in his note of Monday, he was much struck by what he (Lord Denman) had written on the question of challenge, and at present, like himself, awaited the better arguments that were to be adduced on the other side. He did not, therefore, stand alone in thinking that the j u ry s h ou ld no t be selected out of any list, and that there should be a remedy for any injury' which might be done. He would briefly state what opinion appeared to prevail in the court below on this subject. There was originally, perhaps, some notion that that the challenge to the array was taken away altogether; but that was clearly not the case, because there was a particular provision which preserved the right. It was also questioned whether a challenge laid to the array where a special jury had been struck out. That difficulty having been got over in the Queen's Bench in England, he did not think that there could be any diffi culty in settling it in the same manner. His Noble and Learned Friend said that the prin ciple of challenge to the array rested solely on unindifferency in this conduct on the part of the sheriff. The judgment which he had formed on that point was like that of his brother Coleridge, who, in the letter which he had written to him, stated what he considered to be the state of the law at present. The substantial duties of the sheriff in former times were to .collect the names of those who were fit to he on the jury, and enter them in a panel, and these duties belonged to the sheriff alone ' • but, by the late Act of Parliament, those duties were divided between the tax collectors in the first place, the Recorder of Dublin in the second place, and the sheriff in the third place. The tax collectors performed a duty merely ministe rial; the Recorder, in the first instance, performed a duty which was judicial—decided upon claims and objections. It was then his duty to sign and settle the list which was to be the jury list for the year. The complaint in this case was, that after the Re corder had exercised his functions • after he had dete rm i ne d w h a t s h ou ld b e the fist for the ensuing year, somebody else said " It s h a ll no t be the list." The handing over of a perfect list to the Recorder by the sheriff was a ministerial act, and that act had been incorrectly performed. The chal lengers said, " the judicial act has been improperly performed, but you have deprived your own judicial act of the weight and authority to which it is entitled." He could not help believing that, if that view of the case, which his brother Coleridge had stated much more clearly than he had done, had been presented to the learned judges at their consultation, they would have thought it worthy , at least of consideration. His Noble and Learned Friend had truly stated that that objection was to the conduct of the returning-officer. Who was the re turning-officer? Why the Recorder was the return ing-officer for the purpose of this trial, and in his opinion the Recorder—though without the slightest imputation on his motives, which was disclaimed by all—had been guilty of a default, when he had handed over to the sheriff, as a list of the jurors, that book which was not the list which the law required, and which the Recorder himself had declared should not _ be the list. He had written a great deal more than he was desirous of troubling their Lordships by reading. Not only did he differ from his Learned Brother the Chief Justice of the Common Pleas, as to the principle on which the challenge to the array was to be allowed, but also as to the consequences which were likely to ensue. The Lord Chief Justice said no object or advan tage could here be gained if the challenge had been allowed, for if the challenge had been allowed the jury process would have been directed to some other officer. Now, there, he ventured to think, there was a mistake. The default was not that of the sheriff, but of the Recorder, or clerk of the peace, who made out an incorrect list. The Act of Parliament expressly provided for the want of the jurors book being returned. His Noble and Learned Friend said " Here is a book returned." But what book ? The Act required that that book sh - ould be returned which was correctly made up from , the list ; but:this book was, incorrectly made up. It was asked whether a single defect would vitiate the whole list. The Lord Chief Justice of the Com.mon Pleas said that, according to the argument used, if the cess collectors omitted a single name, the list would be altogether vitiated. He begged to differ on that point from the learned judge. All that had been done previous to the decision of the Court of Sessions would not be affected. This reductio ad absurdam was met at the bar by an opposite case of much greater extent. It was asked what would be the effect of omitting 60 or 600 names ? He thought the inconvenience would be very great if the party were not tried out of the book ; but it should be remembered, that the decision in the case of the " Queen v. O'Connell" was not a decision in any other case. The Lord Chief Justice said there 'lust be some mode of relief from the inconvenience occasioned by such an omission. So said all the learned judges—so said his Learned Friend on the Woolsack, and also his learned friend who had just addressed their Lordships. His Noble and Learned Friend on the Woolsack had raised his expectation indeed in one part of his argument. His Noble and Learned Friend said, "is the party without remedy ? No, he is not." He (Lord Denman) had waited to hear what that remedy was. Where was that redress ? What was there to prevent any one of the Queen's subjects accused from being tried by such a jury as the law never approved of ? " Oh,' , said his Noble and Learned Friend, "excuse me ; I will tell you what the remedy is on a future occasion." Now, if the Learned Lord Chief Justice of England and the judges of Ireland could not point out any remedy, what secu rity was there to the Queen's subjects ? He would go a step further, and he would say that he would never believe that there was no remedy, until the well known constitutional principle of challenging the array—unless that ancient practice were repealed by a direct Act of Parliament, he would not believe that there did not still exist a remedy in such cases as these. The objection having been well taken, it ought to have been allowed ; and not having been allowed, the trial had erroneously proceeded. In the 20th of Edward 111., it was argued that a case was vitiated by the p prived of his right of challenge, on being de onaccou_ i n; of the omission of individuals from the list, an d it. was replied that there were good nam es s enoughte court re turned by the sheriff ; but it was he ld by h that the document was one and indivisib l e, and the consequence of that would be that one error would vitiate the whole, and the whole was accordingly Set aside. What made this case the more remarkable was, that a charge of indifference was brought against the sheriff, and he w as tried and acquitted on that charge, but it was held that he was to blame for the difficulty that had arisen. He (Lord D enm an) could not leave this subject with out adverting again to the want of remedy. It had been thrown out by some learned persons that a pplication to the court should have been m a d e. Were the Queen's subjects to apply to the discretion of the court in order to have a lawful jury to try them for their lives, for their liberties, or for their most important interests ? Was it a thing for a motion, on affidavits and written depositions, when the party accused was always the party swearing last, and after all the matter was referred to the discretion of the court ? But on this case such a motion was made and was refused, but on what ground it was refused he did not know. He knew nothing further of the pro ceedings than what he had seen in the papers. He under stoed that the whole jury list of Dublin consisted of 717 names. Now, the special jury list of course would be a very inconsiderable portion of this num ber. Sixty names out of this proportion was enough to affect of course the panel. It was not improbable that if those sixty names had been on the panel, that the jury might have been drawn from that number. He would now proceed to the other points of the case. He did not entirely agree with the learned judges in thinking that there were only two objectionable counts. He was by no means clear that there was anything illegal involved in the expression of opinion against courts of law for the purpose of having other counts submitted that would be more satisfactory; but however it was quite enough for his argument espe cially as all the learned judges had given an unani mous opinion that they were bad counts—that two counts in the indictment were bad. The question was, whether the judgment that had been pronounced, and the sentence which had been passed, could be good ' under the circumstances I' The question was A and B are counts, C wa s a b a d count, and good court pronounced -sentence ' upon the defendants in respect to A, B, and C. Here were three counts, on all of which evidence had bees taken, and a verdict was taken upon each of these three counts. A conviction was obtained, and the court proceeded to pass sentence, and the punishment was awarded according to the discretion of the judge. Now it was possible that the court had taken into account the bad counts as well as the good ones. They had been told that they must assume that judg ment had been pronounced on the good counts only. Now in the first place, he had a serious objection to that. The presumption was in direct contradiction to a notorious fact. If they were to assume this, future students at law in Dublin would, on a reference to the reports of the Queen's Bench in Ireland, find that the fact was contrary to that which their Lordships had assumed. The law judges had stated that two of the counts were bad, while the Court of Queen's Bench had declared that they were perfectly good and un exceptionable. This put the question entirely out of court. He had felt with his learned brethren great surpriie when he heard the ingenious argument which had been addressed to the court on this subject, and he confessed that he never felt any doubt on the sub ject until that argument was submitted to his mind. Now, the question was, whether in point of fact there was legal ground for doubt to be entertained. It was not the first time that a court of justice had taken that view. He remembered at the time that his Noble and Learned Friend, now on the Woolsack, presided over the Court of Exchequer, a case was brought before that court, in which it was proposed to overrule not the mere dicta of judges, not merely an opinion which had been received with favour in Westminster-hall, but a series of decided cases run ning through a period of fifty years. His Noble and Learned Friend, now on the Woolsack, had examined those cues, and in giving judgment had stated that inasmuch as the decisions in those cases were clearly founded in error, they were not binding. That was the case of Hutton r. Vann, which had afterwards come before there Lordships' House, and their Lordships were of opinion that they were bound by the authorities, but that had not pre vented his Noble and Learned Friend who presided over the Exchequer from entering into the con. sideration of those cases, and of deciding that they were not good in law, as they all originated in a mistake which had crept in in the time of Lord Mansfield. He had heard his Noble and Learned Friend, with that admiration with which he had al ways heard him, lay down the rule on this subject. But their Lordships were not to be satisfied merely with the opinions of the judges, they had a duty of their own to perform. They must satisfy their own consciences. The opinions of the judges were merely the materials for making up their minds, and they must be satisfied before their minds were made up. What had haPpened in that House not twelve months ago ?: There was an universal opinion of the bar founded on three distinct judgments of. different judges of former times, as to the law of marriage. Lord Mansfield, Lord Kenyon, and Lord Ellen borough had all taken the same view as to the nature of the marriage contract, and Lord Stowell, who had had half e century of experience, and who had de voted the greater part of his time to the considera tion of this subject, agreed with them in opinion. Their Lordships had entered on the consideration of the case, and had requested the attendance and opinion of the judges. The judges had given their opinion, which was contrary to the opinion of their predecessors ; but their Lordships, convinced by th e arguments which had been laid before them, differed, toto ceelo, from the opinion of the judges, and felt bound to say, according to their own convictions, that the judges had not taken a correct view. On that question their Lordships were equally divided, and the consequence was that the judgment of the court below was affirmed contrary to the opinion given by the learned judges. He admitted that when he had first heard the argument on that point at the bar, he had heard it with surprise, but his surprise had afterwards changed its object, and he was surprised, not so much that the objection should have been taken, as that such a rule should ever have been considered law. He was convinced that it never had been law, and the slightest attention would show that such was the case. It had arisen from a dictum of Lord Mansfield's, not in a case relating to the criminal law, but in a case relating to the civil law, when he was not called upon to inquire into the state of the criminal law on the subject, and when he went out of his way to make a grievance against the law, as he thought, he found it by making an antithesis between the civil and criminal law. He said that in a civil action in which there were several counts in the declaration, and in which a jury gave general damages, such a verdict would be laid aside if one of the counts of the declaration were bad, and he commented upon the inconvenience of such a rule. He regretted that it had not occurred to Lord Mansfield that' there was a plain remedy for this inconvenience, and that he had nothing to do while sitting at Ni s i P r i us , b ut to tell the jury t:!, assess the damages upon each count, and then the verdict could be set aside upon those counts Whi c h were bad, while it would s t an d upon those which were good. Why it should b e necessary to say that the rule was different in criminal cases he (Lord Denman) was at a loss to know. No doubt since that time the opinion had been universal in Westmin ster Hall. The Bar had all expressed the same opi. nion, and why? Because they had taken the law for granted. And here he would say that they looked at the law in columns, as it were, to consider on what it rested. They would find that a certain portion of it rested upon Acts of Parliament, a certain other portion upon decisions,' a certain other portien upon dicta, and a considerable portion of it would be found to be taken for granted. There was a rest deal which was taken for granted as law which, when examined, turned out to be no law at all, being founded on no reason, and resting on no deci sion—and such, he thought, was the case in the pre sent instance. He thought that his Learned Brethren, on Monday, must have forgetter certain facts con. nected with the administration of the criminal law. They had stated that in an indictment for felony, consisting of several c oun t s , it was usual to take a general verdict, and if there wak one good count that was sufficient. He denied that that was the universal practice. Whenever he tried criminal cases in which there were several counts, he always put it to the jury in this manner— "Do you think there is anything on such a point ? if not, you will acquit him on that point." For in stance, in case of an indictment for attempt to murder, to maim, and disable, to do some grievous bodily harm, he would say, with regard to the attempt to murder, "If you consider he did not intend to murder, you will strike that out at once. It is clear that he never intended to disable, therefore you will acquit him on that point. There is no evidence to support the intention to maim ; and with regard to the count alleging. s ome grievous bodily harm, you wi ll consider it. Now, in that case a jury would most probably bring in a verdict of not guilty on the three first counts, and convict on the la s t alone. That was the proper course for a judge to pursue, and one which wou ld remove all difficulty. It was said that the adoption of such a course would 'give rise to the in convenience of the judges being called on to form an opinion upon the goodness of the counts before th e delivery of a verdict. No inconvenience could arise; on the contrary, he thought great good would be pro duced from their adoption of the practice. In his opinion there could not be a greater gri evance and oppression than these endless, unintelligible, unwieldly, voluminous indictments. An indictment ex t en ding over fifty-seven pages was i tself a grievance ; many prisoners could not afford to pay the clerk o f and, when th ey got the peace for a copy, it, the most learned persons could n ot _ find o ut w i t h what the bipgriuosouncrs thatwere charged g . bt be s The words were o am that the pleader who drew it up might mean one thing , the jury another, the judge a third , and error a fourth, if they did not overthrow the whole judgment. There was also a mistake as to the prac tice of the Court of Queen's Bench in this country. It was said that when an arrest of judgment was moved on one count, the court was i n the habit of refusing if there was an other count which would support the verdict. Had that been so in the case of Feargus O'Connor ? He had been convicted on two counts. The Court had heard the argument on one count in arrest of judgment, and had granted it, and then had proceeded which was so full to hear arguments on another count , - expressions, that the of verboaity and ambiguous At torney-General discovering the great doubt which court entertained, had never pressed for judgment. No inconvenience could arise from adopting the cor. which he had rect practice. In a case ofconspiracy tried at Guildhall, objection had been made to a count. He said it was immaterial, as he was not going to pass judgment then, but had he been going to do so, he should have considered the goodness of the count, also where there were several counts on each, saying, w e apportion such and su ch a p unishment to such a coun t, and such and such a punishment to others:* And thus it would be reserved for the after-considers. tion of the ceurt how far the objections affected that judgment. Such was the practice of the Court of Queen's Bench, and the proper mode, as it seemed to him, of proceeding. But his Noble and Learned Friends said that the objections were merely technics), and that no injustice could arise from the course that 10414