The Sun.
London, England, 1844-07-10 00:00:00

THE SUN, LONDON, WEDNESDAY EVENING, JULY 10, 1844.

ennobled, protected, and rewarded, by titles, and
honours;- nr 1 employments; not ,cale of, which was
stiitered:te. be;diYerred,l;')FP OWn person.
lin 'A, laWrr of career he has Seen .aliother
iSaternl cOnnexion,, withno such p re‘klatit; claims of
riink or ascertainedf!clition. As lAs .I.,:ofif Mother,
selV!v4tV4 e, t,',e highest dignity with which the hand of
the Sove:eign can invest, in this country, a female brow
—a tribute, probably, of affectionate resneFA for the
station apil cliarr,cria_r o Tis litnistrious father. But
a Bing that, on the one hand, a disability purely
technical, under a statute which ought never
-to have become law,—which VMS t"intt.d., in its
origin!
,13,r rnelial pique and resentment in the
Monarch at whose solicitation it was finally carried,—
has defeated his claim, in its recent shape ;—and that
on the Other his own unsullied eharsettti his Virtues,
his talents, end (skl 11111 A repeat) the excellent bear-
ing he has shown through nit the long, but unobtru-
sive agitation of his rights, are calculated to impart a
lustre toany dignities or honours to which the generous
munificence of the Crown might be pleased to call him,
in repairing a mere accidental deficiency of the proof
necessary to the legal substantiation of his hereditary
pr: euslons ;—we do earnestly hope that the grace and
favour of the QUEEN may yet be manifested to Sir
AUGUSTUS D'EsTe in a manner and to an extent
which may fully and royally repair the present failure
of his equitable claim. Certain we are that such an
exercise of the royal prerogative would be hailed
with signal gratification and sympathy by the prixate
friends of the late claimant; and with unanimous
approbation by the public.

Madrid papers of the 2d inst. have been received.
A general belief prevailed that a war with Morocco
I,vas inevitable, as the Spanish Consuls had been
Irdered to withdraw from the Morocco territory, if
they did not obtain satisfaction within fifteen days,
and it was not likely the EMPEROR would yield to a
power so helpless as Spain. ~It is extremely probable,
however, that the affair will be settled by the inter-
vention of other Powers. The four Ministers who
had been summoned to Barcelona on important busi-
ness left that place on the sth for Madrid. General
YARVAEZ remained with the QUEEN.

On the 2d the Three per Cents. were quoted at
:Mil, for cash, and 2.G1 at GO days. The Fives at 20i
at 52 days.

The French Government on Monday received dis-
patches from Marshal BUGEAUD, dated Ouchda, June
19, giving details of his proceedings at that place, and
I is return into the French territory. They add little,
however, to the news conveyed by the telegraphic
,lispitch. It appears he wrote a letter to the Moorish
chief, EL GUENNAONI, previous to passing the fron-
tier. An evasive answer was returned, and after
another vain attempt at obtaining some more satisfac-
tory explanation, he proceeded to Ouchda, which he
reached on the 18th of June. Upon this the Moorish
chief and ABD-EL-KADER retired with all their forces,
the former to the interior, and the latter to make a
razzia in a district to the south-east of Mascara. The
Marshal had announced to the authorities of Morocco
that he did not mean to keep Ouchda, nor declare
war, and promised to treat with them when they had
made amends for the unjustifiable attack upon the
French troops. We are glad to find from these dis-
patches that the Marshal did not anticipate
a war between the two countries. Accounts
from Tangiers state that the French steamer Pluton
arrived at that place on the 23d of June with dis-
patches for the French Consul, and on the same day
left for. Oran, where she was to join the squadron of
the Prince DE JOINVILLE. At the moment of her
departure from Tangiers the Consul-General of Eng-
land at that place was preparing to set out for La-
rache, Mogador, and Morocco. It was generally
supposed that the journey of this-agent related to the
affair between Spain and Morocco, and that, at the
same time, he proposed to recommend MULEY.ABDER..
RHAMAN to employ all his authority to put an end to
the armed incursions of his subjects on the other side
of the French frontier.

The discussion on the affairs of Morocco, which
was to have taken place in the Chamber of Peers on
Monday had been postponed till Wednesday. The
proceedings in the Chambers on Monday were desti-
tute of interest. M. CHARLES LAFFITTE had been
returned a fifth time for Louviers by a great majo-
rity, his opponent, M. DE FONTENAT, having only
6 votes, while he had 331. As he had withdrawn his
offer for a branch line to Louviers, it was understood
that he would be allowed to retain his seat.

THE BOURSE-MONDAY, JULY 8.

First Highest Lowest Lasl

Price. Price. Price. Price.
French Five per C3nta 122 15 122 20 .. 122 10 .. 122 15
Three per Cents.. ••• 81 85 .. 81 85 .. 81 70 .. 81 70
Rank of France
Laftitte Bank, I,ooof. Sharesll2o ..1120 ..1120 .. 1120
4,000 f. SharessoBo —5OBO .. 5080 ..5080
Belgian Bank. 6BO .. 682 50 .. 680 .. 682 50
Reigian Fives,lß3l.
1840
1842 .• • • ...• 1081 • • 1081 .• 1081 .. 1081
Spanish Threes, ex div..• •.. 331 .. •• 331 •• 331
Passive .... •• • • ...• 51 • . 51 • . 51 •. 51
New Deferred l3 .. 13 -. 13 .. 13
Old Deferred •• • • 51 • . 51 .. 41 ..
Neapolitan ••••• . • • • .... • • 99 99 10 • • 99 .. 99 10
Roman

THE STT II LS.
(sTkTri DAy.)

IT F

HOUSE OF LORDS.-(THIS DAY.)

THE QUEEN AGAINST O'CONNELL AND OTHERS.
Mr. KELLY resume!li his, reply about a quarter
past tien: 1.411_.e Pti am d
e ouusel commeticesi by saying
he felt that their Lordships' decision, in reference to
the point upon which he addressed them last night,
might be grounded—first, upon authority—secondlly,
upon,,practica—and .lastl,r, if nelth4 iitiiVorh nor prac-
tice 47ere d'Ceisive of the question, upon legal principles.
It seemed right, therefore, in order to prevent all possi-
bility of misapprehension, that he should shortly refer
their Lordships to those authorities whicict alone had any
bearing on the quePtion aild reefred td these cases
merely to show that in what the judges had stated
it was quite impossible that they could have
referred to a writ of error in which there
had been a conviction upon seteral offences,
but that they must have referred to the well-known
practice upon motions in arrest of judgment. The first
case to which he should refer their Lordships was that
of " Peat and Oldham," in Ist Cooper's Reports, p. 270.
In that case Lord Mansfield, after lamenting that a mere

slip of counsel, who were not always sufficiently careful
as to the count on which judgment should be taken,
should be fatal, contrary to the truth and justice of the
case, went on to say, " However, in civil cases, the rule
most certainly is settled, that where a verdict is taken
generally, if any one count is bad it vitiates the whole.
It has always struck me that the rule would have been
much more proper to have said, that if there is any
one count to support the verdict it shall stand good,
notwithstanding all the rest are bad.' In criminal cases
the rule is so." What was the meaning of saying in
criminal cases the rule is so ? Why, that where there
was a verdict upon an indictment or information with
several counts, a general verdict ofguilty would follow, and
the court was called upon to pass sentence. If one count
were good it supported the verdict, and entitled the
court to give judgment. But what did this mean ?
Did it mean that upon motions in arrest of judgment
the court were called upon to give judgment on the good
count alone, or on all the counts, bad as well as good ?
Their Lordships would find that in some other cases to
which he had referred, the very reason and principle of
the rule was, that where the court had the whole record
before them, standing in the position of a jury if they
found any one offence well laid in any
one count of the indictment, they would do per-
fect justice by inflicting punishment for that offence.
Having power to do so, it was their duty to do so, and
the judgment which they gave was given only on the
one good count. This was the only meaning which could
be given to the expression of Lord Mansfield. The
moment they supposed the case of its application to a
writ of error, where three counts showing three distinct
offences were before the court, although two of those
counts were bad, judgment was entered on the bad count
as well as the good, the whole reason and foundation of
the observation fell to the ground. So far from doing
justice they would then be doing injustice, for they
would be awarding punishment not only for the offence
of which the party had legally been convicted, but for
the other offences of which he had not been legally con-
victed. Throughout the whole of the language of Lord
Mansfield there was no reference to a writ of error. In
civil cases the rule was, where the judgment was taken
generally; in criminal cases, if there were one good count
judgment was passed and punishment inflicted for the
offence stated in that count. Another case to which he
begged to refer was that of " Grant and Hassell." It was
there laid down that if there were one good count, and
the other counts were bad, the judgment should be taken
for the fictitious reason that the jury had assessed the
damages on the good count. There was another case
bearing on this point, the "King v. Ingram," which was
decisive of the question.
Lord BROUGHAM thought that a Court of Error
would " intend" that a fine must have been applied on
the count of the indictment that was a good one.
Mr. KELLY said the whole great question with which
they had now been occupied for a considerable part of
the six days the hearing had occupied was this very
point—was there any authority for such an intendment,
and did the practice exist that would support it ? The
moment they assumed that where one of several offences
was well laid, and the court decided in a motion for
arrest ofjudgment on that one, but nevertheless entered
up that judgment not on one but on all, the moment
that was the fact, they gave a foundation for an intend-
ment, which if made without foundation was an intend-
ment false, in fact, injurious in its consequences, and en-
tirely without foundation either in principle or practice.
He should comprise all he had to say on this point, as to
the practice, in a very few observations, for the point
was simple and clear, and beyond all doubt. He should
show that what the Noble and Learned Lord had thrown
out was not the fact, and if it was assumed to be the
fact they might on that build up a superstructure of
error, which would be productive of incalculable mischief.
Lord BROUGHAM—You put a case of a motion for
arrest ofjudgment; but put a case in which there was no
motion for arrest of judgment.
Lord CAmPBELL—There may have been a motion for
arrest of judgment, and the court ma
_y have held one
count to be good, and have pronounced judgment upon
it. Nothing more may appear on the record.
Mr. KELLY—Clearly not; if the indictment contained
three counts, setting forth separate offences, and the de-
fendant was convicted for all three, and on a motion for
arrest of judgment the court was of opinion that the
whole were well laid, and therefore should pronounce a
triple sentence—if the court. considered each offence
finable with 5001., it would impose one fine of 1,5001., so
that one judgment and one fine would be imposed. Now,
supposing that two of the counts should turn out to be
bad, that two of the offences were illegal, then came the
question whether there was any rule that would com-
pel their Lordships to presume contrary to the prin-
ciples of justice that the court had imposed the
fine of 1,5001. for the one count that was good.
It was impossible that any court possessed of the
smallest particle of understanding could so act and de-
termine. Then let their Lordships see what the next
consequence would be. Their Lordships could only hold
the judgment to be put upon the presumption that the
whole fine was imposed in respect of the good count, and
the defendant would be supposed to have suffered
punishment only for the one count. Supposing that he
was indicted afterwards on the other two counts and
found guilty, he could not plead autrefois convict, but
must suffer the punishment and fine over again.
Lord BROUGHAM—Suppose there are three counts,
one good and two bad, and suppose there is a motion in
arrest of judgment, and the court was in favour of the
party against whom the judgment had been given, and
would let the defendant go free but for the good count,
does the record show the arrest of judgment on the bad
count and the giving of the judgment on the good?
Mr. KELLY—Supposing it was a perfect record, the
judgment ought to appear upon it.
Lord BROUGHAM—It is just possible that the court
might say there is no necessity for entering up judgment
on the bad counts, because there is one good count to
hold.
Lord CAMPBELL—The arrest of judgment on one
count was well known to the law.
Mr. KELLY said that there were two instances which
bore upon the present point. The "King and Hod-
son," sth Term Reports. There the court gave
judgment on the good counts, and judgment
for the defendants on the bad count. Then there was
Mr. Feargus O'Connor's case. In that case the judg-
ment had never been completely entered up, because the
Attorney-General had not called for it ; but there was no
doubt the judgment would have been given on the good
counts, and for the defendant on the bad. In all cases,
whether at assizes, or at courts of quarter sessions, or
the Queen's Bench, whether in trials for felonies or mis
demeanours, the same course was pursued. If there had
been any record made up in any of the courts of West •
minster Hall] that would have suited the case of his
Learned Friends, the counsel for the Crown, they would
have been brought forward in abundance. But the truth
was, there was no such record. In the "King v. Collins,"
the counts were expressly stated upon which the judg-
ment was to be entered up. Now supposing that the
judgment had been entered up on the whole counts,
would it have been supposed that sentence had been
passed upon the whole of them?
Lord BROUGHAM recollected a case, in which he was
counsel ; when he was carping at some of the counts, Mr.
Baron Wood said, " There is no use in that ; for there
is clearly one good count, and that will support the judg-
ment." And the court of error would alwaye presume
that the court had given judgment on the good count.
Lord CAMPBELL—It would be correct to do so at that
stage, because then the court could enter up judgment,
upon which count they chose.
Mr. KELLY—That was precisely the difference.
There was a great difference. There was a great
and terrible mistake in confounding the proceed-
ings when a party was brought up for judgment
with the proceedings in error when judgment had been
pronounced. If he had been convicted but of one offence
it was at the option of the court to give him judgment
in the counts which they supposed good in law. But
here was a case of a court doing that which he should
satisfy their Lordships a court had no right to do—that
was, where it was manifest to the court that but one
offence had been well laid on which the court could pro-
nounce judgment, they entered up judgment not only on
that count, but on another count laying a different
offence, which count was bad in law. Were they right
or wrong in doing this? It could not be disputed, but
that any man who was about to receive a verdict, much
more any man who was about to receive a judgment in
a verdict, had a right to insist upon the counsel for the
Crown selecting one count and abiding by it.
The Crown had no right to obtain a verdict
and enter up judgment upon several counts
when the jury could not return a verdict upon more
than one. Hence arose the practice of defendants in-
sisting upon having a verdict upon one count only, and
calling upon the eounsel for the Crown to elect. He had
taken that course himself frequently, and he was speak•
ing before a Learned Judge who, in a case of conspiracy,
a few weeks ago, when he was counsel for the accused,
and had called upon the prosecution to elect, decided he
bad no right so to call upon there. and the counsel for
the Crown acce led and did so elect. The defendant had
a right to call upon the jury to give a verdict upon
every separate count. They had a right to compel the
jury to give a verdict on those counts only on which they
could find him guilty.
Lord CAMPBELL—In strictness, where there is only
one count, and that alleges several offences, some of
which are not true, the defendant has a right to insist
upon a verdict being entered for him on those parts
which are not true.
Mr. KELLY—Yes, My Lord.
Lord CAMPBELL—I doubt if the law recognises the
distinction of courts. It is one presentment by the
grand jury, but that presentment is severable, and the
jury may acquit of a part.

Mr. REDLY said there: could be. no doubt of it ; for in-
stance; a man Might be igdieted en one cOrit f"r murder;
and on another for, manslaughter he Might be ae-
quitted,of the murder And foitna, guilty,. of the man-
slaughter. „He might,' be inclie:ed for; barelau E.trAd, I.o'l' •
cony, and aeduitted et the blittlarY Vrid funk! of
the larceny. In cases of libel, a man might be found
guilty of composing and publishing, but not of printing.
In all these cases it was perfectly clear that no judgment
o.)uld be given except upon the verdict returned. He
would call tht.lr rttentickn ko 91e gatthof "Fox
v. Austin," to be found in Lawes's Reports, p. sy. It,'W?.?
an information against Austin and others for engrossing
a thousand quarters of corn. The plea was not guilty.
The jury found oni of the defendants guilty for seven
hundred clutheis; ara licit giitqy fOr the residue; and
found the others not guilty for all. I").dvi-
.
case of engrossing, it might be of stealing, in which
jury returned a verdict of guilty as to seven hundred,
but not guilty as td the residue. In most cases it was
not necessary that thOre should be any such verdict, be-
cause the punishment would he the sat& tiff ttealing
corn, whether seven hundred, t*o hundred, or a thort=
sand qliartOrs. Bat it alight be important to the prisoner
to have the verdict so eniOred, because he might
be suspected of having stolen another I,dgd quarz
tern of corn, and therefore he had a right to
insist upon having the verdict and the judgment
entered up predisely according to the fact. It was
there important to the proBectltiati, bedaase under the
old law he was entiled to his writ of reStittitlan,
Either party had a right to have the precise matter
found entered upon the record, and to require that judg•
meat should be prove for that and that only of which he
had been found guilty, and that that, and that only for

which he was suffering punishment,. should appear upon
the record. His Learned Friend the Attorney-General
had asserted, with that confidence with which he always
made such assertions when he had no authorities to
produce, that it appeared that the practice was universal
of entering up judgment upon all such counts. He
(Mr. Kelly) said that there was no such practice. There
was no authority produced for it, and wherever such
practice did exist it was against the law, against the
righti of the Crown, against the rights of the prisoner,
and, he said it with all submission, against the duty of
the court. The judgment ought to be entered up on
that count which was good, and on that count only, and
on the other counts he was entitled to have entered up
either a verdict of acquittal or eat sine die. The only
case in which there was an opponent were cases in
which, in fact, the record was not made up, such as
eases in arrest of judgment, and one other case.
Lord BROUGHAM—You mean when a point is reserved
at the assizes ?

-
Mi. KELLY meant that case. Then, in consequence
of their being no court of appeal, the whole matter was
reserked, and the point argued before the judges, as if it
had just arisen.
Lord BROUGHAM—Sentence is never pronounced there
until afterwards. _ .

Mr. KELLY—The court in that case received the evi-
dence and the verdict, and if they found the party duly
convicted of any one offence on any one count, they
passed judgment for that one offence on that one count
In the case of the " King and Fuller," there was this
sentence-bearine upon the same point, " but in the cir-
cumstances in which the prisoner now stands, there being
a conviction on the first count of the indictment to which
no sound objection has been taken, and on which judg-
ment must be pronouuced against him, it is not necessary
that judgment should be given on the last count." The
whole matter being before the Court, it was for them to
determine whether any one offence was well laid in
any part of the indictment, and then to give
judgment on that part. Now he had gone
through the whole authorities, and there was not
one to be found which would apply in reason or by
analogy to the proceedings of a writ in error. Neither
of his Learned Friends on the other side, nor his
Learned Friends who were on the same side with him,
were able to produce any records to show what the
practice had been after entering up judgment upon mo-
tion in arrest of judgment ; and it arose from this, that
whether in the Court of Queen's Bench, or in the Cen-
tral Criminal Court, or at the assizes, there were not
ten cases out of the ten thousand in which the records
were ever actually made up, and in those few cases in
which they were made up they were made up for a pur-
pose which would throw no light on this subject. With
regard to cases upon writs of error, they were so very
few, that in the whole of the books which they could re-
fer to, he was not aware of a single instance to be found
in those books in which, after motion in arrest of judg-
ment, the records had been completely made up, where
the Court had found one or more of the counts, and one
of the counts only, to be good ; and under those cir-
cumstances, there being no authority actually bearing
on this case, their Lordships must decide it upon prin
ciple. His Learned Friends on the other side next chal-
lenged them to state the mode in which a judgment could
be entered after motion in arrest of judgment of the Crown
in one count, and for the defendants in the other. He(Mr.
Kelly) did not see any difficulty about it, and their
Lordships would find several instances given in Davis's
Pleas of the Crown, p. 393. From those it appeared,
that all judgments in favour of the defendants must be
expressed by those words—eat sine die. Now, after
exhausting the point of authority on this subject, and
after showing the total absence of all precedents, he had
only a few words to add upon the principle. He felt
that it was upon the principle involved in the question
that their Lordships must decide. There was no autho-
rity, there was no settled practice, and therefore the
question must be determined upon principle. He
had urged upon their Lordships, in opening the
case on behalf of his clients, that if this doctrine pre-
vailed, that one good count would sustain judg-
ment before a court of error, the defendant would
suffer punishment for three offences. He was met by a
statement that he had only put hypothetical cases, and
that the cases supposed were of an extreme, improbable,
or even impossible character. If that were the fact, he
was content that their Lordships' judgment should be
against him on that point. He would therefore apply
himself one moment, not to what was matter of hypo-
thesis, but matter of actual experience and fact. In a
case in which a great political conspiracy was alleged, he
had felt bound to state that this doctrine would be fatal
to justice, remembering that in political conspiracies the
object might be lawful, and yet each ten men out of
one hundred might endeavour to obtain that object by
different means ranging from the most venial offence,
such as a common public house drunken meeting up to a
conspiracy to commit high treason and murder. It was
impossible to say that he was now putting an improbable
or merely hypothetical case, because conspiracies, differ-
ing thus in their nature, had actually been formed in this
country within the last few years. His Learned Friends
wrapping themselves up in the vague generalities befitting
such an-argument, said that if a judge were to find a pri-
soner indicted for two or three different offences of a
different character, he would put the prosecutor to his
election. Now he believed there was no power of
that kind vested in the judge in case of
misdemeaneur, unless itwere the power of recommending.
The jury were sworn to try three or more issues, and
try those issues they must, unless both parties consented
to a release.
The LORD CHANCELLOR—Do you mean to say that
the judge is bound to take all the issues together ?
Mr. KELLY submitted that that was so.
The LORD CHANCELLOR said it would be done if it
were necessary to prevent the party from being entangled
in his defence. What power was there in the other case ?
Mr. KELLY said it arose from the practice of 200
years.
The LORD CHANCELLOR said that the objects were to
protect the party charged ; it applied equally to the one
crime as to the other.
Mr. KELLY said the misfortune was, that with all the
anxiety of the judges to do justice, the practice was not
as his Lordship supposed. He must entreat their Lord-
ships' attention for a moment to this point, otherwise a
very grievous misapprehension, from which those he
represented might suffer deeply and irreparably, might
prevail in their minds. He was quite aware that
if two totally distinct misdemeanours were
charged, such for instance as a libel against one
individual, and a conspiracy to murder another, in
one and the same indictment, the judge would recom-
mend, and probaby his recommendation would be adopted,
that either the one or the other should be abandoned ;
but they were not then considering a case of that na.
tore. In a case tried last week before the Lard Chief
Justice of England, there were three totally distinct
offences charged. There was a conspiracy to deprive
the prosecutor of property of immense value by influenc-
ing a foreign Legislature, which,' if entered into at all,
must have been entered into in 1828 ; a conspiracy to
deprive the same individual of the benefit of a valuable
lease, and to place another person in possession of it,
which could not have been formed before the beginning
of the year 1829, nearly two years after the first ; and
then there was a charge of a totally different conspiracy,
by circulating reports injurious to the credit of the pro-
secutor, and bringing his mercantile house in London
into discredit, and tending to impoverish himself. The
offence laid in the first indictment was completed in 1828.
The other came up to the very end of December, 1829,
nearly two years after the first ; and the third could
hardly be fixed as to time, as the evidence relating to it
extended over a period of six or seven years.
The LORD CHANCELLOR—But what took place on the
trial?
Mr. KELLY--Every charge was fully gene into. Two days
were occupied with the hearing, and he himself (Mr.
Kelly) had the painful duty of defending the eminent
parties charged. After he had addressed the jury, the
Lord Chief Justice told the jury there was no evidence
to be left to them in support of the last charge. He then
referred to a correspondence of rather a voluminous
character, and ultimately expressed his opinion to the
jury, that there was no evidence in support of the second
charge, and the case went to the jury on the earlier con-
spiracy. But the counsel in the case had to address the
jury on all the charges of the indictment.
The LORD CHANCELLOR was sorry the case had not
been mentioned when the Lord Chief Justice was pre-
sent, as he (the Lord Chancellor) had a distinct im-
pression that the Lord Chief Justice had told the jury
to direct their attention to one of the charges only, and
that an election was made.
Mr. KELLY said he did not direct the jury to one
charge till the summing up.
The LORD CHANCELLOR—Did the counsel for the de-
fendants at an earlier stage of the trial suggest such an
election?
Mr. KELLY—NO, my Lord ; how could he do so?
The LORD CHANCELLOR said he had a distinct im-
pression of what the Chief Justice had stated as to this
trial. He regretted, therefore, that it had not been
mentioned when the Lord Chief Justice was present.
Mr. KELLY said he had mentioned the case on the
first day he addressed their Lordships, as a proof that
persons might be indicted, tried, and convicted, for three
totally different offences, committed at int. rvals of years.
On that very case, whatever might be his Lordship's
impression derived from what had fallen from the Chief
Justice—
The LoRD CHANCELLOR said the statement had no
reference to this case, as this communication was made

before ii ;,'me on for hearing, and he, being engaged on
9the,r matters, clia pay so much attention to it as he
liafo ttottot . -- that an
t4idatied
Opcfiott tytti,offeredto the parties,:and that gmwhin. of
thesp,copnts were not left tio. the jury;. he Was hoinici tti
say that tlielnipiesSion was,v,p etmeonspn 6: It was only on
summing up, on the close of the sci.end Pitig (162 y a the
that the Lord Chief Justice told the jury that oRe
only must be left to them; because the evidence on the
two greater charges had altogether failed. In that very
eign those individuals, instead of being the high and.
honourable Vai`ties) tIVly sure; might have been really
guilty, and might havd Been Hand goity of all
three of these objections. He theil qUoied the
language of Lord Ellenborough -in a case from the 4d of
Cattipbeit's Reports, in which his Lordship laid it down
Ci 4 a Tiffin idled Ve tfi&l fet several offences under one
indictnieni, if kftd a offlindes Were all of the same sort.
That was the only Men might he chttrird,
and evidence given against them, for.edietal sever
ral assaults, or several frauds. Let them fiat lie to-h 1
then that jndges put defendants to their election as to
the charges. They do not put them to such election
where the offences are oft the site description. He re-
ferred
to a recent trial before Justice Holeoyd, in which
there was an indictment for three libels, published at ill-.

tervals of three thmi four months, against a Dissenting

minister.
Lord BROUGHAM—That was one the first actions in
which the question was raised whether the :filth might
be pleaded in mitigation of damages.
Mr. KELLY—fin was not now putting hypothe-
tical, or merely possible canes P.t all. Where
there was no authority to bind or guide tiiAt llKruse
—where they found the practice silent, and wiigtW
they knew what the practice ought to be, but where
there were neither authority or practice, and when they
came to principles, and applied them to practice—he
would 'ask whether it was arguable that where a person
was convicted of several offences under one indictment,
which rendered it necessary for the court to pass a
heavier. sentence for the number of offences than it
would! for one, and where, upon error, the party stated
that he was suffering for those offences of which he was
not guilty, could their Lordships say that upon principle
and upon reason he should continue to stiftet that
punishment. If such a rule existed, which he contended
there did not, it was against reason and justice, and even
if it had existed for centuries, it would be the duty of

Nvz..._

their Lordships to over-rule it. On these rotting he
submitted that the proposition contended for on
the part of the defendants was good; that if one
count in the indictment was bad the judgment
was vitiated, and must be reversed, and the effect
of that would be, not that the parties pho
were really guilty should go unpunished, because they
must be tried and convicted of any of the offences on
the record of the court—all that they prayed was, that
their Lordship would relieve them from the present
sentence of any offences for which they were suffering
punishment, !Jut of which they had not been found
legally guilty. Ile would advert no more to this point,
but would proceed to the consideration of the two counts
of the indictment to which he had before alluded. He
had submitted that the 6th count was bad. That count
charged the defendants with conspiring to procure, by
assembling large numbers of persons, and by intimida-
tion and the exhibition of physical force, a change in
the laws and constitution of the realm. The real ob-
jection to this count had not been met by the other side.
The objection was not that the name of the parties was
not mentioned, but the objection was, that the count
charged a conspiracy to intimidate, but did not mention
the names of the persons to be intimidated.
Here their Lordships consulted together for a short
time, during which Mr. Kelly did not proceed with his
argument.
The LORD CHANCELLOR—Go on with your argument,
Mr. Kelly. We are attending to what you say, although
we occasionally consult among ourselves upon the points
as they arise.
Mr. KELLY contended that this sixth count was bad,
because it was not stated on what particular class of

lersons it was intended the intimidatio'n should operate.

-
It was a general charge of intimidation, without stating
the party on whom it was intended to operate, and the
result was, that if any species of intimidation could be
created by a legal meeting with a legal intention, the
count was bad. The case had not been fairly argued by
his Learned Friends on the other side. They had said
that that was legal for one which it was illegal for many
to do.—(here their Lordships again engaged in conver-
sation, and Mr. Kelly paused.)
Lord BROLreHAN—Mr. Kelly, go on, go on.
Mr. Kisixy—His Learned Friends had referred to cases
which he admitted in which names had not been men-

tioned in indictments. But although names had been
omitted, classes of persons had always been mentioned.
No doubt in cases of conspiracies to defraud, it might
be impossible to name the parties. For example, if per-
sena were indicted for a conspiracy to rob on the high-
way, the names of the persons to be robbed could not
be mentioned. But there could be no doubt that the
conspiracy would be illegal. In the first place it was
illegal to rob at all ; and in the next place the conspi-
racy would be laid as a conspiracy to rob all the Queen's
subjects who should pass on a certain highway. Again,
in case of a conspiracy to defraud, which had been tried
before Mr. Justice Williams, although no names were
mentioned, the class of persons to be defrauded was dis-
tinguished as all persons who could be induced to give
the defendants credit. That indictment was good, be-
cause it alleged an illegal agreement to affect an illegal
object. It was definite, for it so distinguished the par-
ties as to enable the defendants to prepare their de-
fence. But in the present case there was nothing to
give the slightest information as to what was the
nature of the intimidation, on whom it was to net, or that
it was unlawful, and therefore the count was bad for
generality. For instance, if a count charged a con-
spiracy to use threats and menaces, and there was no-
thing to show whether they were lawful or unlawful, if
in any conceivable case the employment of threats
could be lawful, the count would be bad. Here there
was nothing to enable the parties to meet the charge.
It was not said whether it was intended to intimidate
the Sovereign, the Parliament, or the Queen's subjects
generally. The case of the King v. Hill and others,
2d Barnewall and Alderson, page 204, had been decided
by the Court if Queen's Bench to have gone to the
extreme verge of the law. The defendants had been
found guilty of conspiring by false pretences, to obtain
from D. B. divers large sums of money of
his property, and to cheat and defraud him
of the same. There the party came into court, knowing
whom he was charged to cheat and defraud. The only
complaint was, that the means were not sufficiently set
forth. The answerwas, it is prima facie criminal to cheat
any person. The subtle means and devices must be within
your own knowledge, and might be such as could not be
stated in an indictment. The party knew whom he was
charged with defrauding, and that was sufficient to en-
able him to prepare his defence. That case, however,
went to the extreme verge of the law. He could not
help observing that, in touching upon this part of the
case, the Attorney-General for Ireland could scarcely
utter a sentence, without mentioning some class of per-
sons to be intimidated. Now, if that had been stated
in the indictment, the defendants would have known the
charge against which they had to defend themselves ;
but as it was, if it were possible to imagine a case in
which intimidation might be lawful by means of a law-
ful meeting, the count would be bad for generality.
He would not report the case which he had already
put on that point, but the Counsel for the Crown
had stated, that if it could have been proved at
the trial that such had been the nature of the
intimidation they wauld have been entitled to a verdict
of acquittal, and if such were the case he would under-
take to prove to their Lordships that this count was a
bad one. The charge was to cause and procure a large
assemblage of persons to meet for the unlawful and sedi-
tious purpose of obtaining, by means of intimidation,
changes in the laws and constitution of the realm. Now,
how could any one sentence of that be disproved by evi-
dence which would show that the assemblage was for the
purpose of causing intimidation in aid of the Legislature,
that they might not be prevented from passing an Act
of Parliament. If that count were good, any meeting
was unlawful ; no matter who were to be intimidated, no
matter whether they were wrong-doers. If one species
of intimidation was lawful, and another unlawful,
they must show that the intimidation was unlawful
to make it a criminal charge, and here he
begged again to refer to the case of " the Queen
v. Peck," the principle of which case was, that the
count was bad, because it did not show that
the purpose was necessarily criminal. His Learned
Friends on the other side had referred to the prosecu-
tion of Feargus O'Connor. He begged their Lordships
to look to the count in his case, which was of so doubt-
ful a character that the Court of Queen's Bench had not
pronounced judgment upon it. 'The count, in that case,
was far superior, in point of legal precision, to the count
now under consideration, and yet it was by the court
considered so general, that his Learned Friend the At-
torney-General had not called the party up to receive
judgment. The Learned Gentleman then referred to the
language of Lord Kenyon, in reference to criminal charges
in general, and particularly to the charge of conspiracy
in the case of" the King v. Holland," in sth Term Re-
ports, page 653. The eighth count of the indictment was
that which charged the defendants with conspiring to
bring the tribunals established by law is Ireland, into
hatred and contempt, and to withdraw the adjudication of
differences from those courts„ and to transfer them to
others. He believed their Lordships were of
opinion that this was not necessarily illegal,
and had nothing approaching to illegality in it.
His object might be to bring the judges themselves into
hatred ; but here a mitigated character was given to the
act by its being stated that the intent was to induce the
people to submit their differences to other tribunals. His
Learned Friends had observed that they had put extreme
cases by referring to the time of the Charleses and the
Jameses ; but it was necessary to put such eases when
applying a test to ascertain what was lawful and what
was unlawful, as a means of correcting an abu,e. If the
courts of this country were at one period of such a cha-
racter as to require the most powerful efforts to change
the system, it was important to ascertain the
legality of the means which might be resorted to
for that purpose. With regard to the cases cited
on the other side, he dismissed them all with the single
observation, " that they were all cases in which a spe-
cific violation of the law was charged in the indictment."
No one would dispute that a libel in court was a misde-
meanour, but, as in this case, the means were not stated,
the .object was not necessarily illegal. Ile submitted,
therefore, that this count was bad, and that it would
vitiate the judgment. He had next to observe upon
what was called the triple finding. That point lay in a
very narrow compass. His Learned Friends had not
contended that there were not three distinct findings,
and it was perfectly clear that here was a conviction
for three different conspiracies, and judgment passed
thereon. The findings were all equally good in law, and
which would they choose, and which would they, reject ?
There was no more power in that court to reject one
than to reject the whole. The finding ought to

have been of one offence, only, and in the one count

The principle of law was as applicable to misdemeanours
as to felonies. The argument of the Attorney-General
was, that there was something in a charge of conspiracy
:^ll distinguished it from any other charge with re-
number of defendants who might be found

1,;w4 to
tn., tge,
ee. He was not aware of any dis-
guilty oil
ihiweet ctilvir...7 and other misdemeanours.
i4tiction'
qu'es'tion, bete wens hoe: wi,e,...lear in the same indict-
ment ill hitch there was a saltkieat nee-lxiber,...e?fpc;;ltts),.:
they could find A IS gnifey of one comets
of another--that could be done if there werea eattaselen
number or counts—but the question was whether, under
One count, charging one offence, they wield carve out se
multiplicity of offences? For that there was no authority'
ewe& and it was opposed to the principles of emmoir
sense. In toning to a conclusion on this point he would
again advert to the case of Feargus O'Connor. He had
read what fell from Mr. Baron Rolfe on that trial, but he
had since been referred by one of his Learned Friends
who was present at the trial to the same point which
arose. It would be found in page 180 of the printed re•
port of the trial of the sixty-nine Chartists. The
Attorney-General suggested that in case of a mis-
demeanour it was not at all necessary that all the
defendants should be convicted on every count of
the same indictment. Mr. Baron Rolfe said no, but you
ean riot have an indictment against A, B, and C for one
offeoee, and convict A of one offence, Bof another, and
C of a third, and the case was so left to the
jury at last. In the present case, several issues
were left to the jury on one count. He submitted,
therefore, that the objection appeared here in a clear and
simple fia•ro, One offence was stated in the count ; three
offences were found by the verdict. One judgment was
passed upon all the OffeliCON aforesaid. It came before
their Lteelehips as one indivisible judgment on two more
offences than were ever presented by the grand jury. It
was impossible their Lottiehips could reject one .or an-
other. The jury had divided on all, and, as it wag im-
possible to distinguish them, he submitted that there
was no alternative but to reverse that judgment.
He must now make one or two observations, but
one or two only, on the point of discontinuance.
It was quite unnecessary to trouble their Lordships with a
reference to those authorities which had been gone into
by his Learned Friend Mr. Peacock. Others had been
adterted to by the Attorney-General, but the result of
the Whole of the authorities was this, that a discontinu-
ance, Eiftet a verdict had been given, and where the
parties were Waiting for judgment only, could not be
'osused by appearance. It had been stated, that front
the particular form flf thwe proceedings, there had been
no discontinuance at all. But this went to limit the
operation of the statute in a very extraordinary manner.
The argument was, that the statute extended the term,
and made that extension the same for all purposes as
if that extension had taken place within the tern.
Well, thug, it was said that this was for the purpose or
trial only, and therefore the trial taking place in vacation,
that it was the trial only the court had power to hold in
vacation, and that they had no power to enter into a cen-
tinuance. Why, must not the power that was given to
them be not only for the purpose of the trial itself, but
for the purpose of subpoenaing the witnesses, and giving
force and effect to every trial connected,
with the trial and all its incidents. If the court
was supposed to have no- other power than to'
hold the trial out of vacation, they would have no power
to record the verdicts. The Legislature must have pre-
sumed, in giving this authority, to have known the prac-
tice of the courts, and that these proceedings were in-
tended by it to be adapted to all forms. On those
grounds he submitted that whatever authority the court
had in term, it had out of it, and that what they might have
done in an ordinary case they might have done in the pre-
sent. The discontinuance, therefore, not appearing in the
record, there was manifest error, and the judgment must
be reversed. The manner in which the discontinuance
should have been entered in the record clearly applied
in the case of " Hart and White," in the State Trials,
and in the case of the " King and Robinson," in ed
Burrells. There was another point to which his Learned
Friend had thought it necessary to advert, and which, if
not in the present, in many cases might become a point
of great importance. The point of the judgment of ac-
quittal to which many of the defendants were entitled, as
in many matters contained in this record, there had been
no judgment at all, and such being the case, they could
not plead autrefois acquit to relieve them from it. In his
opinion it was utterly impossible to imagine a record
more utterly defective in most important particulars than
the present. Under such circumstances the defendants were
entitled to take any objection to the record, however techni-
cal. His Learned Friend had stated that it was true that
defendants had no power to enter an acquittal, but that
that House, sitting in error could do so. He (Mr. IC)
apprehended that that House, sitting in error, had no
right to amend a judgment in any criminal case, and oil
that ground he would submit also that the judgment on
that particular point ought to be reversed. There was ano-
ther point to which, although both his Learned Friends
had adverted, he felt it his duty, considering its im-
portance, to make a few observations, and that we"
with respect to the right of challenging the array. The
facts of that appeared in the record. They were that
the recorder ought to have delivered to the clerk of the
peace a list of the juries for the year, that from that lid
a book should have been made, and that from that Weir
the panel ought to have been taken by the sheriff. NI
it was said, on the one side, that he never made out eects,
a list—that if he did, he never delivered it he
the clerk of the peace. It was said that
did deliver it to the clerk of the peace, but 01.
some of the names might have been wrongly place",
Now he conceived that when the allegation appear::
upon the record, in the language of the statute, t
mstaeatuntienTmodf
orth had
ealhettiboenet way,
complied
tphiaietdt
•
rith. if the Crown
substance of the
had taken issue upon that, and it had appeared that a
list substantially within the meaning of the statute; al-
though some of the names might have been misplaced,
and one or two omitted, had been given in, there would
have been a verdict given for the Crown. But if it had
appeared that the Recorder had never delivered a list,
and the panel had been made out en a fabrica-
tion, that would be an abundant ground of chal-
lenge ; or suppa.e the Recorder hid strictly
performed his duty, and had delivered in a list contain-
ing the names of all the jurors, but that there the chain
of regular proceedings had ended, and some third un;
known person had interfered and furnished the shalt'
with a fraudulent list from which the panel had been
struck. No one could doubt but that would furnish
abundant ground of challenge for trial by kirY
would be a mere mockery if jurors could be
selected from a fabricated list. The great ques-
tion was, if challenge of the array was the right
remedy or not, and their Lordships were told, by
reason of a multitude of ancient authorities relating 1°
proceedings before special juries were known, that it tves
only by reason of some charge against the sheriff that 6
challenge to the array coulsl be allowed. He apPre:
hended that that doctrine was founded upon 11,'
incorrect proposition—in point of law. The chsi:
lenge of the array was given to the subjee'
in order that he might secure to himself a fair and I 111;
partial'trial by jury ; and as long as the jury was 11°
selected by statute, but by the sheriff or his officers, 6°
long the subject could be entitled to his challenge of er
ray only in consequence of default on the part of 01
sheriffs. But when the statute created a new state
things, and intended to provide for the subject a greater
safeguard, by providing due laws of a better characteri
and when for that purpose the statute had superadde
to the silt riff other officers to be concerned in the pre:
paration of the jury list, without taking away the chec
lenge of array, it was clear that the subject.
was entitled to the challenge of array on account e
the indifferency of those officers to whom the duty o',
sheriff had been entrusted, as he would have been urea°
the common law, on account of the unindifferency of tb°
sheriff himself. Therefore, in this case, they were as,
much entitled to a challenge of the array, on account 0.1
the default of the Recorder, as they would have been e
account of the default of the sheriff ; and when asked
what must be the award if this challenge to the arra);
were allowed, lie would ansWer,, that if the Recorder he
duly made out the list, the award should be to the IT;
corder to deliver that list, that the jury panel might be
formed from it. If they were of opinion that list,
Recorder had not duly made out the 115 r
then the award should be to the proper office...
to make out the book, and if, in consequee'"
of any difficulty at any stage of the proceeditV
it should appear that no good jury list could se
made out for this year, then the award should be to 11;,
sheriff's to produce the jury list of last year. He silbs
mitted therefore that the challenge to the array Ott
to be allowed, and that on that ground also the jul
went ought to be reversed. Ho would now briefly ti of
vert to the point. of the recognisances. The case ar
Hunt and White showed that in cases of misderneane,
it was competent for the court to order defendants be
enter into recognisances to keep the peace, but it mutt,
for a reasonable time. But in this instance it was use`a,
tain for what time they were bound to keep the Petlse
No time was specified, except from the time of giving ire
recognisances. This was entirely against all practles
and precedent, and it was further ordered that t 4
should be imprisoned until they entered into their
oj
recognisances, so that if they were never able to 'A ts
sureties it was a sentence of perpetual imprisonnle.l3ol.
It was different in cases of fine. Magna Charta ref:ln" e,
that no man should be fined beyond his ability to
nod
therefore, when a man was sentenced to be ireprisol:o,4
until his fine was paid, the law presumed that be
ter-
able to pay and free himself if he chose. But the ex
ing into recognisances with sureties did not.
nee
pend on the parties themselves. Magna Charts dleies•
compel any man's friends to come forward as sure. re..
He contended that the whole judgment ought to bee o
versed, because there was uncertainty as to the tire the
giving and taking the recognisances. It was said oat is
other side, that this would only vitiate the judgeanin
part; but if it was bad in part, he held that it was "Asr of
the whole, because the court of error had no posy-ed.
altering the sentence which the court below pronourlosea
and that the judgment must be reversed on this gr,oold
also. There was only one other point which he 'esses
shortly advert to—that was, the point that the witnern
were sworn before the grand Jury, and not Itiesite
court, which was in contravention of the Act of Viet seaG
and, in his opinion, the still more important point,coest
the foreman had nut ' certified to the sot
that the witnesses were sworn, and had bin'
endorsed the names of the witnesses on the 00
The authorities cited showed only that no error leeciser
was originally assignable in the Court of Ex.,,,elliseds
Chamber as a court of error. His Learned .e object
contended that this error ought to be made the 't he
of a plea in abatement; but he had clearly stated Le so
declined so to make it. The defendants haeillgesla
means of discovering the error till after, the trial, The
not be bound to plead it in a plea in abatene'before
Learned Counsel then referred to a case tried
ego16:1
Mr. Baron Parke, in which there being some Le gra°,
rity in the swearing of the witnesses before tuna tits
jury, a now special commission was issued, ;we 0:
parties were tried over again. They had the l'sseor'''
all the judges that if the witnesses were not du.'