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

THE

ennobled, protected, and rewarded, by titles, and
honours, and employmenti, not one of which was
suffered to be diverted to his own distinguished person.
In a later period of his career he has seen another
paternal connexion, with no such previous claims of
rank or ascertained position as his Noble Mother,
elevated to the highest dignity with which the hand of
the Sovereign can invest, in this country, a female brow
—a tribute, probably, of affectionate respect for the
station and character of his illustrious father. But
seeing that, on the one band, a disability purely.
technical, under a statute which ought never
to have become law,—which was tainted, in its
origin, by personal 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 character, his virtues,
his talents, and (we must repeat) the excellent bear-
ing he has shown through-mt the long, but unobtru-
sive agitation of his rights, are calculated to impart a
lultre to any 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
pretensions ;—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 private
friends of the late claimant; and with unanimous
approbation by the public.

Madrid papers of the 2cl inst. have been received.
A general belief prevailed that a war with Morocco
was inevitable, as the Spanish Consuls had been
ordered to withdraw from the Morocco territory, if
they did not obtain satisfaction within fifteen days,
and it was not likely the EmrEttoß would yield to a
power so helpless as Spain. rlt 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
NARVAEZ remained with the QUEEN.

On the 2d the Three per Cents. were quoted at
26-k for cash, and 261 at 60 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
his return into the French territory. They add little,
however, to the news conveyed by the telegraphic
dispatch. It appears he wrote a letter to the Moorish
chief, EL GUENNAOM, 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 tha 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 bttween 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 MILEY . ABDER•
faLIMAN 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 FONTENAY, 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 Last

Price. Price. Price. Price.
French Fire perCznts— •••• 122 15 .. 122 20 122 10 122 15
Three per Cents... •• 81 85 .. 81 85 .. 81 70 •• 81 70
Cank of France 3020 ..3025 .•3020 ..3025
Lailltte Bank, I,oooi'. Sharesll2o ..1120 ..1120 .-1120
5,000 f. SharessoBo —5OBO —5OBO ..5080
Belgian Bank •••• •• •• •• •• •• 680 •• 682 50 680 .. 682 50
Belgian Fives,lß3l.
1840 .. •• •• •• 105-! .. 105-7 .. 10531 .. 1051

1842........ 103 f .. 108 .. 104 .. 108 i
Spanish Threes, ex div..•• • • 33+ .. 33/ • - 33/ .. 331
Passive .• ..• •••• • •• 5 .. 5,4 • • 5i .. 5+
:New Deferred.• •.• • 13 • • 13 13 • • 13
Old Deferred • ..... 51 51 .. 51 ..
Neapolitan 99 .. 99 10 •• 99 .. 99 10

Rowan

THE STATE TRIALS.

(SIXTH DAY.)

WRIT OF ERROR.

HOUSE OF LORDS.-(THIS DAY.)

THE QUEEN AGAINST O'CONNELL AND OTHERS.

Mr. KELLY resumed his reply at about a quarter
past ten. The Learned Counsel commencer) by saying
he felt that their Lordships' decision, in reference to
the point upon which he addressed them last nieht,
night be grounded—first, upon authority—secondlly,
upon practice—and lastly, if neither authority nor prac-
tice were decisive of the question, upon legal principles.
It seemed right, therefore, in order to prevent all possi-
Tility of misapprehension, that he should shortly reel
their Lordships to those authorities which alone had an 3
,)earing on.the question ; and he referred to 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
'tad been a conviction upon several offences,
but that they must have referred to the well-known
practice upon motions in arrest of judgment. The firs!
case to which he should refer their Lordships was that
of " Peat and Oldham," in Ist Cooper's Reports, p. 270.
fn that case Lord Mansfield, after lamenting that a mere
dip 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 infliatin4 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 s
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
Judgnient was passed and punishment inflicted for the
offence stated in that count. Another case to which he
begged to refer was that of '4 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 art 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 be 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 BriouonAm—lrou put a case of a motion for
arrest of judgment; but put a case in which there was no
motion for arrest of j udgment.
Lord CAlurnELL—There may have been a motion for
arrest of judgment, and the court may 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 1,500/. 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 pat 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 tir 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. Nov 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 BuouanAm 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 always presume
that the court had givetsjudgrnent on the good count.
Lord CAMPBELL—It woulelle 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 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. fretted
taken that course himself frequently, and he was speak.
ing before a Learned Judge who, in a case of conspiracy,
a few wee'cs ago, when he was counsel for the accused,
and had called upon the prosecution to elect, decided he
had no right so to call upon them, and the counsel for
the Crown acceded 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 allege's several offences, some of
which era 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 CA3IPEELL-1. doubt if the law recognises the
distinction of cc,urts. It is one presentment by the
grand jury, but that presentment is severable, and the
jury may acquit of a part'

Mr. KELLY said there could be no doubt of it ; for in-
stance, a man might be indicted on one count for murder,
and on another for manslaughter ; ho might be ac-
quitted of the murder and found guilty of the man-
slaughter. He might be indicted for burglary- and lar-
ceny, and acquitted of the burglary and found guihy 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
could be given except upon the verdict returned. lie
would call their Lordships' attention to the case of "Fox
v. Austin," to be found in Lawes's Ilepurts, p. 59. It was
an information against Austin and others for engrossing
a thousand quarters of corn. The plea was not guilty.
The jury found one of the defendants guilty for seven
tiundred quarters, and not guilty for the residue, and
Found the others not guilty for all. Now here was a
case of engrossing, it might be of stealing, in which the
jury returned a verdict of guilty as to seven hundred,
but not guilty as to the residue. In most cases it was
,iot necessary that there should be any such verdict, be-
:ause the punishment would be the Fame for stealing
corn, whether seven hundred, two handrail, or a then-
:and quarters. But it might be important to the prisoner
:o have the verdict so entered, because he might
suspected of having stolen another 1,030 quar-
ters of corn, and therefore he had a right to
insist upon having the verdict and the judgment
entered up precisely according to the fact. It was
there important to the prosecution, because under the
old law he was entiled to his writ of restitution.
Either party had a right to have the precise matter
Found entered upon the record, and to require that judg
-neat should be prove for that and that only of which he'
had. been found guilty, and that that, and that only for
'Mich he was suffering punishment, should appear upon
the record. His Learned Friend the Attorney-General
had asserted, with that confidence with which ho 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
rights of the Crown, against the rights of the•prisoner,
tad, 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
,:ases in arrest of judgment, and one other case.
Lord BROUGHAM—You mean when a point is reserved
at the assizes ?

Mr. KELLY meant that case. Then, in consequence
of their being no court of appeal, the whole matter was
reserved, and the point argued before the julges, 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 bearing 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 i 5 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 cf 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 assizrs, 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
ort 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 ajudgment could
be entered after motion in arrest of j udgment 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 pm.
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 boand 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 actuallvbeen 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
misdemeanour, unless it were 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 CRANCELLOR—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 necvssary 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 justi,:e, 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 then- minds. He was quite aware that
if two totally distinct misdemeanours were
charged, such for instoce 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 considerinc, a case of that na-
ture. In a case tried last week before the Lord 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 CEIANCELLOR-But what took place on the
trial?

Mr. KELLY—Every charge:was fully gone 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 ho (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 CRANEELLOR—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 intrrvals of years.
Oa that very case, whatever might be his Lordship's
impression derived from what had Idlea from the Chief
Justice—
The LORD CHANCELLOR said the statement had no
reference to this case, as this communication was made

before it came on for hearing, and he, being engaged on
other matters, did not pay so much attention to it as he
might have done.

Mr. KELLY—I,"' his Lordship's impression was that an
election was offered to the parties, and that the whole of
these counts were nit left to the jury, he was bound to
say that the ithpression was an erroneou one. It was only on
summing up, on the close of the second long day of the trial,
that the Lord Chief Justice told..the jury that one charge
only must be left to thorn, becauie the evidence on the
two greater charges hail 'altogether failed. In that very
case those individuals, instead of being the high and
honourable parties they were, might have been really
guilty, and might have been found guilty of all
three of these objections. He then quoted the
language of Lord Ehlenborough in a case from the 2d of
Campbell's Reports, in which his Lordship laid it dawn
that a man might be tried for several offences under one
indictment, if those offences were all of the same sort.
That was the only limitation, Men might be charged,
and evidence given against them, for several libels, seve-
ral assaults, or several frauds. Let them not be told
then that judges put defendants to their election as to
the charges. They do not put them to such election
where the offences are of the are cie,cription. He re-
ferred to a recent trialbeFore Justice Holroyd, in which
there was anindietment for three libels, published at itt-
tervals of three and four months, against a Dissenting
• minister.

Lord BROUGHAM—That was one of the first actions in
which the question was raised whether the truth might
be pleaded in mitigation of damages.
Mr. KELLY—He was not now putting hypothe-
tical, or merely possible cases at all. Where
there was no authority to bind or guide that House
—where they found the practice silent, and where
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 suffer that
punishment. If such a rule existed, which he contended
there did not, it was against reason and justice, and even
it it had existed for centuries, it would be the duty of
their Lordships.. to over-rule it. On these grounds 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 who
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 Lordshito would relieve them from the present
sentence of any ,offences for which they were suffering
punishment, but of which they had not been found
legally guilty. He 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 thin count had not been met by the other side.
The ohiection.was not that the name of the parties was
not menti,,,ned, 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 oemiionally consult among ourselves upon the pints
as they arise.
Mr. KELLY contended that this sixth count was bad,
because it was not stated on what particular class of
persons it was intended the intimidation 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 fur one which it was illegal for many
to do.--(lfere their Lordships again engaged in conver-
sation, and Mr. Kelly paused.)
Lord BaoucHAN---Mr. Kelly, go on, go on.

Mr. KELLY—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-
sons 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 act, 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 Queers's subjects
generally. The case of the King v. Hill and others,
2d Barnewall and Alderson, page 204, had been decided
by the Court rf 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 isprima 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
ease, the Attorney-General for Ireland could scarcely
utter a sentence, without mentioning some class of per-
sons to be intimdited. Now, if that had been stated
in the indictment, the d( fendants would have known the
charge against which they had to defend themselves ;
but as it was, if it mere possible so imagine a case in
which intimidation might he lawful by means of a law-
ful meeting, the count would be bad for generality.
He would net 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 would have been entitled to a verdict
of acquittal, and if such were the case be 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 roeet 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, awl 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 in Ireland, iato
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 cases when
applying a test to ascertain what was lawful and what
was unlawful, as a means of correcting an abuse. 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-
eific violation of the law was charged in the indictment,"
-Noone 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. He 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 findiug ought to 1

have been of one offence, only, and in the one count.
The principle of law was as applicable to misdemeanours
as to feloniee. The argument of the Attorney-General
was, that there was something in a charge of conspiracy
which distinguished it from any other charge with re.
gard to the number of defendants who might be found
guilty on such a charge. He was not aware of any dies
titiction between conspiracy and other misdemeanours.
The .question here was, not whether in the same indict-
inept in which there was a sufficient number of counts,
they could find A B guilty of one count, and C D guilty
of another —that could be done if there were a sufficient
number of counts--but the question was whether, under
one count, charging one offence, they could carve out 0
multiplicity of offences? For that there was no authority
used, and it was opposed to the principles of common
sense. In coming 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 be
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 rage 180. of the printed re'
part of the trial of the sixty-nine Chartists. The
Attorney-General suggested that in case of a 'pis-
demeanour it was nut at all necessary that all the,
defendants should be convicted on every count of
the same indictment. Mr. Baron Rolfe said no, but you
cannot have an indictment against A, B, and C for one
offence, and convict A of one offence, Bof another, and
C of a third, aed the me was so left t©- 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 flirtn, One offence was stated in the count ; three
offences were found by the verdict. One judgment was
passed upon all the of-lhnces aforesaid. It came before
their Lordships as one indivisible judgment on two more
offences than were ever presented by the grand jury. it
was impossible their Lordships could reject one or an-
other. The jury had divided on all, and, as it was joy
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 0
reference to those authorities which had been gone into
by his Learned Friend Mr. Peacock. Others had beent
adverted to by the Attorney-General, but the result of
the whole of the authorities was this, that a discontinue
ance, after a verdict had been given, and where the
parties were waiting for judgment only, could not be
caused by appearance. It had been stated, that from
the particular form of those phoceedings, 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 terns,
and made that extension the same for all purposes 00
if that extension had taken, place within the term.,
Well, then, it was said that this was for the purpose IN
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 on-
tinuance. Why, must not the power that was given to
them be not only for the purpoSe of the trial i'self, but
for the purpose of subpeenaing the witnesses, and giving
.force and effect to every trial connecte
with the trial and all its incidents. If the court
was supposed to have no.. other power than t"
hold the trial out of vacation; they would hare no Vs' et'
'to record the verdicts. The Legislature must have pre'
sumed, in giving this authority, to have known the prae-
tice of the courts, and that these proceedings were im
tended by it to be adapted to all forms. On those
grounds he submitted that whatever authority the count
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, tot appearing in the
record, there was manifest error, and the judgment netts'
be reversed. The Manner in which the discontinuance
should have been entered 'ln the record clearly apleliel.
in the case of " Hart and White," in the State Trial"
and in the case of the " King and Robinson." in =4l
Burrelth There was another point to which his Learned
e
Friend had thought it necessary to advert, and which, I:
not in the present, in many cases might become a polio
of great importance. The point of the judgment of ac.
quittal to which many of the defendants were entitled, ss
in many matters contained in this record, there had been
no judgment at and such. being the case, they could
not plead autrefois acquit to relieve them from it. In hid
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 teclant:
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.
apprehended that that House, sitting in error, had th"
right to amend a judgment in any criminal case, and on;
that ground he would submit also that the judgment
that particular point ought to be reversed. There was ands
ther point to which, although both his Learned Frieow
had adverted, he felt it his duty, considering its WI;
portance, to make a few observations, and that line
with respect to the right of challenging the array. The at
facts of that appeared in the record. They were 'the
the recorder ought to have delivered to the clerk °f net
peace a list of the juries for the year, that from ttnitneolc
a book should have been made, and that from thent
the panel ought to,have been taken by the sheriti• necle
it was said, on the one side, that he never made out. to
a list—that if he did, lie never delivered it ea
the clerk of the peace. It was said that
did deliver it to the clerk of the peace,
but thatthatsome of the names might have been wrongly plac
Now be conceived that when the allegation appeared
upon the record, in the language of the statute, the
meaning of the allegation was, that the substance of the
statute had or had not been complied with. If the Crown
had taken isette upon that, and it had appeared that,!
list substantially within the meaning of the statute, 01s,
'
though some of the names might have been misplaced,
and one or two omitted, had been riven in, there wou
have been a verdict given •for the Crown. But if it bal
appeared that the Recorder had never delivered a list,
and the panel had been made out on a fabrics,
Lion, that would be an abundant ground of elli,
lenge ;
.or suppose the Recorder had strictly
performed his duty, and had delivered in a list contei.l
ing the names of all the jurors, but that there the OW'
of regular proceedings had ended, and some third O;
known person had, interfered and furnished the sheriff
with a fraudulent list from which the panel had hl
struck. No one could doubt but that would. furrs
abundant ground of 'challenge fur trial by Pl°
would be a mere mockery if jurors could
selected from a fabricated list,' The great (11.1e4
tion was, if challenge of the array was the rig:
remedy. or not, and their Lordships were told, by
reason of a multitude of ancient authorities relating t_e
procet dings before-special juries were known, that it sl;
only by reason of :Ane charge against the sheriff that
challenge to the array could be allowed. He aprit`i,
hended that that doctrine was founded upon an
incorrect proposition—in point of law. The shalt
lenge of the array ' was given to the subJ,e-
in order that he might secure to himself a fair and id
partial trial by jury • and as long as the jury was neo
selected by statute, but by the sheriff or his officers, s
long the subject could be entitled to hisechallenge of ni;
ray only in consequence of default on the part of the
sheriffs. But when the statute created a new state cir
things, and intended to provide for the subject a grente,
safeguard, by providing due laws of a better characte'j
and when for that purpose the statute had superadde
to the slisriff other officers to be concerned in the II:
paration of the jury list, without taking away the chept
lenge of array, it was clear that the subiew f
was entitled to the challenge of array on account °f
the indifferences of those officers to a hom the dutY.°.
sheriff had been entrusted, as he would .have been unne",
the common law, on account of the unindifferency of ray
sheriff himself. Therefore, in. this case, they were sei
much entitled to a challenge of the array, on account s'e
the default of the Recorder, as they would have been °"ci
account of the default of the sheriff ; and when esbee
what must be the award' if this challenge to the .erred
were allowed, he would answer, that if the Recorder ha
duly made out the list, the award should be to the nee;
corder to deliver that list, that the jury panel might ello
formed from it. If they were of opinion that the,
Recorder had not duly made out the nbser
then -the award should be. to the proper emee-0
to make out the book, and if, in consequee7.
of any 'difficulty at any stage of the proceedinQ
it should appear that no good jury list could
u'o
made out for this year, then the' award should be to tj'b,
sheriffs to produce the jury list of last year. He t
'flitted therefore that the challenge to the array, oug,
to be allowed, and that on that ground also the PI
meat ought to be reversed. He would now briefly
pf
vert to the point of the. recognisances. The case
Hunt and White showed that in cases of misderneatl°l;)
it was competent for the court to order defendants bo
enter into recognisances to keep the peace, but it must f
for a reasonable time. But in this instance it was useeee";
taro for what time they were boded to keep the Pewioe''
No time was specified, except from the time of giving ''.ee
recognisances. This was entirely: against all praetl
and precedent, and it was further ordered that tb%l,
should be imprisoned until they entered into their o"A
recognisances, so that if they were never able to net,
sureties it was a sentence of perpetual imprisonroLece
It was different in cases of fine. Magna Charta recln"-e,
that no man should be fined beyond his ability to Pe.'e
therefore, when a man was sentenced to be imprison,eoe
until his fine was paid, the law presumed that he ',li-
able to pay and free 'himself if he chose. But the Oar
ing into recognisances with sureties did not
pend on the 'parties themselves. Magna Charts dicliFe, s,
compel any man's friends to come forward as smot=e,
He contended that the whole judgment ought te,"°,of
versed, because there was uncertainty as' to the. Ore-tee.
giving and taking the recognisances. It was said 00tfit
other'side, that this would only vitiate the judgmeend
part; but if it was bad in part, he held that it was "iier €.4
the whole, because the court of error had no Vry—ed:-
altering the sentence which the court below pronounctio&
and that the judgment must be reversed on this grcneld•
also. There was only one other point which he Won s•
advert to—that was, the point that the witnes,ee
were sworn before the grand jury, and. not innase
court, which was in contravention of the Act of Viel-ear.
and, in his opinion, the still mere important point, ose
the foreman had not certified to the co ocA -
that the witnesses were sworn, and had bill'
endorsed the names of the witnesses on the fac*,
The authorities cited showed only that no error in oar
was originally assignable in the Court of F43,,„eli;eclS.
Chamber as a court of error. His Learned -c!ibiect
contended that this error ought to be made the ole'.l Ito
of a plea in abatement ;' bahe had clearlystated tho.' the
declined so to make it. The defendants havirhould
means of discovering the error till after the trial, the
not be .bound to plead it in a plea in abaternenteneere-
Learnsd..Counsel .then referred to a case
tor
trieu.
Mr. Baron Parke, in which there being some
theyg ate.
jury, a new special commission was • issued, ar...`:00
parties were tried over again. They had the 0131"worre,
all the judges that if the witnesses were not duly s