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

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array—unless that ancient practice were repealts4l7-----;•,--:* '
by a direct Act of Parliament, he Nonld- sisV---'-=----;'4
i
believe that there did not still exist a reinalyin;:luchs:Alm-
cases as these. The objection having been well taken, —w
it ought to have been allowed ; and not having been
allowed, the trial had erroneously proceeded. In the
20th of Edward 111., it was argued that a
case was vitiated by the party being de-
prived of his right of challenge, on account
of the omission of individuals from the list, and it
was replied that there were good names enough re-
turned by the sheriff ; but it was held by the court
that the document was one and indivisible, and the
consequence of that would be that one error would
vitiate the whole, and the whole was accordingly
set aside. What made this case the more remarkable
was, that a charge of indifferency was brought
against the sheriff, and he was tried and acquitted on
that charge, but it was held that he was to blame
for the difficulty that had arisen. He (Lord
Denman) could not leave this subject with-
out adverting again to the want of remedy.
It had been thrown out by some learned persons that
application to the court should have been made.
Were the Queen's subjects to apply to the discretion
of the court in order to have a lawful jury to try them
for their lives, for their liberties, or for their most
important interests ? Was it a thing for a motion
on affidavits and written depositions, when the party
accused was always the party swearing last, and after
all the matter was referred to the discretion of the
court? But on this case such a motion was made
and was refused, but on what ground it was refused
he did not know. He knew nothingfurther of the pro-
ceedings than what he had seen in the papers. He under-
stood that the whole jury list of Dublin consisted of
717 names.. Now the special jury list, of course,
would be a very inconsiderable portion of this num-
ber. Sixty names out of this proportion was enough
to affect, of course, the panel. It was not improbable
that if those sixty names had been on the panel, that
the jury might have been drawn from that number.
He would now proceed to the other points of the case.
He did not entirely agree with the learned judges,
in thinking that there were only two objectionable
counts. Ile was by no means clear that there was
anything illegal involved in the expression of opinion
against courts of law for the purpose of having other
counts submitted that would be more satisfactory; but
however it was quite enough for his argument espe-
cially as all the learned judges had given an unani-
mous opinion that they were bad counts—that two
counts in the indictment were bad. The question was,
whether the judgment that had been pronounced, and
the sentence which had been passed, could be good
under the circumstances ? The question was A
and B are good counts, C was a bad
count, and the court pronounced sentence
upon the defendants in respect to A, B, and C. Here
were three counts, on all of which evidence had been
taken, and a verdict was taken upon each of these
three counts. A conviction was obtained, and the
court proceeded to pass sentence, and the punishment
was awarded according to the discretion of the judge.
Now it-was possible that the court had taken into
account the bad counts as well as the good ones.
They had been told that they must assume that judg-
ment had been pronounced on the good counts only.
Now in the first place, he had a serious objection to
that. The presumption was in direct contradiction to
a notorious fact. If they were to assume this, future
students at law in Dublin would, on a referenee to the
reports of the Queen's Bench in Ireland, find that the
fact was contrary to that which their Lordships had
assumed. The learned judges had stated that two of the
counts were bad, while the Court of Queen's Bench
had declared that they were perfectly good and un-
exceptionable. This put the question entirely out of
court. He had felt with his Learned Brethren great
surprise when he heard the ingenious argument which
had been addressed to the court on this subject, and
he confessed that he never felt any doubt on the sub-
ject until that argument was submitted to his mind.
Now, the question was, whether in point of fact
there was legal ground for doubt to be entertained.
It was not the first time that a court of justice had
taken that view. He remembered at the time that
his Noble and Learned Friend, now on the Woolsack,
presided over the Court of Exchequer, a case was
brought before that court, in which it was proposed
to overrule not the mere dicta of judges, not merely
an opinion which had been received with favour in
Westminster-hall, but a series of decided cases run-
ning through a period of fifty years. His Noble
and Learned Friend, now on the Woolsack, had
examined those cases, and in giving judgment
had stated that, inasmuch as the decisions in those
cases were clearly founded in error, they were not
binding. That was the case of Hutton v. Vann,
which had afterwards come before their Lordships'
House, and their Lordships were of opinion that they
were bound by the authorities, but that had not pre-
vented his Noble and Learned Friend who presided
over the Exchequer from entering into the con-
sideration of those cases, and of deciding that
they were not good in law, as they all originated
in a mistake which had crept in in the time of Lord
Mansfield. He had heard his Noble and Learned
Friend, with that admiration with which he had al-
ways heard him, lay down the rule on this subject. But
their Lordships were not to be satisfied merely with the
opinions of the judges, they had a duty of their own to
perform. They must satisfy their own consciences.
The opinions of the judges were merely the materials
for snaking up their minds, and they must be satisfied
before their minds were made up. What had
happened in that House not twelve months
ago ? There was an universal opinion of the
bar founded on three distinct judgments of different
judges of former times, as to the law of marriage.
Lord Mansfield, Lord Kenyon, and Lord Ellen-
borough had all taken the same view as to the nature of
the marriage contract, and Lord Stowell, who had
had half a century of experience, and who had de-
voted the greater part of his time to the considera-
tion of this subject, agreed with them in opinion.
Their Lordships had entered on the consideration
of the case, and had requested the attendance and
opinion of the judges. The judges had given their
opinion, which was contrary to the opinion of their
predecessors ; but their Lordships, convinced by the
arguments which had been laid before them, differed,
toto ccelo, from the opinion of the judges, and felt
bound to say, according to their own convictions, that
the judges had not taken a correct view. On that
question their Lordships were equally divided, and the
consequence was that the judgment of the court below
was affirmed contrary to the opinion given by the
learned judges. He admitted that when he had first
heard the argument on that point at the bar, he had
heard it with surprise, but his surprise had afterwards
changed its object, and he was surprised, not so much
that the objection should have been taken, as that
such a rule should ever have been considered law. He
was convinced that it never had been law, and the
slightest attention would show that such was the case.
It had arisen from a dictum of Lord Mansfield's, not
in a case relating to the criminal law, but in a
case relating to the civil law, when he was not called
upon to inquire into the state of the criminal law on
the subject, and when he went out of his way to
make a grievance against the law, as he thought, he
found it by making an antithesis between the civil
and criminal law. He said that in a civil action in
which there were several counts in the declaration,
and in which a jury gave general damages,
such a verdict would be laid aside if one of
ce of such
he commented upon the inconven e
the counts of the declaration wienre bad, and
a rule. He regretted that it had not occurred
to Lord Mansfield that there was a plain remedy for
this inconvenience, and that he had nothing to do,
while sitting at Nisi Prius, but to tell the jury to
assess the damages upon each count, and then the
verdict could be set mile upon those counts which
were bad, while it would stand upon thoie which
were good. Why it should be necessary to say that
the rule was different in criminal cases he (Lord
Denman) was at a loss to know. No doubt since
that time the opinion had been universal in 'Westmin-
ster Hall. The bar had all expressed the same opi-
nion, and why? Because they had taken the law
for granted. And here he would say that they
looked at the law in columns, as it were,
to consider on what it rested. They would find that a
certain portion of it rested upon Acts of Parliament,
a certain other portion upon decisions, a certain other
portion upon dicta, and a considerable portion of it
would be found to be taken for granted. There was
a great deal which was taken for granted as law
which, when examined, turned out to be no law at all,
being founded on no reason, and resting on no deci-
sion—and such, he thought, was the case in the pre-
sent instance. Ile thought that his Learned Brethren,
on Monday, must have forgetten certain facts con-
nected with the administration of the criminal
law. They had stated that in an indictment
for felony, consisting of several counts, it
was usual to take a general verdict, and if
there was one good count that was sufficient. He
denied that that was the universal practice. Whenever
lie tried criminal cases in which there were several
"Do you think there is any
counts, he always put it to the jury in tcludsehmaanpneeinr—t ?
if not, you will acquit
f attempt to murder,
stance, in case of an indictment or
him Onh.indiatonpoint." For in.
hetosome grievous
e ettemp attempt
bodilymurder,harm,
maim,
w oul asna3d,,witb disable,regato ddo
It is clear that he never
will strike that out at once.
will .
, "If you consider he didr not intend to murder, you
no evidence to support
intended to disable, therefore you. acquit him on
that point. There is
with
regard to
the intention to mann ; and.
consider it Now, in that case a jury would
the count alleginq, some grievous bodily harm,
will •
you
most probably bring in a verdict of not guilty on the
three first counts, and convict on the last
alone. That was the proper course for a
judge to pursue, and one which would
remove all difficulty. It was said that• the
adoption of such a course would 'give rise to the in.
convenience of the judges being called on to form as