The Sun.
London, England, 1844-07-04 00:00:00

agreement to corrupt the Legislature—the Lords and
the Commons—would be trea,ted as an idle crime.

Lord CAMPBELL—Suppose C toge-
gether, having got 100,0001., to offer 1,000/ each to 100
Members of the House of 'Commons to vote in a certain
way, would not that be illegal ?
Lord BROUGHAM—It would require 1,000,0001., and
thatiwould rot be enough.—(A laugh.)
Lord CAMPBELL—Tiiat I LUprOSe is your price ?
Sir Thomas
.WILDE---d doubt very much, any Lords,
whether that would be treated• seriously as a crime.
The case put to me does not appear to create., the diffi-
culty lam presenting to our Lordships' minds, be-
cause to corrupt the Legislature would be looked upon
as impossible to be effect d ; but to intimi-
date it—that had often been done. Is not
the apprehension of consequences the motive constantly
of action in the LegiAature ? Now, is the intimidation
here alluded -to one of personal violence; the count war-
• rants no such conclusion ; there is no appearance of the
use of violence, nothing to. warrant the supposition
that personal violence was the species of inti-
midation . intended. How many persons, I will ask,
have been intimidated by a threat of resignation.—
(Laughter.) Why, such a threat has produced greater
consequences than the millions or hundred thousands
that have been talked of. - (Laughter.)
Lord BROUGHAM—Even when it was impossible.
Sir THOMAS WILHE—What, my Lords, was
the apprehension that produced Catholic eman-
cipation ? It was an operation in the under-
standing. The number of persons who meet is
important, as shOwing'public opinion. The crime in the
present case is striving to intimidate the Lords and
Commons, and that is no crime. There is nothing
shown except that it was intended to operate upon the
understanding and the law. The law will not adopt
that as a crime which is calculated to alter the opinions
of the Houses of Lords and Common's.

Lord CAMPBELL—Du you maintain, Sir Thomas
Wilde, that there is no good count in the indictment ?
Sir T. WILDE—I am prepared to maintain-that, but I
don't think it necessary. The present case is of import-
ance far beyond the interest of the parties concerned.
It involves the whole criminal justice of the country,
and it will be for your Lordships to decide whether the
general charges made in the indictment are sufficient to
substantiate a criminal charge, and one for whieh parties
are liable to suffer imprisonment. Indictments of this
general nature in all times, and in cases, lead to
great evils, and bring the law into great disrepute.
If these parties have been guilty of the acts laid to their
charge there was a much bettor mode of indictment

then-the present. The question has been repeatedly
put, whether there was a good count in the indictment,
and if it was stated that there was, the judges generally
applied .to the good count. In criminal cases the judge
always asked if there was any good count. The judg-
ment of the Court in a criminal case placed the judge
in the situation of a jury. • .
Lord BROUGHAM-With this difference, that the
judge knows which count is good and which is bad, and
the jury does not.

Sir T. WILDE -I think your Lordship will find that
that does not operate as a distinction in this case. If all
judges are supposed to know at all times what judgment
they ought to mive, writs of error are dead and useless
forms. The lbaw, on the contrary, supposes the possi-
bility of error in judgment. The law gives an appeal
from one Court to another on that assumption.
Lord BnounnAx.--I remember taking -this point in
the court of error before the judges, and Mr. Baron
Wood said, " We contend in the court of error that the
judgment was given below upon the count., which is
good.
_ _

Sir T. WILDE—A judge cannot say, if the Court
below has given judgment upon two counts, that he in-
tended :o give it only upon one. There- is no difficulty,
whatever in a Court having before it a defendant
for judgment.—(Their Lordships here consulted
for about five - minutes.) Why is it that, in civil
cases, the Court feels it necessary to arrest , the
judgment altogether, where general damages are found ?
The Court arrests judgment altogether, because it can-
not give judgment upon a bad count, having no legal
power to fix the proportion of damages. Care was taken
that the verdict for damages should be given on
counts which were unobjectionable. In a criminal
case there was no difficulty whatever. It is
perfectly competent to the Court to arrest judgment
upon the bad counts, and to pass sentence upon the good
ones. There is no reason which applies to civil cases
that does not also apply to criminal. In a criminal case
the Court is bound to give judgment upon
the good counts, and upon those counts alone. Judg-
ment is supposed to be compounded of the several offences
of which the party has been found guilty. There is
no ground, therefore, for the supposition, that in a crimi-
nal case the Court is authorised to give judgment upon
the whole record; good and bad,,, if there be a
good count and the mistake has arisen
simply from the judges saying in criminal
cases, when objections have been made that some
counts were bad, " We will not arrest judgment"—that
is, there shall not be an absolute arrest of the judgment
upon the whole record. Nothing was ever heard of so
absurd, as that the judgment upon the entire record is
good,whenthere are several bad counts and one good one.
It would be quite an anomaly if the Court could pro•
nouuce a judgment which was in truth applicable only
.to one count, as though it were applicable to the entire
record.

Lord CAMPBELL-Suppose there were one count only
in the indictment, and that count charging a clearly
indictable offence, stated several things which would not
be indictable ; and there was a general verdict of guilty
upon, the whole count. If judgment were given would
the whole count be vitiated ?

Sir T. WIDE (as we understood) intimated that he
thought it would.
Lord BROUGHAM—Was " The King v. Pellatt" a case
in error ?

Sir T. WILDE7Yes,.my Lord. y The Learned Counsel

-
then referred to the judgment of Lord Ellenborpugh, in
support of his argument. If the Court gave judg-
ment on the whole- of the counts might not intend-.
ments be made in the absence of evidence ? But

the record states that judgment is given on the
whole of the counts. What is the record ? A memo-
rial as to what the law is. If damages of 100/. were
given in a civil action on matters, some of which fur-
nished cause of action and some not, how would a court
of appeal deal with that judgment ? Refuse the whole
of it. What is the use of a writ.of error ? Its object
is to see what the Court has done on the record. Who
•could doubt that here a judgment has been pronounced,
and that the party is suffering an imprisonment upon that.
judgment ? And should any legal legerdemain pretend
that this judgment had not been passed on certain parts
of the record ? Surely it was sent up here as the record
of a verity. In an appeal against a judgment on a civil
action, part good and part bad, the judgment would
be refused. A writ of error is given only on
the presumption that an error has been committed in the
Court below. Yet when the writ comes before this House
are your Lordships to be told that something has been
done different from what the record states? Would not
the effect of that be to leave all in a state of uncertainty.
Parties were put to an enormous expense in having their
decisions examined by this House ; and after
this, were they to presume that the Court
below has done just what is right P What the Court
below has done is not a matter of intendment.,
it is inscribed in the record. The object of the
writ of error is to bring under review what the record
declares. If it is your Lordships' opinion that one years'
imprisonment and 2,0001. fine on Mr. O'Connell is a
punishment that applies to the offences stated in these
counts, this House is then in the situation in which it
would stand with respect to a decision of the Court be-
low, in which a jury has given damages on several
counts, some good and some bad. Tnere are no means
of disentangling these counts, or of saying what portion
of the year's imprisonment, or what portion of the fine is
adjudged to any particular count as compared with the rest;
and as you cannot apportion the punishment in one case
any more than you can apportion the damages in the
other, the judgment given on the whole of the record
'cannot stand, if any portion of that record is bad. The
proper course is this, to send the record back, and
to correct it, according to the: "facts, if any
mistake has occurred; -but nobody ever heard of that
being done in a case of this description. If lam asked
for authorities for the reversal of a judgment on a
record partly 'good and partly bad, my answer is,
the universal practice and general principle of 'the law.
On every appeal the case is treated as if it was an
original hearing, and the judgment given in the Court
below is not considered of the slightest authority;
and here' I refer your Lordships to the record
itself. On that record sentence has been passed with
respect to the offences disclosed in it. These words
are not to be treated as idle words. It is a matter of
clear law, that the record must speak for itself, and if
judgment has been given upon it, it must be supposed
that it is upon the whole of it. What would
be the consequence of your acting otherwise ?
In future times in inspecting the record, what is to guide
those who seek instruction from it as to what your Lord-
ships' judgment has been, except what you chose to
enter. Whatever decision your Lordships come to, that
will be the guide. But 'let me ask how the defendant
stands in point of plea here ? Is he not to
have the record framed in such a way •as to
give him the means of pleading one way or the
other. Is he to plead that he has been convicted, and
are the Court to conclude that he has been autrefois con-
vict ? Surely in a case of such a complicated nature as
this, it is of importance that the record should speak for
itself. When there was a necessity to have the record pro-
perly framed, with a view to a plea, it t' would
be an extremely vicious practice to say he
has 'lever affirmed it, if it be the course of the courts

below, which I deny, to enter judgment upon a bad
count of the indictment, because it would pass on
the good counts. There was no necessity for such a
course being pursued. Supposing that there were some
counts good and some bad. If the Crown was entitled
to judgment upon the good counts the defendants would
be equally entitled to judgment on the bad counts.
There is no reason why judgment should extend beyond
the legal bounds to which it is applicable.

Lord CAMPBELL—AIIow me to ask you, supposing
the Court of Queen's Bench in Ireland thought that one
of the counts, the 7th or Bth say, for argument's
sake, was a bad count, how do you suggest that it ought
to be entered ? .

Sir THOMAS WlLD—That ho should go thereof with
out bail.

The LORD CHANCELLOR—Can you give me any in.
stance of a record in a criminal case E framed ?

Sir T. WILDE—I am not aware of any such thing, but
it is easy to account for it, because there was no advan-
tage in requiring the record to be properly entered,
supposing the judgment to be entered on a count which
is good. The opinion of the Court is taken on a motion
for arrest of judgment, and the Court say we give judg-
ment on the good count, and the record is scarcely made
up at all. What is the foundation of the difficulty here?
(The Learned Gentleman was proceeding when our
report left.) -