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

f right in expressing his doubt of the law
didi
not see civilhow cases
; couldfor bea slon as gjuries gave
their verdicts as at present, he (Lord Brougham)
otherwise. But in criminal
cases the law was clear from any doubt. The cases
decided, whether in arrest of judgment or in writs of
error, naturally deserved more weight than these
dicta. He thought the attempt had not been success-
ful to show a distinction between decisions in arrest
of judgment and in error. In the case of the King
v. Mason (2d Term Reports), which was tried in the
King's Bench, there were 6 counts and 2 were clearly
bad, yet it was ruled that the judgment was good.
That case had been taken to rule that the counts in
an indictment for obtaining money upon false pre-
tences must be so framed as to set forth the pretences.
The punishment was discretionary---imprisonment
or transportation—and it was argued in that
case, A 3 in the one now before their Lord-
ships, that the higher punishment might have
been awarded upon the bad counts. The judg-
ment, however, was affirmed. The Noble Lord
then quoted the case of Kin? v. Young in support of
the same view. It was objected, that in tke latter
case the objection was not raised as to what counts
were bad ; but that argument had no weight, for it
would have been the duty of the Court to point out,
if it had been overlooked by counsel, that such or
such a count was too general and was bad. The
Noble and Learned Lord then referred to the case of
the King :v. Powell in 2d Barnewall and Adolphus,
to show that the court considered the words crime
and misdemeanor as a nomen collectivum. It was to be
borne in mind, as one of the learned judges, Mr. Jus-
tice Maule, most accutely observed, that the sentence
and conviction only proceeded so far as the evidence
at the trial and verdict pointed out the species of
punishment. In meting out the quantity, the
court looked beyond the verdict and the evidence—.
in pronouncing sentence, the court took other matters
into consideration, but the sentence ct.uld not come
before the court of error for that. The record
must be so framed that there must, be a good find-
ing and a good count; to juistify a sentence
of that species and description. The manner in which
it was framed was immaterial, the punishment being
such as the law warranted for an offence so laid
and a conviction so had. When called on to pronounce
his judgment in this case he felt himself in this predi-
cament with his Noble and Learned Friend—that the
nine learned judges, as well those who on technical
points differed, or rather, had their doubts, as well
those who were dissentient as those who concurred,
had declared with one voice, that upon the merits they
had no doubt at all, that upon the great merits and
substance of the case they had no doubts at all, that a
great offence had been committed, an offence known to
the law, that a grave offence and crime had been per-
petrated, and that a punishment warranted by the law
had been inflicted, all the judges concurred. That
there were counts in the indictment charging cri-
minal offences were to be found against which no pos-
sible exception, either technical or substantial, could
be urged ; that these counts, even if they stood alone,
would be quite sufficient to support the sentence, and
that the sentence was one which the law warranted
justifiablel and he might even say commanded, there
was no doubt. Upon those great features —the
leading and essential substance of the case,
—all the learned judges had a clear, una-
nimous, and unhesitating opinion. To all the
points which had been urged, both those which
were essential, and those which were of a technical
nature, and urged with a degree of elaborate learning
and ingenuity which he had never heard equalled
either while he practised as an advocate, while he sat
as a spectator, or while he presided as a judge, the
learned judges had given the greatest attention. The
learned judges took time to consider for weeks upon
the results of those elaborate arguments, they con-
ferred together again and again ; each heard all that
his fellow judge had to urge, each had the benefit of
all that his brethren had to suggest, and the result of
the whole was that seven out of the nine pronounced
an opinion that there was nothing in the objections
taken, and that notwithstanding the technical infor-
mality of some counts, the judgment must stand. Two
of the judges gave a contrary opinion, one at least, a
contrary opinion, and the other would not concur in
consequences of the doubts which weighed and pressed
upon his mind. They were now called on to elect be-
tween both, and the question was whether
they should take their information on the law
as flaid down by those who were daily and
hourly administering—it from seven or from two.
It was the usual course when they consulted others
on whom they placed great and just reliance, those
in whom they confided for their integrity or impar-
tiality, who were without that bias which those who
consulted them might feel that they were not free
from, and when they found discrepancies to exist, to
weigh a little the grounds which they gave, but above
all it was the common course of rational and sensible
men, so consulting, to see were the great majority was
one way or the other, and when the great majority
was one way, and the small minority the other, that
created naturally a leaning towards that course, and
towards that couf:cel which was supported by the ma-
jority; but how incomparably was that increased
when the seven had a clear and distinct opinion, and
the two only doubted ; when the seven did not hesi-
tate or pause, when they had no sort of dubity or
hesitation, and were unanimous one way ? it was
the more natural thing for a person to take the opi-
nion of a majority who had no doubt, than the hesi-
tating and doubting opinion of the small minority.
That was a case in which he, unlearned compara-
tively with those learned persons, should hesitate to
set up his opinion and judgment against theirs, par-
ticularly
when such an opinion was fortified by the
large and long-continued experience which they pos-
sessed. All those learned persons agreed that this
was the very first time this objection was taken, and
that all lawyers, all judges and courts, heretofore
overlooked it, or rather acted on the supposition
that it was untenable, and that was a very
great assistance to him in forming his judg-
ment. He called for authority the other way, but
he called in vain, for while the learned judges
who were for the practice of the law, as it stood, pro-
duced cases, the dicta of judges, the authority and
opinion of the profession on the other side, against
that law, and in favour of the law that they were now
required to set up, pulling down the former law—not
one dictum of a judge—not one sentence of a text-
writer—not one shadow of a case had been pro-
duced. That being the case he felt more free in
dealing with a c.l=e so repugnant to him, and that he
was taking the safsr and the surer course in steering
by those authorities and decisions, and to tak as his
guides and his helpmates the opinions of those
learned judges whose opinions they had asked for.
He now came to the important question in which he so
materially differed with his noble and Learned Friend,
the Lord Chief Justice of the Court of Queen's Bench
—he meant the challenge of the array. Upon this
question the learned judges were unanimous. He
felt strongly the importance of this subject,
because it went to the jurisdiction of 'the
court on the matter. The court was con-
stituted of the judge and twelve men; those
twelve men had jurisdiction by being selected in a
particular manner. Well, then, the question was,
whether they had been selected in a lawful manner.
For the purpose of deciding this he must consider
how they had been selected. The challenge to the
array was always, it had been argued, understood to
be on account of the indifference of the sheriff or the
returning officer. Now there had been no authority
cited to show that there could be any ground for the
challenge to the array. If such a course was
to be adopted, a year might go by without
their having either a special or petty jury,
and his opinion therefore, was that upon this
point decidedly that there ought to be no venire de
novo. He would say little or nothing on the point
that had been raised as to the hardship on the tra-
versers in suffering imprisonment pending the writ of
error; the fact was, that the law was so, but whether
it was to continue so was another question. He had
now performed his duty to the best of his abilities in
this important case, and he had, therefore, only fur-
ther to state, that feeling himself bound to look to the
authorities of the judges, upon those authorities he
must give his judgment as to the plaintiffs in error.
Lord DErszaax then proceeded to deliver his opi-
nion. He would first advert to the judgment given
in the court below allowing the demurrer to the
challenge of the array. If such practices as had
taken place in the present instance in Ireland should
continue, the trial by jury would become a mockery,
a delusion, and a snare. To the traversers' challenge
of the array, on account of sixty jurors being
omitted, the Attorney-General for Ireland had des
murred, and by so doing had admitted that such 3
fact had taken place. One of the learned judges was
of opinion that the challenge should have been alloWed,
and with that opinion he entirely concurred. He felt
bound to disagree, therefore, with the opinion given by
the Learned Chief Justice of the Common Pleas. He
thought the principles he had laid down in his judge
ment were erroneous. The question was whether the
party had had a lawful jury to try him, and on
that point he regretted, but at the same time he felt
bound to differ from his learned brethren. He had
no doubt that their Lordships were aware that when
the judges were consulted, it was competent for any
judge, who was a member of that House,
to attend that consultation, but he had
been so struck with the proceedings
that had taken place in Dublin that he had written to
Mr. Justice Coleridge, who had been prevented from
illness from attending their Lordships, or even
leaving his room. Now there were many
circumstances in the present case, to which
d rt He would, how-
it was necessary to ve •
ever, first call their Lordships' atten-
tion to the letter he had received from Mr. Justice
Coleridge. He said, speaking of the question of the
_
I answer this question with
challenge of the array,
muck doubt, being unable to
look to the authorities
on the subject. All questions touching the formatiou