The Sun.
London, England, 1844-07-09 00:00:00

indictment. Now, if upon such an indict-
ment as that—it was quite immaterial of how many
counts it consisted—the defendants had been convicted
of three totally different and distinct offences, and had
then gone before the Court of Queen's Bench to receive
judgment, and had made a motion in arrest of judgment,
their Lordships would then find a precise application of
this principle to the one case of an arrest of judgment,
and to no other. If he had succeeded in satisfying the
court that the count of conspiracy to injure a man's
credit as a merchant was ill-laid and bad in law, and
and that the Gaunt for turning the man out of his pro-
perty was ill-laid and bad in law, but that the count re-
lating to the foreign legislature was good and valid in
law, what would have been the conduct of the Queen's
Bench ? Why, they would have passed sentence upon
the one good count, and have said nothing as to the
others ;• whereas they would have passed a sentence of
three years' imprisonment if the three offences had been
proved, they would have passed a sentence of one year's
imprisonment for the offence of which the party had
been duly convicted. Justice would then have been
done, and the motion to arrest judgment would not have
prevailed, because one of the counts had been held to be
bad. But now he would suppose the same case in a
a writ of error. In a case which he would
put in which two sets of counts were bad,
and in Which the court passed sentence upon the good
one, it would be the duty of those who made up the re-
cord to enter judgment upon the good count, and to enter
no judgment at all upon the bad counts. But if, instead
of that, judgment were entered upon the record as if
sentence had been passed for the three distinct offences,
how would the doctrine then apply ? If their Lord-
ships looked at, the authorities, they would find nothing
whatever to warrant the statement that although one
good count would support an indictment on a motion to
arrest judgment, the same doctrine had ever prevailed
upon argument' in a court of error. It was in its appli-
cation that the error existed, and not in the dictum itself,
which was just and right when properly applied. The
dictum in the King v. Ingram was perfectly correct as
applied to an arrest of judgment ; but altogether incor-
rect as applied to a writ of error. The case of the King
v. Fuller was a case of reference to the judges on a
point reserved at the Old Bailey ; and the object was
not to reverse it judgment, but to submit to the court
whether the parties should be pardoned, or the judgment
stand as it did. The last caie, that of the King v.Vinty,
established the principle for which he (Mr. Kelly) con •
tended. Lord Mansfield there said that the judgment
should not be arrested by reason of one or more of the
counts being bad. But he gave this express reason for
it, that .the court might lessen the punishment if the
count were bad. Why, he besought their Lordships to
consider the effect of that doctrine falling from Lord
Mansfield. In that ease the Court will not arrest the
judgment, but will lessen the punishment. These were
all the cases that had been confirmed, and the question
was, Whether anything in these cases, or any others.
ruled that the principle so soundly applicable to, motions
in arrest of judgment applied also to writs of error. He
had pointed out hypothetically the strange and incredi-
ble results that would be caused, if this doctrine should
prevail ;' it would cause the most frightful injustice.
'Parties might suffer an imprisonment of years,
and sustain perhaps the loss of a fortune under
the false contents of an 'indictment for one venial
offence. When these consequences were submitted
to their Lordships, he contended they must pause before
th-ey produced them, unless there was some grand over-
ruling authority or decision which should be binding on
that blouse. But he entreated their Lordships to re-
member that the House, sitting as a superior court of
error, was called on, for the first- time, to lay down the
doctrine; the effect of which would be to inflict such
cruel injustice. Before he passed from this point alto-
gether, he must observe that it was not to be wondered
at that the authorities should be so few on this
point. , From the mode in which the criminal
law -in this country was administered, it must easily
occur to the minds of their Lordships that writs
of error on charges of misdemeanour must be of
very rare occurrence. With regard to cases of misde-
meanour at the aisires, in ninety-nine cases . out of a
hundred the persons indicted were of a station in life
,that deprived them of the means of bringing a writ of
error ; and with respect to the whole of this class of
persons, if a point was reserved, it waszenerally settled
and determined by the judges.
Lord BROUGHAM reminded Mr. Kelly that this Court
decided on points of law laid down by the practice of the
courts of law and equity at Westminster, without ever
coming to the House of Lords.
Mr. KELLY—Certainly. But in this case it should be
made out what had been the practice in writs of error.
It was vain to expect that there should be many autho-
rities on this point. In trials for misdemeanor, which
were removed by certiorari into the Court of Queen's
Bench, the public were generally! satisfied with the
decisions of that Court, and on looking through the
books he scarcely found so many as four writs of error
or misdemeanour during the last century, nor in any of
them was there anything like a decision in which it was
distinctly held in argument that where there was a con-
viction for several different misdemeanours one good
count was enough to support the indictment. It might
be argued that when the judgment was given " for the
several offences aforesaid,' this might be taken to mean
the several offences that were well laid. But if it were
doubtful that the judgment was passed in respect of the
several offences. well laid, still he apprehended that the
' judgment must be bad for ambiguity. In order to maintain
the sentence it must appear distinctly on the record what
the offence or offences were for which sentence had been
passed. If, therefore, the record left it doubtful whether
i: was for the offences, well or ill laid, that was sufficient
to vitiate the. judgment. But he contended that the
words ".offences aforesaid" must refer to. their last ante-
cedent. And in pages 78 and 79 the finding stated all
the counts against the several defendants, and then imme-
diately afterwards found Daniel O'Connell guilty of all
the several offences, including all the counts, both good
and bad. Now he would suppose, in order to see the
meaning of these terms " several offences"—suppose in
an indictment there were two counts—one alleging one
offence, and the other another ; supposing there was a
verdict of guilty on each, and then judgment was pro-
nounced against the party, that he should be imprisoned
twelve months for the several offences; supposing upon a
writ of error it was found that one count was bad in law
and the other good, so that there remained but one offence
well laid in point of law, what would be the meaning of
judgment for the several offences ? It must mean the
several offences whether well or ill charged in the in-
dictment. In the present case one meaning must be
given to several offences, whereas in cases where there
are only two counts other and different meanings must
be given to those. words. Where they found several
offences charged in an indictment, and they must sup-
pose them to be legally charged, the only meaning given
to the term " several offences" must be one offence. Upon
these grounds he. would 'submit that if there was one
count bad the jbdgment must be reversed. The present
convietion was forseveral misdemeanours, aad the de-
fendants had appealed to their Lordships to be relieved
from offences of which they had been illegally convicted.
If their Lordships did not affirm this doctrine and re-
verse this judgment, the consequence would be that their
. Lordships would be maintaining and perpetuating a
punishment, not in respect of offences of which parties
had been legally convicted, but continuing punishment
for offences of which the parties were not legally con-
victed, and that too upon the presumption that the par-
ties had been convicted upon the. good counts. That
court of error could not assume the jurisdiction of ap-
propropriating the offences upon which the parties were
suffering punishment ? The only course left open to
their`Lordships was either to affirm or reverse the judg-
ment below. If the court reversed the judgment then
the case must 'be- sent to another tribunal, where the
case must be tried over again, and if the parties were
found guilty they must -be punished according to the
crimes they had committed. He would now submit to
their- Lordships that there was at least one bad count
in the indictment. He contended, for his own part,
that every count in the indictment was bad ; but having
been preceded by several of his Learned Friends,
and 'particularly by Sir T. Wilde, who had called
their Lordship? ettention to all the counts, he would
only trouble the House with two of the counts which he
contended were bad in the face of them, because they had
not charged any offence with legal certainty. Those
two counts were the sixth and the eighth. The sixth
related to the exhibition of physical force, and the
eighth to the transfering of other legal matters to other
tribunals. ' With -respect to the sixth count it was too
general. It showed no legal offence. In order to con-
stitute the legal offence of conspiracy, it must be ex-
pressly alleged that the conspiring was for some unlaw-
, ful object ; and. if "fdr an unlawful object, it must be
shoWn to be such, and not merely called so. It was not
sufficient to allege that persons had unlawfully conspired
by unlawful means to do an unlawful act. But it must
be shown that the means were such' as were necessarily
unlaWful, or thnt'the end and object must be necessarily
unlawful. This 6th count, when considered well, would
be found to' amount to this : that eight persons men-
tioned, unlawfully, maliciously, and so forth ,conspired
and confederated to cause and procure, and sided and
assisted in, causing and procuring, divers subjects of the
Queen to assemble in large numbers for the unlawful and
seditious purpose of' changing the laws and constitution
of the realm. ahe'first part charges that they conspired
to procure a large:aisembly of persons for a certain pur-
pose. Now to procure alarge assembly of persons was
not illegal ; it must .be shown that the assembly was
illegal, or- that 'the purposes 'for which they wens-
met was so. Then' the count want on to say that
they caused them to assemble for -an unlawful *lld-fedi-
tious purpose. Now if the count stood there alone the
count was . clearly' bad. Here' the purpose was stated,
and therefore upon that- count the only question for
their Lordships was, whether the purpose stated to be
unlawful' and _seditious was upon that' statement' clearly
shown to be either 'one or, the other? A conspiracy to
procure changeein the Constitution was clearly not Ille-
gal. Could it be said that the parties who took mea-
sures 'tO procure the union of Scotland and Ireland with
England, which Would affect a great alteration• in the
law, were guilty of. an illegal conspiracy? or could it be
said that the conspiring to procure the Catholic Relief
Bill, or the Reform Bill, both of which measures
effeeted great changes, had committed an illegal act?
The endeavour to procure a change in the law was a
14011 object. Let, them consider if what was laid in
. the count was necessarily unlawful, or if it were to be'
brought about by necessarily unlawful means. The means
were intimidation, caused by assembling meetings of the
people. Who was. to be intimidated? Was it the Parlia-
ment or the Soiereign?Thitt might or might not be illegal
Or was it any othpr person whom it might be perfectly
legal to intimidate? So with regard to the words de-
monstration of physibal force," it was not stated on
whom that was to operate. The count was bad from
unperteinty. It ought to have been distinctly charged,
whom it was that wes, to be intimidated—on whomthe
demonstration of physipal force was to operate ; for, un-
less .they could establish the prpposition that it was
il-
to assepPe a meeting pp giumPate anybody, Al' tq
operate b'y i"detuoristridou of phybical force ou anybody