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

that count, his Learned Friends could fin I no case in
which judgment had been reversed. It was a confusion
of legal principles and arguments to confound the
amount of the sentence with the judgment which the
law sanctioned. The jury had nothing whatever to do
with the amount of punishment or fine.
Lord CAMPBELL—Suppose it were specifically stated
stated in the judgment, -" for the offence specified in the
first count," "for the account specified in the second
count," " for the offenee specified in the third count," and
so on to the eleventh count, and a certain sentence was
given of one year's imprisonment, or 1001. fine, would
you in that case say there is no error?
The ATTORNEY-GENERAL said he could hardly
answer an hypothetical question, but he ventured to say
that no such judgment had ever been entered up.—
(Laughter.) The analogy of the civil cases sought to be
established by his Learned Friends entirely failed. In
one case the verdict of the jury warranted the judgment
in the other, which was the court that gave Judgment,
and passed the sentence. He submitted to their Lord-
ships that that was the principle of the law, and that all
the practice and the opinion of the profession, from time
immemorial, supported him in that statement. He ven-
tured to ask his Learned Friends on the other side to
suggest to their Lordships the form of entering up
judgment. His Learned Friend (Sir T. Wilde) said
there was a distinction between a writ of error and a
motion in arrest of judgment. That when the
latter came on for decision the Judges said, "It does
not matter; if one of the counts are good, we will pass
judgment on that one." He doubted whether any Judge
had ever said anything of the kind. He spoke in the
presence of several Judges of the Queen's Bench, and
he put it to them whether such was the practice. Their
language rather was " If one of the counts are good, it is
unnecessary to inquire whether the others are good or
bad." Their Lordships would not decide this upon any
extreme case, but on the principles of law, and the de-
cisions of the courts. Should their Lordships pronounce
in favour of this objection they would be reversing what
was held to be the law of the land for the last 200
years, and under which 100 persons had suffered, and
were suffering at this moment. He had only one other
observation to make upon this point. His Learned
Friend had said that the defendants could not plead
autrefois convict, and that the judgment should not pe
reversed on this ground. But though a person was found
guilty on a count which was bad, yet if he suffered
judgment under it he could plead autrefois convict. His
Learned Friend put another hypothetical case.
He supposed that there were four counts in an
indictment, containing different offences, one for murder,
one for libel, one for an assault, and, the fourth, for an
assault, with intent to commit a breach of the peace He
supposed the verdict of the jury was given on all the
counts ; that the court of error had decided three out
of the four were bad, and that the party was sentenced
on the fourth. He next supposed that the Queen had par-
doned him on the fourth count; and he then asked how he
could be allowed out of custody? He (the Attorney-Gne-
.

ral) had the honour of being one of the Law Officers of the
Crown, and he very much doubted whether the Crown
had this power, supposing • that judgment had been
entered up. He would now proceed to the next point,
which was also of a technical nature, which was as to the
finding of the jury on the first and second counts of the
indictment. Those counts charged the defendants wlith
conspiring with one another, and divers other persons,
to raise and create discontent and disaffection amongst
the liege subjects of our said Lady the Queen, and to
excite the said subjects to hatred and contempt of the
Government and Constitution of this realm, as by lay/
established, and to unlawful and seditious opposition to
the said Government and Constitution, and also to stir
up jealousies, hatred, and ill will between different
classes of her Majesty's subjects, and especially to pro-
mote amongst her Majesty's subjects in Ireland feelings
of ill-will and hostility towards and against her Majes-
ty's subjects in the other parts of the said United King-
dom, and especially in that part of the said United King-
dom called England." He would stop there, because
their Lordships would find that the jury found them all
guilty of conspiring to do all those acts. The counts
went on to charge them with conspiring for other objects,
as to cause changes in the Government, law, and Consti-
tution, as by law established, and to bring into contempt
the tribunals for the administration of the law in Ireland.

The jury found seven of the defendants guilty of
conspiring with each other, and divers other
persons, and then they found three of them
guilty of the residue—of an unlawful conspitacy
to raise disaffection in the army. None of
the defendants were found guilty of the whole
of the charge, because the jury acquitted them of the
charge of procuring an unlawful meeting, the jury
having seemed to consider that the parties who met were
instruments and dupes, and they therefiro omitted the
words " seditious" and " unlawful," but they found that
these parties had conspired " to cause divers subjects of
the Queen to meet and assemble together for seditious
and unlawful purposes." That was the finding of the
jury, and it might be considered in two ways, but in
either way it did not affect the verdict. It was either a
part of the issue, or it was not. If it was a part of the
issue it could not affect the judgment. Now what the
jury meant was clearly this—that certain of the defend-
ants charged with conspiracy had agreed to do all the
acts mentioned in the first part of the declaration, but
that certain others of them had agreed to go further.
Well, the way they did it was this—" As to the residue
we convict them of a conspiracy to do nothing."
He should submit that that was a good find-
ing. Be would suppose the case of four per-
sons meeting in a room—all of whom agreed
to rob a house, and three out of the four to commit a

murder, to which the fourth did not agree. He appre-
hended it would be a good finding to find three of them
guilty to do all of the acts, and one to do one act only.
The meaning of the jury was that all were implicated in
the conspiracy, but not to the same effect, and he was
not aware of any principle which would prevent a jury
from coming to such a finding. His Learned Friends
had argued that the defendants were found guilty of
more offences than were laid to their charge in the in-
dictment ; that they were charged with eleven, and.were
found guilty on fifteen ; and that, therefore, as judgment
was given upon the whole, judgment was given for more
offences than the parties were charged with. He sub-
mitted that this did not vitiate the judgment, and that
though the jury found them guilty of more offences than
were charged against them in the indictment, it would
be considered a surplusage, and would be rejected by the
court below and the court above. The Honour-
able and Learned Gentleman quoted, in support of
his argument, 2d Saunders' Reports, p. • 208.
It was there argued that the verdict was invalid, because
the jury found on matters which were not in issue. The
jury found that the defendants had spoken slanderous
words which were not charged ; but the court held that
the objection to that part did not require the rejection
of the whole finding. He would not trouble their Lord-
ships with the numerous cases which he might cite in
support of the same principle. It was alleged in the
case before their Lordships that the jury found the de-
fendants guilty of three conspiracies where but one was
charged.. It was quite natural to observe that the judg-
ment was given for the offences aforesaid, and that
must mean for the offences charged in the indictment,
and on which the verdict had been found. But if the
finding included something which was not in the in-
dictment, that would not set aside the judgment. If
anything of that sort had been found, the Court of
Queen's Bench would have set it aside as surplusage,
and it would not affect the material parts of the verdict.
The LORD CHANCELLOR—It is quite clear that the
finding of something beyond the issues would be no
ground for rejecting the verdict, so far as it was within
the issue.

The ATTORNEY-GENERAL begged to call their Lordships'
attention to the words of the jury. They were these :
" That the defendants all of them conspired with others
to create dissatisfaction," and so on. That was the first
finding in the verdict ; and then they said—" And as to
the residue, the said Daniel _O'Connell," and so on.
Now that word residue itself was sufficient to show that

they did not mean to find the defendants guilty of three
conspiracies, but of one common conspiracy, in part of
the objects of Which some only of them had entered. If,
as was argued, that finding on the residue was a mistake,
yet it would not invalidate that part of the verdict which
was within the issue, and which declared all the eight
defendants guilty of the conspiracy charged in the in-
dictment.. In 2d Rowe's Abridgment, p. 714, there
was a passage to the effect that " When the jury finds
anything beyond the issue, that does not vitiate the verdict
on the judgment, as it is only surplurage." The
objection on this point had been argued upon the first
and second counts as if they stood alone, and the other
counts were treated as bad. But he apprehended that
there were other substantiated counts all coming under
the head of the one conspiracy. He did not think it
worth while to trouble their Lordships by dwelling upon
the objection, that because some were found guilty and
others acquitted of certain objects of the conspiracy, the
separate findings were for separate conspiracies. Where
a defendant was found guilty of some of the acts charged
in one count, and acquitted of the others, that was a
sufficient verdict of guilty. The next of those technical
objections arose from the discontinuance. Their Lord-
ships would give them the benefit of whatever they were
entitled to on that ground. The objection was this,
that the Court of Queen's Bench having given instruc-
tions that the trial should proceed on the 12th of
February, it did so. On the 15th of April,
the first day of Easter term, all the defendants
appeared to receive judgment. But that judg-
ment was again postponed to the 22d of May.
The objection was this, that there ought t ) be a con-
tinuance from the 12th of February to the first day of
Easter term, and that the defendants had not had a day
before receiving judgment. On this point, he was pre-
pared to submit that if this had not been a trial under a
particular Alt of Parliament, this would not have been
a defect or error. In ordinary cases, it would not be an
error. It was quite impossible that there could be a
continuance. The particular circumstances under which
this trial took place—were such as rendered the
form adopted the only proper one. This trial took
place under the statutes 1 and 2 Will. IV. Having
read the section, he proceeded to say that the
trial did extend beyond Hilary term, and was
terminated on the 20th of February without a
continuance; the Court could not only not pronounce
judgment, ut could do no judicial act whatever ; but
the verdict was sufficient without anything else, as the
defendants appeared in court on the first day on which
judgment could be given, and he submitted that this
was the only way in which the record could be made
out. This was no ground for reversing the judgment.
He need hardly state, that no court at this time of day
would reverse a judgment in a criminal case on a mere
technical defect of this kind, the act of the officer who
made up the record. He ventured to go further and
say, that unless there should be a distinct series of mi-
-1 questionable authorities binding the court to reverse its
judgment, on such an absurd objection the court could
not entertain it. He quoted the authorities which had
been cited by Mr. Peacock from Coke and Lyttleton,
and the cases of Smith v. Lock, Bradley v. Banks, and
the King v. Vitehen, from Lord Raymond's Reports.