The Sun.
London, England, 1844-09-04 00:00:00

THE STATE TRIALS.

WRIT OF ERROR.

HOUSE OF LORDS.-THIS DAY.
JUDGMENT IN THE CASE OF O'CONNELL

AND OTHERS.
The approaches to the House of Peers were as
crowded this morning as they were on Monday, and
within five minutes after the doors were opened the
galleries and the space below the bar were filled in
every part. The counsel occupied the same places
that they did on Monday. The attendance of Peers
was large. Among those present we observed the
Marquis of `Winchester, the Earl of Verulam, the
Earl of Stradbroke, the Earl of Shaftesbury, the Earl
of Hardwicke, Viscount Strangford, Lord Redesdale,
Lord Beaumont, Lord Brougham, Lord Denman,
Lord Cottenham, andrLord Campbell.
The Bishop of LICHFIELD and COVENTRY read
prayers.
The LORD CHANCELLOR laid on the table the sup-
plementary report of the Commissioners of Bye-laws.
His Lordship then took his seat upon the woolsack at
a quarter after ten.
GRAY r. THE QUEEN (IN ERROR.)

This case was the first called on for judgment.
The LORD CHANCELLOR said, that in this case he
could not find anything to add to the arguments of
the majority of the judges, that he was satisfied with
the conclusion to which they had come, and he
therefore moved that the judgment of the court below
should be reversed, and that a venire de novo should,
if necessary, be granted.
Lord BROUGHAM agreed entirely in the same opi-
nion, and in fact never entertained a doubt upon the
subject.
Lord CAMPBELL was also of opinion that the judg-
ment ought to be reversed, and with all respect for
the opinion of the majority of the Irish judges and of
the Learned Baron, who agreed with them, he
thought they were confounding the reason and the
rule. The reason for granting the peremptory
challenge might be in favorem vitae, but the rule was
to grant the peremptory challenge in all cases of felony,
and so the rule must remain until the Legislature
should think proper to alter it.
The motion for reversing the sentence was then
agreed to, and it was ordered that the court below do
issue a venire de novo.

O'CONNELL AND OTHERS v. THE QUEEN •
(IN ERROR)—JUDGMENT.
The LORD CHANCELLOR moved that in this case the •
judgment of the court below be affirmed. When this
case and the record of the proceedings in it were first
presented at their Lordships' bar, it had occurred
to him, as he believed it had occurred to every
other Noble Lord who had attended to those
proceedings, that it would be proper, both
with reference to the questions to be decided,
and to the nature and character of the other cir-
cumstances connected with the case, and in order to
avoid all possible suspicion of political bias on
the part of their Lordships' House, to have
the assistance of the judges. That assistance
had been requested, and those learned persons had
assembled in their Lordships' House,
,and had at-
tended with their accustomed patience to the elabo-
rate arguments which with great legal ability had
been urged at their Lordships' bar. As soon as was
consistent with their other duties, those learned per-
sons had assembled together, had :consulted on the
subject, and after giving it most mature and atten-
tive consideration, had attended before their Lord-
ships' and had communicated to them the results of
their consideration. With respect to all the points,
except one question, their judgment was unanimous.
With respect to that other question, seven of the
learned judges, with the Chief Justice of the Court
of Common Pleas at their head, had expressed a clear,
distinct, and decided opinion against the objections
which had been urged. Two others of the judges,
for whom he had the greatest possible respect, pr
°;
nounced an adverse opinion ; but in his opinion, and
he might be permitted to say, that he was sure their,
Lordships' concurred with him, at least such 01
them as were present on the occasion, that tlsat
opinion was accompanied with much doubt and beg'
tation. He thought, under these circumstances, unless
their Lordships were thoroughly and entirely satis-
fied, that the opinion of the great majoritY
of the judges was founded on a palPabf'
error, that they would feel themselves bound
by their decision to adhere to and support their jug;
ment, and to act in conformity with it. He woula
shortly state the nature of the question ; and after
the full discussion it had already undergone, he would
only briefly suggest such arguments as occurred to)131
mind in support of the opinion which he entertain°.
The indictment in this case consisted of several coott
—they were elm en in number. A general judginelle
had been pronounced by the court. Some of the..
counts were stated, by the unanimous opinion of 01:
judges, to be defective in point of law—to charge to
indictable offence. Others of those counts, in t
opinion of the judges, were defective in another re:9
spect—not that there was any defect in the coul3,!f
themselves, but in the findings, and the enterings
the findings of the jury on those counts. The gine,
tion was, under such circumstances, whether on it
fective count in an indictment, and other counts vfht'r,
were defective in respect to the findings and entae
ings of the findings upon them, a general PI
ment could be sustained ? Their Lordsl:ll4
would observe that this was a mere techni:o
question a question, he admitted, of grot
importance, which was never presented to the
below, not arising from their judgment, but arts
out of manner in which the judgment was en $e
up by those who were to discharge that duty 113°
could only: repeat such of the arguments shell': ato
dressed to their Lordships, but he must be allowteoct,
say that he always considered it as a clear, (3,svor
and undoubted principle of the criminal law ol,"e
land, that a general verdict was sufficient in a eP-00.st
this nature. Lord Mansfield laid it down in the e 0
distinct and full terms; he drew a distinction be'soe
civil and criminal cases. In civil cases lle
where there was a general verdict and general ds?_,,.
given by the jury upon a declaration consistlys,
several counts, and one of those counts was defecterea
the judgment might be arrested, or, if it was 100_1
up, it might be set aside on a writ of error ; blflfecs
regard to the same point—namely, as to the
era l e .tidr
one defective count where there was a gen se
ment, he said that was good in criminal cases't
the
stated it was good in criminal cases, and, if' lot
same time, he regretted that the rill% .011
ever been differently laid down in civil cases. it.i'cb 1°
said there was an exception to this rule, to
would presently allude. Lord Mansfield la' 90
st3t
the rule in terms, broad, general, comprehesos'_,.4 so,
without any exception whatever. But that sirt the'
the opinion of that Learned Judge alone. :ch Die
time he was supported and assisted on the beveci the
some of the most able judges that ever ad°l. f
tribunals of the country, and that opinion 0003 0
Mansfield was expressed in their presence,
not
course had their concurrence. That it Wes cite aye
opinion hastily formed was obvious from th9,ber Ihe
stance, that on a subsequent occasion, in anecioso pis
reported in " Cooper's Reports," he laid 0,0.
same doctrine in the same terms, in the or4ooo
prehensive manner, without any exception
atit he
cation whatever. He took it, therefore, tflt oat De
the general rule, and from the first moraerit't dist
~er
entered the profession down to the mailer r'etea
heard it agitated at their Lordships' h.7o,olyriwuril
heard it called in question. It v,,as tirlj 001° of;
upon without doubt and hesitation't.hoo3l,eisra
it in all the treatises and te" he "-oat
the subject. For the first t t.
ths-,,t eO-1
it stated at their Lordships' bar f juoe"
rule only applied to motions in arrest ee befsrey
He had never heard of such a doctrin anetiOtod
he was quite sure there was no case to s,O be st4e)
no decision to warrant it—no authoritY (I's
0,0
in support of it. The Learned Bert'said
who was in a minority on this occasietilie (the fise'
surprised to find it called in question. that 511
Chancellor) confessed that he shared in to, beat/po
for d'iti ea ° and he was quite satisfied, after all he ha"
the subject, that there was no ground joist bad
ground for the exception which had heel! as the_ 06
Observe what was the constant practice poi", for
Id bey „veldt
because from that practice they would the C°- te
er Orci'
find what the law was. In civil cases
the plaintiff deliberately examined the
nsered Teritlr
on what count the verdict was to he e of ell
the purpose of averting the consequeursi_ce in s
it upon a bad count. That never too,' P_Tuse less_otis'
minal case ; and this could not arise or c, Ole
tention was given to criminal cases, or os'tated
sel were less astute. Now what show e°lii"tl/cel
ground for exception ? It was said, co_
know that a part of the punishnlent 1(1; cisilregotef
awarded on a defective countan °t,
damages were awarded by the jury,l_,htit
tcoa s'
sum, and the court could not ten Is ti
sefec.-ce ,se
them were awarded in respect of the L.,,e slall toe
the
),hool`wal
and therefore it was necessary that
They had no means of a
that it 0
should he arrested, or if entered up, ,in h
reversed. But no such rule prevan:_bnieet.i „0,1.
cases—it was not necessary that pu 15,0-0 50C1.,r0)(1.
count. te" pe°
be awarded on any particular , could ref
tion could be sustained. o perso.o
edges 0.5
be ce
was not in the confidence of theried",6.ole•jefestlej
apportioning ,udg
of what judgment had been
ll‘fvtahere wasste
ference to the record itself.
count, t had aPPrctor-ct ,fes'
judge in awarding punishment hat
in resr
part o to
part or assigned any in ono
did it by any means
count? There was no similarity
ue from
They could not from reason arg
follow that -atect ops