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

utterly inapplicable. The Noble and Learhed Lord
then adverted to the cases of the Queen v.
Rhodes and the Queen v. Ingram, for the pur-
pose of showing that the court in those cases
had arrested the judgment on the ground that, some
of the counts being proved to be bad, the court
could not apportion the punishment. Young v. the
King had been relied upon on the part of the Crown.
He had carefully examined that case, and he
did not consider that the decision pronounced
in it had any bearing whatever on the
present. It had been said, that in the King v.
Mason, a misdemeanour was charged on two counts,
and therefore the judgment was sustained. Now that
was not the fact ; and in the King v. Fuller, it was
clearly laid down that judgment could not
be passed if there was any good count. From
all these authorities, it appeared that the rule
in criminal cases, on a motion in arrest of judgment
was, that the court having ascertained, before it pro-
nounced judgment, what counts were good and
what bad, awarded the punishment, as it thought
right, upon the offences contained in the good
counts. It appeared to him that a court of
error was in precisely the same predicament.
It had no more jurisdiction over the quantum of pu-
nishment, and no better means of referring one por-
tion of it to one count, or another to another, than a
civil court had with respect to damages in an action.
In both cases the judgment proceeded on an indict-
ment which was found to be defective, and having
come to one result upon the whole, which the su-
perior jurisdiction could not apportion, the same
necessity existed in the one case as in the
other, of holding the whole to be bad. It
had been urged that much inconvenience would arise
from adopting this rule. He felt satisfied that the
inconvenience which would arise from the opposite
course would be far greater, and would in many
cases be productive of great injustice. The only
inconvenience was, that the prosecutor would be com-
pelled to be careful as to the counts upon which he
rested his case; whilst the rejection of
the rule would deprive the defendants of the benefit of
a writ of error. The rule contended for by the de-
fendants was founded on principle, and necessary for
the purposes of justice; and it was in perfect analogy
with the decisions in civil and criminal cases. The
opinion which he had then expressed he formed early
in the argument. He had carefully attended to all
that had been urged at the bar by the
majority of the judges against it, and lie
had not found any reason for altering his view.
Lord CAMPBELL then proceeded to read his judg-
ment. He said it was now his duty to state to their
Lordships the opinion which, after great considera-
tion, he had formed upon the questions of law raised
by this record, and to these, of course, he should strictly
confine himself. In the first place, he had no doubt
that there were various good counts in the indictment.
A conspiracy: to effect an unlawful purpose, ur to
effect a lawful purpose by unlawful means, was, by
the common law of England, an indictable offence ;
and if several persons deliberately plotted mischief to
an individual or to the State, they were liable to
punishment, although they might have done no act
in execution of their purpose. Where they had
actually done what they intended to do, it
might be more proper to prosecute them for
illegal acts; but in point of law, they remained liable
for the offence of entering into a conspiracy. The first
five counts in this indictment clearly charged the de-
fendants with having conspired together to effect un-
lawful:purposes. The fifth count was strongly objected
to. He considered that any person who deliberately
attempted to promote feelings of and hosti-
lity between different classes of her Majesty's sub-
jects, to make the English hated by the Irish, or
the Irish by the English, was guilty of a most
culpable proceeding, and that, if several combined to
do so, they committed a misdemeanour, for which they
might be indicted and punished. He was likewise
clearly of opinion that the plea in abatement was bad
in form, if not in substance, for not averring that
there were not other witnesses duly sworn, on whose
evidence the indictment might have been supported,
and for not showing that the witnesses who were
examined could not on account of their religious
profession have been lawfully examined without being
sworn in. He thought the Court of Queen's
Bench was fully authorised to continue the trial in
the vacation, and that the order for that purpose,
though conditional, was quite sufficient. In his opi-
nion, the rule of the common law requiring the con-
tinuance of the order did not apply. The question
raised by the writ of error coram nobis was more
doubtful. The assignment of error in respect to the
witnesses not having been sworn in court, was free
from defects fatal to the plea in abatement. He
had no difficulty in over-ruling Mr. Steele's
point, that there was no statement written on
the indictment of the names of the witnesses sworn.
He was at first much struck with the objection to the
validity of the judgment by reason of the form of the
recognisance into which the defendant was required to
enter, and he was by no means free from doubt upon
it then, although he was not prepared to say that it
would be a sufficient ground for reversal. It must be
taken to be part of the sentence pronounced upon the
defendant for the offences of which he had been found
guilty, and it could not be separated from
the finding. The recognisances imposed in this
case might lead to perpetual imprisonment.
Magna Charta provided that no fine should be im-
posed upon any party which it was out of his power
to pay. The effect of the sentence, in this case,
would be, that if the required recognisances were not
found, the party would remain in prison for the rest
of his life. He felt still more difficulty when he
came to the next part of the case—probably the most
important part of it, as it was not merely a technical
question, but one which affected the administration of
justice—he meant the constitution of the jury by
whom the defendants were tried. The only question
here was, whether the challenge to the array was a
remedy which the law allowed. (The Noble
and Learned Lord here read that portion
of the plea of the defendants which applied
to this part of their case.) Now, he was
clearly of opinion that the defendants ought not to
have been tried by a jury constituted in the manner
described in the case of the plaintiffs in error. It
was there described not merely as a casual
omission of names, but the averment was that the
names had been fraudulently omitted. He conceived
that under such circumstances the panel ought to
have been quashed. No other remedy was suggested.
His Noble and Learned Friend on the Woolsack bad
suggested no remedy. If the jury list was found to be
defective, the jury list of the former year
ought to have been brought into operation as thOugh
no list had been formed for the current year. He
confessed that he should not have been inclined to ad-
vise their Lordships to reverse the judgment merely
upon this ground upon his own sole opinion, but since
writing his judgment he had listened to the argu-
ments of his Noble and Learned Friend the Chie
Justice of the Queen's Bench, and also those of Mr.
Justice Coltman. The jury were unanimous in the
opinion that the finding of the jurymen on the Ist,
2d, and 3d counts of the indictment were contrary
to.law. His opinion was that the punishment must
be taken as having been bad awarded in respect of
the supposed offences charged in the bad counts.
According to the plain use of language and the com-
mon sense of mankind, the defendants were being
punished on charges which did not amount to crimes,
and for crimes of which they had not been con-
victed. With respect to the bad counts, it was said
that it was a rule of law if there were any good counts,
a bad count would not vitiate the judgment. It
would be strange if such were the universal rule.
Such might very well be the case where only one corpus
dilicti was charged in an indictment consisting
of more than one count in utile per inutile non
vitiatur ;" but where the separate counts of an indict

anent charged distinct offences, they must be consi-
dered as separate indictments, and, as had been shown
in the case of Feargus O'Connor, where the court

had arrested the judgment upon one count as
soon as it was discovered to be bad. They
were told that they were to presume that the
court below knew what . counts were bad,

and what were good, and passed judgment upon those'
counts only which were good. Such an opi-
nion would be contrary to the whole spirit of our law,
which supposed judges to be fallible, and provided a
machinery by bills of exceptions, writs of error, and
other expedients for the correction of any errors into
which they might fall ; and it would be contrary to
fact, for all the judges in the Court of Queen's Bench
in Ireland had held the sixth and seventh counts to
be unexceptionable. He would suppose a case,
in which there were two counts, A and B,

A being a good count and B a bad one, the court
below held B, which charged a grave offence, to be
good, and A, which charged a light offence, to be
bad, and passed sentence on the count B, would it
be held that a court of error, finding the count B to
be bad, would be bound to subject a man to that
severe punishment, because A, charging a lighter
offence, was good ? This doctrine was attempted to
be upheld on authority, and by the general
opinion of the profession. The dictum of
Lord Mansfield referred solely to motions in
arrest of judgment, and not to writs of error. It had
no application at all to the present case; and in the

cases of the " King and Mason," and the " King and
Young," the point had not been raised. The case in
" Russell and Bligh" amounted to nothing, as the
Court had no power to consider any thing but the
point reserved; and in the " King and Powell" it was
decided that misdemeanour and offence must be con-

sidered as a novum collectinum, and as both counts

were held good, there could be no doubt that the judg-
ment was correct. In indictments for perjury, if
one assignment were good, that would support
a verdict, because perjury was but one offence, and
one good assignment was sufficient to support it,
how many bad ones soever there might be in the
indictment. It was said that this indictment ought
to be supported on the ground of expediency. He