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

THE STATE TRIALS.

(FOURTH DAY.)

WRIT OF ERROR.
HOUSE OF LORDS, July 2.

- _
THE QUEEN AGAINST O'CONNELL AND OTHERS.
Their Lordships met this morning at ten o'cloek, when
Mr. KELLY resumed his arguments for the plaintiffs.
The Learned Counsel said—ln resuming his argument
he had now to submit to their Lordships upon this
writ of error, that upon an indictment for several diffe-
rent and distinct misdemeanours, if one count in the
indictment were bad the judgment must -be reversed,
and that the opposite proposition which 'must be con-
tended for by the Crown, that on a writ 'of error for
several misdemeanours, with one judgment and one
sentence, if one count were good the judgment must be
affirmed, was unsound in law, unreasonable, and unjust ;
because it must in such cases, at least in many cases of
such a character, be a presumption contrary to the
known truth, opposed to all legal pineiples, and wholly
unsupported by authority. It was a doctrine of which
some loose and vague notions might have entered into
and prevailed in the minds of even the most learned
judges, by reason of the doctrine being sound and right
as applied to motions in arrest of judgment in criminal
cases ; but when the rule came to be applied to the case
of writs of error, it was found in reason and justice al-
together inapplicable, and it would lead, in a
variety of eases, which might be • imagined, to
the most . frightful degree of injustice. It
would be found to - suneunr:to this, that if, in a
civil case; coming-before the 'Court of Error, where there
was one judgment upon several counts of a general cha-
racter, the court were reasonably satisfied that with
respect to one of the bad counts the jury could not add
one shilling to the damages, yet, as it was not their pro-
vince to assess the damages, if one count were bad the
whole judgment must be reversed and the venire de novo
ordered. In a case precisely 'the' same in principle,
where there was one.judgment for several different and
distinct misdemeanors, where the court must feel satisfied,
in point of fact, that one general sentence might have
been pronounced in respect of -those . several misde
meanors, they having no ' power by law to apportion or
divide or modify the sentence, - nevertheless that which
in a civil case they would be bound to do with reference
to damages they could not do in a criminal case, though
satisfied that the parties before them are-suffering punish-
ment for several offences, tifeall but one of which they
had been illegally convicted. -This was a proposition so
strikingly unjust and unressongble in itself, that he felt
satisfied that when he should have called their Lord-
ehips' attention to the consequences which'in a great
mane cases must result if this were 'declared by their
Lordships' House to be la*, and when he should have
shown that there was no:; authority whatsoever to be
found in support of such a proposition, he felt confident
that their Lordships would, not in that case for
the first tune establish • a doctrine which, though
perfectly sound and reasonable and just when applied to
motions in arrest of judgment in criminal cases, would
be unreasonable, unjust, and contrary to every principle'
of their law, if applies:l to. eases of conviction for several
misdemeanours. It was only necessary to look prac-
tically at what actually happened, and what might
happen again upon an indictment for several
different misdemeanours all included hit the several
comets of 'one indictment to see the impossibility
of applying this principle, which arose in motions in
arrest of judgment to cases of writs of error, after cone
viction without at once reversing and overturning every
principle of law, and what was perhaps of far more
importance every principle of natural justice, he would-
submit one or two cases that might be' applied as tests
to the soundness of this proposition, First, how-
ever, let it be considered what was the actual
practice ; whether it was in .fact the. practice to indict
several persons under one indictment for several misde- •
meanours, and if these persons -were convicted. not of
one', but really of several misdemeanours, committed-in
succession, whether it must not. be the practice in ail
criminal courts to impose a much severer punishment on
those convicted of several offences, than if they had been
convicted on'y of one?' And this was especially necessary
in cases of political conspiracy. If the case were of
some one misdenieaneur which was undoubtedly 'fele-
nious—although, if eteictly examined, the legal.principle
of the proposition could not be maintained even in a case-
of felony—still, they foul:d that it was the practice to
indict the samepersonsin.a.prosecution for several mis-
deraeanoutii, and if a person were convicted of one nes- '
demeanours only • punishmentewoold be light and venial.
If two or Mete successive and different misdemeanours
were proved, then the punishment would be proportion-
ately aggravated. Where persons were guilty of three
misdemeanours of different characters and 'degrees, and•
there was one offence of a very insignificant character,
but the sentence in respect of the whole of the offences
was very heavy and severe, yet if the court of error
found the party illegally corrvioted •of the graver 9f-
fences; but lawfully convicted of. the lighter one,
it would commit a perversion and misapplication of
a sound legal principle, if it did not' reverse that
judgment. Would`.. their Lordships affirm .that
under the law 'of this country, a heavy punishment
and a heavy sentence might: be imposed upon persons
illegally convicted, of those (Ounces, in.whieb a heavy
punishment was awarded ? In troubling their Lordship
with some illustrations of this peieeiple, he would refer
to two or three cases by no means hetaginary, or beyond
the bounds of possibility, by which they, would sot only
see enough to prove that the• doctrine wCntld be produc-
tive
of most grievous injustice, but would ..gt,ye rise to a
system of absurdity and filsehood in the veil judges,
the high ministers of
.justice _themselves, if they hap-
pened to sit as judges in a court of errorin a proseeution
of this kind. Take the simple ease of a number of per-
sons indicted for two conspiracies. Two men, needy
and hungry, n:ay agree to go into the next, baker's shop
and steal a loaf to satisfy the cravings of their appetites.
Thatieet eortspiracer to eommit felony,. and they might
be indicted for it. ''fiae the same persons' next day may
have conspired to break'open a house by night, and rob
and `murder. the inhabitants:. They would 'be indicted
under one indictment on two counts for these two several
conspiracies. They may be convieted, and a motion may
be made in the court where they a ore tried in arrest of
judgment. • It might be argued -that boeb, the counts were
bad, and theeourt might be of opinion that-they were both
good, and proceed to pus-sentence upon thene Were they
to suppose that any'court in this country -would pass
exactly the •same sentence on the two poor and-hungry
men who took a loaf from the baker's shop, as the) would
On those convicted of a conspiracy to break open a house
and rob and murder? It would be an insult to any in.'
dividual of ordinary judgment;_to entertain such a pro.
position. In one • ease there would 'be the most lenient
sentence which the I.s.w permittecl, while the very heaviest
that could bepassed w'nuld be inflicted on the other. If.
judgment were passed foreehe severest sentence, and a
writ of error was brought' before this House, and this ,
House should hold that the coitnt charging the conspi-
racy to rob and murder was 'bad in law, and could not
be maintained, but that the count flie,,,the conspiracy to
take the loaf was a good one, upon the siceeteine contended
for by the Crown this High Court of Error must affirm
that judgment; by sending the parties back to the prison
from whence they came, and must' inflict upon. ehem the
severest sentence which the law allowed, though Avery
member of the court should feel that the parties were
illegally convicted of the only crime in respect to which
such a sentence could be passed, while the days' or
weeks' impiisottment they might have suffered under
their sentence might be an ample punishment for the
offence' of which they had been legally convicted ; yet •
theyrwere to be told by the law officers of the• Crown,
that in such as that the subject was without remedy.
Lord CAMPBELL said, looking to what was -merely.
possible, there might be two counts in the indictment,
and the Court below might think the bad count a good
one, and the good collet a bad oace and might give
sentence on , the bad count;- if it then came to a court of
error would that judgment be supported ?
Air. KELLY said he was about to put that case, and
under circumstances which would startle every- one if it
could be applied for a moment. He was not suggesting im-
possible er even improbable easel . let them look back
but for a years to the history of their own times, and
see if cases haze not actually occurred in which parties'
had been indicted' for a great many misdemeanours of
such varied charact'er that a conviction oil one might be
followed liy.a fine of a-shilling; and a 'conviction mettle
by the heaviest sentence "the Court could pronounce.
They were here on a case ot*political conspiracy charged
against a number of persons hewing one ultimate object;
which was in itself perfectly lawtiel, it being to effect a
change in- a particular Act of 'Parliament. • The
question was the -character of ,the means they
• agreed 'on to ' effect "that object. Ile would
not illustrate -the' case by anything that' . had oc-
curred in this very cause, because 'he wed-rather
frain from • plug • mit,' 'of 'the record. But , let
their Lordships look back to what had occurred two` or
three years since when a contest raged throughout thee
country for the purpose of obtaining what was denomi-
nated—the People's Charter, when . it was desired to.
obtain what was called the five. points of the Charter.
How different he would ask were. the means resorted to
to obtain that object? The prosecution of Mr. Fergua
O'Connor, who was tried before Mr. Baron Rolfe,
eloied as many-different 'degrees of -guilt es it' was Pose.
Bible to conceive. The' collecting of persons in Public.-
heuses, up to the proceedings of Frost and his associates'
to commit Meirdee and treason. Now if that proceeding'
had taken iilace in the North of England instead -of
Wales, according to the principles laid down on the other.
wide, they. must have been tried altogether. There must
then have been a conviction upon several.. counts for '
several misdetneanonrs. Was. he driven- to • ask the
question whether upon an indictment 'like that where a
trivial offence vets''charged in the • first • count, and the
other counts increasing the 'offence in semostmaterial de-
gree—incieseing till it mime tO murdeee-was it to be said
that they were all`tolie found guilty on the. last count,
:whereas some of them would only have been guilty of
the offence charged in the 'first count? Supposing that
the Court of Queen's 'Bench,- on the ease comma before
them, bad held that the ten -counts wersegood in law,
could any one doubethaetheCourfw•etildpass a severer
sentence for the offences cointained he the ten-counts,
than if the Court' had 'held that -the nine- taunts were
bad, and the -first only good? would s'uppose that
nine counts were bad. Had the subject his Writ ef error,
or was he altogether withont reinedy ? -Here were. men
. suffering the severest sentence of. the law—they are ado
vieed that they were illegally convicted, yetl the law
afferdi them no redress—they bring a writ-of -error in
that House, and upon that writ, of error the Lord Chief
Justice of England, who should have heard the argue
' teents, and come tie-the centlusion that the counts were
good, and had participated hiethe-judgment on the par-
ties, on the ground that Iheyebild been- guilty of ten
crimeseinstead of one—yet' that Noble Lord could sit in
that Houie on a writ of error from his own judgment.
Then, upon thevrit Of error' in that House, the vali-
dity of the whole teiteennte is argimd, and Upon-re-con-
sideration the (dord Chief Justice, and the other mem-