The Sun.
London, England, 1844-09-05 00:00:00

GRAY ?. 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
sulject.

Lord CAMPBELL was also of opinion that the judg-
ruent 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 vice, 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 CIIANCELLOR moved that in this case the
Judgment of the court below be affirmed. When this
ease 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
tth, e part of their Lordships' House, to have
re assistance of the judges. That assistance
nad 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
;!ihjett and after giving it most mature and atten-
tive consideration, had attended before their Lord-
suiPsi and had communicated to them the results of
their consideration. With respect to all the points,
I!Cept 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,
uistinct, and decided opinion against the objections
Which had been urged. Two others of the judges,
for Whom he had the greatest possible respect, pro-
nounced an adverse opinion ; but in his opinion, and
Le /night be permitted to say, that he was sure their
nrdships' concurred with him, at least such of
them as were present on the occasion, that that
n
t'nion was accompanied with much doubt and hesi-
tation. He thought, under these circumstances, unless
their
eir Lordships were thoroughly and entirely satis-
"o,9, that the opinion of the great majority
the judges was founded on a palpable
error that they would feel themselves bound
their decision to adhere to and support their judg-
,,,ent, and to act in conformity with it. He would
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 his
mind in support of the opinion which he entertained.
'''ne indictment in this case consisted of several counts
-they were elel en in number. A general judgment
had been pronounced by the court. Some of these
jcounts were stated, by the unanimous opinion of the
udges, to be defective in point of law—to charge no
indictable offence. Others of those counts, in the
opinion of the judges, were defective in another re-
spect—not that there was any defect in the counts
themselves, but in the findings, and the enterings of
the findings of the jury on those counts. The ques-
tion was, under such circumstances, whether on a de-
fective count in an indictment, and other counts which
Were defective in respect to the findings and enter-
ings of the findings upon them, a general judg-
ment could be sustained ? Their Lordships
'would observe that this was a mere technical
question -- a question, he admitted, of great
importance, which was never presented to the court
below, not arising from their judgment, but arising
out of the manner in which the judgment was entered
lip by those who were to discharge that duty. He
could only: repeat such of the arguments already ad-
dressed to their Lordships, but he must be allowed to
say that he always considered it as a clear, distinct,
and undoubted principle of the criminal law of Eng-
land, that a general verdict was sufficient in a case of
t
,Vl' nature. Lord Mansfield laid it down in the most
distinct and full terms; he drew a distinction between
Civil and criminal cases. In civil cases he says,
where there was a general verdict and general damages
ten by the, jury upon a declaration consisting of
several counts, and one of those counts was defective,
the„ Judgment might be arrested, or, if it was entered
13+ it might be set aside on a writ of error • but with
regard to the same point—namely, as to the effect of
011 e defective count where there was a general judg-
,tlliera, he said that was good in criminal cases. He
Same
stated it was good in criminal cases, and, at the
nine time, he regretted that the rule had
Byer been differently laid down in civil cases. It was
said there was an exception to this rule, to which he
Wouldse presently allude. Lord Mansfield laid down
;4'.e rule in terms, broad, general, comprehensive, and
the
any exception whatever. But that was not
t. opinion of that Learned Judge alone. At that
Some
he was supported and assisted on the bench by
tribunals
of the most able judges that ever adorned the
Mansfield
of the country, and that opinion of Lord
ansfield was expressed in their presence, and of
011, rse had their concurrence. That it was not an
0 itzlion hastily formed was obvious from this circum-
Stance, that on a subsequent occasion, in another case
reported in " Cooper's Reports," he laid down the
same doctrine in the same terms, in the same com-
prehensive manner, without any exception or qualifi-
cation whatever. He took it, therefore, that it was
the general rule, and from the first moment that he
entered the profession down to the moment that he
heard it agitated at their Lordships' bar he never
iiaeard it called in question. It was uniformly acted
itP°ll without doubt and hesitation. He found
in all the treatises and text-books on
ite subject. For the first time he heard
stated at their Lordships' bar that that
pia Only applied to motions in arrest of judgment.
he had never heard of such a doctrine before, and
in
w,,eci as quite sure there was no case to sanction it—
s i un to warrant it—no authority to be stated
wbr,s"Pport of it. The Learned Baron (Parke)
ttir„: %Yes in a minority on this occasion, said he was
vrlsed to find it called in question. He (the Lord
and
confessed that he shared in that surprise,
ati
be was quite satisfied, after all he had heard on
g; subject, that there was no ground for doubt—no
posed the exception which had been insisted on.
be serve what was the constant practice at the bar,
tad
from that practice they would best know and
th' What the law was. In civil cases the counsel for
orie Plaintiff deliberately examined the record, to see
the%llat Count the verdict was to be entered up, for
it ti Purpose of averting the consequences of entering
Zin a bad- count. That never took place in a cri-
ln
tent, ease ; and this could not arise because less at-
sei ,„I°° WU given to criminal cases, or because coun-
grn'''ere less astute. Now what was stated as the
)(Con" for exception ? It was said, how could they
w that a part of the punishment had not been
trarharded on a defective count ? In civil cases
gages were awarded by the jury in an aggregate
the'e and the court could not tell what portion of
Thfo Were awarded in respect of the defective count.
44,,,e3' had no means of apportioning the damages;
0.10'4
itherefore it was necessary that the judgment
be arrested, or if entered up, that it should be
case But no such rule prevailed in criminal
be a----11 was not necessary that punishment should
tioh warded on any particular count. No such posi-
a "'ld be sustained. person could tell who
of what 1111'4 in the confidence of the judges in respect
fere at judgment had been awarded, unless by re-
counte to the record itself. If there was a defective
jak, ,zdid it by any means follow that the learned
part awarding awarding punishment had appropriated any
coutlAr assigned any part of it in respect to that
TiaA There was no similarity in the two cases.
could not from reason argue from one to the

' other. They must assume, unless the contrary, was
distinctly shown, that what the judges had done in
that repect was to enter up judgment on the good
and valid count. Upon a writ of error they were not
allowed to conjecture or decide upon probability.
They must look to the record, and unless the record
showed on the face of it a manifest error in the ap-
propriating of punishment they could not reverse the
Judgment. That was said by one of the learned
judges who was in favour of arresting the judgment,
and by consulting the terms in which the judgment
was pronounced, they would find that the Judges
took this into their consideration when judg-
ment was pronounced. They should not, there-
fore, run the hazard of reversing a judg-
ment upon a point which it appeared was
taken into consideration by the judges when judg-
ment was pronounced ; and, independently of this, let
them look to the record itself, and see whether in the
face of it there was any ground for the objection
taken. Every record must be construed according to
its legal operation. They could not go out of the
record. Now, what was the judgment? The judg-
ment in this case was, that the court adjudged the
parties for their offence aforesaid to be fined and im-
prisoned. There were two of the counts defective ac-
cording to the unanimous opinion of the judges,
because they charged no offence. Could they then,
construing the record according to the language of
the record and the legal interpretation of it, when
the words of the judgment were for offences, say that
the judgment applied to those counts which bore on
the face of them no offence whatever ? He would say
that was inconsistent and incongruous, and he was
sure their Lordships would not sanction such a con-
struction. The Learned Baron who was in the mi-
nority seemed to feel the force of that, and gave no
answer to it. But he attempted to obviate the force
of it by referring to the other counts which were not
erroneous in themselves, but on which the findings
were defective, and the entering of them erroneous.
It was the unanimous opinion of the judges, and he
concurred with them in that respect, that the findings
of the jury, which could not:be sustained, and which
were erroneous, were altogether null and void. He
considered that such findings were no findings at all,
and that a good count upon which there was
no finding was the same thing as a bad
count on which there was a good finding.
It was a mere nullity—it was not for the offence upon
the record, but upon the finding of guilty. Now, he
adopted the opinion of the judges that the findings were
a nullity, and, therefore, that there were no findings
at all. Such were the conclusions to which he had
come on the record. He was of opinion, if the record
was properly construed, it would be considered as
containing an award of judgment which was properly
laid. In the present- case, on the face of the record
itself, he considered there were no defects, and in that
opinion he was supported by the authorities of the first
judges of the land. Now, what were the authorities?
Why, the first was the case of the King v. Powell. '
Who were the judges who presided on that occasion ?
Why, such men as Lord Tenterden, Mr. Justice
Taunton, and Mr. Justice Patteson. Now, the judg-
ment that had been given in that case he considered
decisive upon the present one. Another case that
had been referred to was that of the King v. Rolls.
That was the case of e.ri information for the suborna-
tion of perjury, and in that case it was decided that
if one assignment was good it would support the
judgment, and it could not be invalidated on a writ
of error. The third case that had been referred to
was that of the Queen v. Ingram, and in that case the
court decided that the judgment was good if there
was only a sufficient count to sustain it. But then
there were another clsss of cases upon writs of error
themselves, to which he would now refer, and which
led to the same conclusion. It was said that there
were distinctions between cases in error and in arrest
of judgment—he could not see that; and in support of
his opinion he might advert to the case of the King v.
Fall. That case was an indictment for obtaining
money under false pretences; the judgment was en-
tered up and a writ of error was brought, and upon
that being argued by Mr. Fielding, whom many of
their Lordships as well as himself could remember,
the writ of error was dismissed, and the two counts ob-
jected to were declared to be valid. Such was the decision
of such men as Lord Kenyon and Mr. Justice Buller.
The Noble and Learned Lord then referred to the ob-
servations of Mr. Baron Parke on this case, and observed
that the Learned Baron said the judgment was a judg-
ment of transportation, which could only be supported
by the two counts. Now that was a most extraor-
dinary answer, for it made an additional objection.
If there was a general judgment, and all the counts
were good, and the iudgment would apply only to
two of the counts, then, according to the principles
contended for, that judgment would be erroneous,
because it was a general judgment sustained only by
two counts. That was the answer attempted to be
given ; so that there was an additional objection not
only where the counts were defective, but even if the
counts had been good the judgment, according to the
principle in question, would be an erroneous judg-
ment, because it was sustained only by two of the
counts. Therefore, he apprehended that that
was a strong and almost decisive authority in
favour of the present judgment. But there
was another authority, which occurred about
the same time, not quite so stringent an authority, but
going exactly in the same direction. It occurred, he
thought, the year before. lie alluded to the case of
the " King v. Mason." There was a good count, and
it was contended, and the count admitted, to be defec-
tive. By whom was that case argued ? By a gen-
tleman whom they all remembered—a most acute
lawyer, conversant with every technicality connected
with the profession—he alluded to Mr. Marryat.
Did Mr. Marryat make the objection that this count
could not be sustained ? There was a bad count
admitted to be bad, and this was a general judgment.
No such thing. Instead of doing that, he confined
himself to labouring the invalidity of the special count.
Did not that show what his opinion was ? Did not
that show also what was the opinion of the court,
consisting of the distinguished individuals to whom he
had already referred ? If not, would they not have
interposed and said, •" Why do you labour this
point, Mr. Marryat, there is one count admitted
to be bad, and therefore the judgment cannot be sus-
tained?" There was another authority in the time of
Lord Eldon, the case of Hill, referred to by the
Learned Baron. That was the case of a person tried
at the assizes for obtaining money under false pre•
tences. The indictment contained several counts.
The party was found guilty ; he was sentenced, and
a general judgment was pronounced. The question
as to the sufficiency of the counts came under the
consideration of all the judges. As the result of the
argument, one of the counts was decided to be bad :
so that in that case there was :a general judgment
upon a record, consisting of several counts, one of
which was admitted to be bad. A writ of error,
therefore, under such circumstances would, according
to this doctrine, have prevailed. What ought the
judges to have done after they had decided the ques-
tion ? According to this doctrine they ought, as a
matter of course, to have recommended the pri-
soner to a pardon. Did they do so ? No such
thing. The judgment: was carried into effect.
Had he not then made out, by a host of
corresponding authorities, the position for which
he contended ? He said it depended on prin-
ciple, and that the record in this case was sufficient,
according to the legal authorities. The principle was
supported by the host of authorities to which he had
referred, by Lord Mansfield, in the first instance, in
the Court of King's Bench, by the subsequent autho-
rity, at an earlier period than Lord Mansfield, in
the time of Lord Holt, and brought down to the pre-
sent time. No such objection was ever made, though
opportunities for making the objection had constantly
occurred. Therefore. it was perfectly clear that his
position was correct. Though the point had never
come expressly for opinion before the judges, it had
always been considered free from doubt—an estab..
lished point of law. Difficulties had been urged, to
which he should for a moment refer. One was the
difficulty arising from a pardon—a pardon as to a
part. It was not at all necessary for him
to say a single word upon that subject, be-
cause all the judges, even the dissenting judges,
said there was nothing in that agument. The argu-
ment would equally apply to an indictment upon
several counts, where such of the counts was free from
objection. It proved, therefore, too much, and on
that account it had no validity. Another difficulty
I which had been insisted upon was the difficulty in
which a party would be placed on pleading autrefois
convict. That had received a satisfactory answer
from the learned judges ; there was no foundation for
it. In all cases of pleas of that kind the question
was one of identity of error. It was a question of
evidence. The question was whether the corpus
delicti, upon which the party had been convicted, was
one upon which the judgment could be affirmed.
That was a difficulty which could only be settled by
evidence, and the objection was not one, therefore,
which could prevail on the present occasion. Now,
it had been said that there was no express de-
cision on the subject. A word as to that. If
a case were so clear, so free from doubt,
that no man, either barrister, attorney, or judge, even
entertained any scruples with respect to it—if the
point had been uniformly and constantly acted upon
and recognised, was it to be said, because there was
no decision upon the point, that therefore it was not
to be considered as the law of the land ? Why, the
argument led to this conclusion, that the more clear
the law, the more free from doubt, the more uncer-
tain it would be. It, was usage, practice, recognition,
that constituted the law of this country. Many of
the doctrines and opinions which were a part of the
acknowledged law of the land, were doctrines and
opinions with respect to which they would look in
vain for any direct decision. The practice, the usage,
the recognition, were considered as pi ecedents esta-
blishing the law, and this was the foundation on
which the common law of this country was based.
It Was admitted in this case that there never before

was a doubt on the subject, and the Learned Baron
confessed that he had heard the point for the first
time with surprise. No case was cited, no authority
referred to, no dictum, no text-writer for the objec-
tion which was now for the first time in this extra-
ordinary case advanced. Under these circumstances,
would they, or would they not, recognise the decision
of the great majority of the judges ? As he had said
before, that in a question of this kind of technical
law, with which they were every day and every hour
conversant—when they found a great majority of the
judges, with that eminent lawyer, the Lcrd Chief Jus-
tiee of the Court of Common Pleai, at their head, pro-
nouncing a clear, 'distinct and decided opinion, nothing
buts case free from all doubt—a conviction amounting
to absolute certainty—could justify their Lordships in
rejecting such authority. And it was, therefore, on
these grounds' on the ground of authority for the
reasons which he had humbly stated, on the ground
of the recognition of this principle as a principle re-
cognised in the law of England 'from time immemo
rial, that he called upon their Lordships to resist this
objection. He should say no more upon this point.
He requested their Lordships, in supplement to his
deficiencies, to refer to the papers upon their table,
and to the able arguments which the judges had re-
ferred to on that subject, and he was quite satisfied
that after a due and careful consideration of the
whole subject, it was impossible that they could
yield to this objection. With respect to the other
points it was hardly necessary for him to say a
word, and for this obvious reason, that all
the judges had concurred in the opinion,
that the other objections could not be sustained. To
one of these objections, however, he should very
shortly advert, because he believed that his Noble
and Learned Friend the Chief Justice of the Queen's
Bench, entertained a strong opinion as to that part of
the case. The objection to which he begged leave
now to refer was the objection as to the jury, the
challenge to the array. The court below had decided
that the challenge to the array could not be sustained.
The judges, when they had consulted on that occa-
sion, had unanimously decided that the challenge to
the array could not be sustained. On looking into
the law books he believed they would find that there
was only one principle on which the challenge to the
array had ever been allowed. It was something con-
nected either with the prosecution or the conduct of
the officer by whom the jury were summoned. Lord
Coke said that if the sheriff was unindifferent—if he
was not equal between the parties—that was a ground
of challenge to the array; if he committed any fault
in returning the jury, that also was a ground of chal-
lenge to the array ; if he was in such a situation as to
lead, under certain circumstances, to an inference
that he was in favour either of one side or
the other, that, too, was a ground of challenge
to the array. These were "the only grounds.
They were confined to the sheriff, or the other officer,
whoever he might be, who returned the jury. But
in this case there was nothing on the record imput-
ing anything whatever to the sheriff. He was not
stated to be indifferent—he was not stated to have
committed any fault. It was not suggested that he I
was not equal between the parties, or that there was
anything in the nature of favour. There was nothing,
therefore, upon that record, according to the law of
the country, as laid down by all their best writers
upon the subject, to raise the question of challenge to
the array. He knew of nothing in any law-book,
any decision, or any text-writer, that extended the
challenge to the array beyond the limits he had men-
tioned. He would suppose, as was said by the Lord
Chief Justice, the challenge to the array to be
allowed. The writ must be sent to the coroner.
What would the coroner do ?: Why he must pursue
precisely the same course which had been pursued by
the sheriff—he could not deviate from that course. It
was said, " You might go to the last book—this book
is defective, but you might go to the last one." lie
was quite satisfied that upon a proper construction of
the Act of Parliament that would be impossible.
When no book was made then the Act of Parliament
gave power to adopt the last book : but when the
book had been made up, as it had been in this case, it
was not a case which came within the Act of Parliament,
and the jury could not be selected from the last book.
It was almost impossible, considering the number
of jurymen inserted on the jury-books for the city of
Dublin—it was almost impossible to suppose that
mistakes would not conssantly arise ; and the conse-
quence must therefore be, that the books would be
defective ; and if they were to go back to the last
book, in all probability that would be defective also.
But was this a case without a remedy ? Undoubt-
edly not ; but the appeal to that tribunal was not the
remedy which the law allowed. It had no authority
to sanction it, and no decision to support it. What
the remedy might be was not before their Lordships
at present. They were dealing with the record
only. The matter of inquiry which had been raised
was, whether this was a remedy which the law had
pointed out for a defect of this kind, which had been ,
alluded to. He was satisfied that it was not. lie
would not have addressed himself to this argument,
if it had not been for the profound respect which he
entertained for the opinion of his Noble and Learned
Friend at the table (Lord Denman). The learned
judges had pronounced an unanimous opinion on the
subject. That opinion corresponded with the opinion
which had been pronounced in the courts below ; and
for himself, he took the liberty to state, with all de-
ference for his Noble and Learned Friend, that he
entertained no doubt respecting it. It was hardly
necessary for him, under these circumstances, to refer
to the averments on the record. There was, how-
ever, this single fact, which was remarkable, that
although the traversers said that they knew nothing
of the making up of the lists, and that they were
made up without their concurrence, yet none
of them stated that they did not know
that the books were made up of defective lists.
This was all he had to say on this part of the case.
There were several subordinate points on which the
learned judges had expressed an unanimous opinion,
and there was no reason to think that any of his
Noble and Learned Friends would differ from this
opinion. With respect to the point of discontinuance,
the answer of the Lord Chief Justice was conclusive,
that there could be no continuance entertained con-
sistent with the prov sions of the Act of Parliament.
Then, again, as to the plea of abatement, and the de-
murrer to that plea, nobody could doubt that
either in the criminal or the civil law that plea of
abatement was altogether vicious. Then there was
another point, which was a subordinate one, namely,
as to the swearing of the witnesses before the grand
jury. The Act of Parliament applying to this part
of the case was passed for the purpose of general
convenience. He humbly submitted these reasons
why they ought to concur with the learned judges in
the opinion which they bed formed with respect to
the great bulk of the questions which had been sub-
mitted to them, and why he thought they ought to
concur in the opinion of the great majority of those
judges, pronounced distinctly, firmly, and without
hesitation, in opposition to the doubt and hesitating
opinion suggested by the two learned judges to whom
he had referred, but with respect to whom, however,
he begged leave to express the deep sense he enter-
tained of their attainments and profound learning.
Ile submitted that on all these grounds, and under
all these circumstances, the judgment ought to be
affirmed.

Lord BROUGHAM expressed the satisfaction he felt
at having received in the consideration of this case
the able assistance which had been given by the learned
judges in their answers to the questions which had
been proposed to them. It was a fit and proper
course to call for that assistance in disposing of this
case. But they had adopted it without any regard to
the supposed difficulty of the questions which were
likely to be raised before them. They had called
in the learned judges because the case was one of
great public importance—it was a Government pro-
secution. It regarded an extensive conspiracy, and,
above all, it was a political question—one of exceed-
ingly great temporary interest among the parties
which divided the country, and which also divided the
two branches of the Legislature. Nothing, therefore,
could be more desirable than ;that they should as far
as possible and consistently with their duty call in
the aid of the learned judges, to ask them how the
points of the law which might arise in this
case would be regarded, and would be dealt
with by them sitting in their own courts—
those courts from which all cause of party
feeling, whether of one class or of the other, was ex-
cluded—where all bias, whether from popular in-
fluence or the authority of the Executive power, was
barred—those judges, who were placed by their
exalted position and their unsullied character above
any such vulgar control, who kept themselves un-
moved on their elevated heights—
" Despicere unde queas alios faseri per viam erantes."
They had had the benefit of that help, valuable in all
cases. He agreed, however, that they were not bound
up by the opinion which those learned persons had
given. The question had not been referred to their
decision, they had only been asked what their opinion
upon the points submitted was. The court of error
was to be guided, not by particular precedent, but
by the general course of precedent, and by every
usage. That such had been the opinion of the
profession and of the judges there could be no
doubt. The most important points which were
now before their Lordships were those raised in
the 7th, 3d, and 11th questions, which had
been submitted to the learned judges. In the
opinion which had been expressed by the majority of
them he fully concurred. The Lord Chief Justice of
the Common Pleas had beeh fifteen years on the
bench, while another of those learned judges had
been constantly engaged for forty years in the courts
of criminal jurisdiction, while a third had been more
than half a century engaged in the same course, and
all these had decided in favour of affirming the judg-
ment which had been pronounced by the court below,
and they had decided that there could be no diffe-
rence between a case in which punishment
1 was fixed by law and one in which the punish.