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

had been followed by the Court below. Now he
must say that he thought there would be the greatest
injustice. The case was not the same as if some irre-
levant staff had been inserted which imputed
offences. But it was impossible not to see
that if there had been three or four indictments, some
of them bad, and the court had passed judgment on
all these, the case would be the same, and there would
be the greatest injustice, for the court might pass
its judgriaent on the strongest clauses, and then the
bad ones. The first case, which was relied on by his
Noble and Learned Friend was, that of the King v.
Powell, where the defendant was indicted for two
offences--assault with a certain intent, and with a
comm.n assault. The jury found a verdict generally,
and a writ of error was brought on the ground that the
defendant was found guilty on two indictments. Now,
there was one remark which fell from Mr. Justice Tann-
tan, to which he (Lord Denman) wished to direct atten-
tion. That learned judge said that there were not
two indictments, that there was but one act charged,
and that the defendant was found guilty of only one
offence. The words " misdemeanour" and " offence
comprised both the counts, and formed, in fact, a
women conjunctium applying to one act. He thought
that the decision of the judge separated that case from
this appeal. The next case relied on was that of the
" King v. Rhodes" for subornation of perjury. Some
of the counts were deemed bad, because there were no
assignments of perjury in them. The view taken of
that case by the Lord Chief Justice Holt was, that
there was only one offence, that of perjury, and
that it was no matter what were the assign-
ments. Now to him (Lord Denman) that answer
completejy removed the case from the present argu-
ment. The nutcase was an indictment against a man
and his wife for assault. There the objection was
somewhat of a grammatical nature. In the first pirt
of the Indictment the singular number was used in the
words " vulneravit et verberavit." But on the latter
part the error was corrected, " vulneravesunt et
verberaverunt." In that case Mr. Justice Parker held
that there was only one count, and that the verdict
was rightly found. These were the only cases which
were relied on, and these were all the authorities on
which the state of the English law before Lord Mans •
field was affirmed to be in support of his Noble
and Learned Mend. But they relied further on cases
which occurred anise. Let them first, however, consider
what was. the weight of Lord Mansfield's general
dictum. His Learned Brother, Baron Parke, with more
doubt than his subsequent argument seemed to war-
rant, had shown their Lordships that it was not of
great weight as applied to this case. He (Lord
Denman) concurred in that view. He would corns:
now to the causes-which were afterwards Vited. The.
first was the "King A t•sl Powell ar4 Ryan; that
case was relied on, but he could' n5--t see v_vjiat bearing
w
it had on the present case. There 'ere several
counts ; they•all charged one offence and some or the
counts were objected to. The judge said that he
would reserve the objections, but in the meantime
would pass sentence, and if all the counts were found
bad judgMent would be arrested; but if one
was good the sentence would be carried into
, effect, but that it was the practice of
e the Court of King's Bench to take care
t -sthat no verdict should be taken for the Crown on a
e'.bad count. The next case was that of the " King v.
siktuanli,''s.an indictment for obtaining money under
false pretences, for which the punishment was dis-
cretionary—either pillory with imprisonment, or
transportation. Now it was admitted that in the
indictment twoof the counts were bad; but it was
evident that there was great want of distinctness in
the case as an authority, for the learned reporter
himself said in his marginal note that judgment was
arrested. That case; however, was very different
from those in which the successive counts contained
cumulative charges, which would lead to greater
punishment in the discretion of the court. Now he
thought that in those cases, where there were bad
counts, the discretion might be ill exercised, and he
" thought the court was bound to arrest the
judgment, lest it should appear to have been
awarded on the bad counts. The " King v.
Young" was no authority on the point, although it
was relied on by his Noble and Learned Friends. But
there the court only refused to arrest the judgment
in the' way stated, because there were good counts in
the indictment, but it is relied on that because no
writ of error 'was brought the decision of the court
must be takin as conclusive. Yet, there was actually
rio means of trying in what way the judgment was
entered upon the record, nor was there anything
whatever to show whether a writ of error could or
could not be brought. His Noble and Learned Friend
said that the- point had never been decided by a
court of error, and, therefore, it was only difficult to
make out any authorities upon this very doubtful,
very loose, and (he would say) very censurable
practice. His' Noble and Learned Friend said
this was purely - technical in its nature, and
that the effect of it would be, that if a party,
were found guilty, not generally upon such an indict-
ment, but upon the good counts only, he would
not be able to defend himself in case of any
other charges being brought against him, by
pleading that he had been already punished ; for
the answer would be "No," because he had
not been punished on the imperfect counts.
What was the answer given by one of the most acute
and learned persons he had ever the good fortune to
meet with in an argument ?—let him observe not
stated with any doubt—it was stated by Mr. Justice
Coltman, . whose plain and manly understanding
brought the' question before them in a way that
could not be doubted. He said it was an injustice
. that, a person should be punished who could not plead
that punishuierit against being punished a second
time on the same state of facts. What was the
answer of Mr. Justice Patteion to that ? He said
that the proceedings would be estopped. Why were
they not estopped now, a conviction having taken
place on this indictment ? Now, again, there would
be a difficulty :in calling on the judge to decide at
the assizes whether a count was good or had ; and
they were to 'assume that he did so decide,
and they were to get rid of that question,
whether the decision was good, because he did not so
decide. They were to have it both ways. They
were to assist-he it was too difficult for him to give his
mind to the subject at all, and they were to say that
he had apportioned the judgment on those counts
which were good in point of law. He thought when
they got rid of the supposed authorities, the dicta
founded on a mistaken and unfortunate observation of
Lord Mansfield, that the principle would appear
altogether unsatisfactory, and he thought when they
looked at the 'record itself, without at- all advertino-
to the other Circumstances of the case, it would be
found that judgment was pronounced on counts
stating no offence, as well as on counts stating
that_there had been offences upon which there were
erroneous findings entered up, and that therefore
the judgments.Of the court below had been incorrectly
passed. He stated again that this point overpowered
him not only with its novelty, but with the clear and
demonstrated• force upon which, when he came to the
examination of the arguments, it rested, and he took
up, therefore, the principle on which he thought they
could only set aside the judgment of the court below,
namely, that what had been done by the court below
was not properly done. He regarded the Court of
Queen's Bench in Dublin with the greatest possible
respect, and he had the highest opinion of the talents
and endowments of the learned judges of that court.
He had still a greater veneration for the opinions of
his learned brethren here, with whom he acted,
and for whom he entertained the greatest pus-
Bible respect.. He acted there, however, as a
judge for himself, and he felt bound in duty to ex- j
ercise his judgment on the reasons brought before him.
He thoUght that the reasoning in support of the judg-
ment was not gOod in point of law, and it was his
duty to vote against the motion of his Noble and
Learned Friend.
LOrd COTTEiIHAM then proceeded to deliver his
judgment. He , agreed with his Noble and Learned
Friend who preceded him, as to the difficulty in which
any Member of the House was placed who felt him-
self called on to come to a conclusion adverse
to the great majority of the judges, and the
effect of an opinion expressed by a great majority
of the judges ought, of course, to make any one
extremely cautious of coming to a conclusion con-
trary to what was expressed by their opinion, and it
oulfht to make one watch every step one took, and to
weigh
t every conclusion which the mind was supposed
come to, in order that if a person came to an
pinion adverse to that of the majority; and he should
exercise all the pcwedr!frwith which he w as invested if
to a
he was to come
rent conclusion. He adopted
that course, he carefully attended to all that had
been urged at: their
the reasons that had Lordships' been bar, and all
urged by the
Lord Chief Justice in deliver the opinions
of the judges. He hesitated at ng
eserystisutecpamoef
the reasoning, as he followed him, and he
to the conclusion that the opinion expressed by the
majority was wrong, and the opinion expressed by the
minority was' right. He apprehended it was his
bounden duty to state the reasons upon which he came
to that conclusion. They asked for the assistance of
the learned judges, in order to inform the House, to
assist them in coming to a right conclusion in matters
of law, and their opinions were entitled to great
weight, but they were not to bind the House, they
were merely to assist the House; and no doubt when
a majority of them came to one conclusion, the great-
est caution and care should be taken at every reason-
ing upon which one felt bound to come. to a different
opinion. On a question which lately came before
their Lordships; there was a unanimous concurrence of
the judges, and two of their Lordships concurred in
their opinions, and two others dissented, so that the
decision come to 'was against the opinion of all the
judges. Upon one part of the case, to which his
Noble and Learned Friend had last adverted, namely,
the of the challenge of the array, he would
merely advert to, for the purpose of guarding him-
self against the supposition of forming an opinion

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