The Sun.
London, England, 1844-07-08 00:00:00

hers of the Queen's Bench, may be of opinion that
their former judgment was incorrect. Their Lordships
might be also of opinion that nine of the counts were
bad, and that consequently the parties before the House
had been illegally convicted of nine grave charges, while
in fact they had only been guilty of one very minor
offence. In what situation, he would ask, were their
Lordships, if the law was what was contended for on the
other side P Was he to be told that the parties might
apply for a free pardon ? Why was a Court of Error
allowed in that House, but for the purpose of correcting
the errors of other tribunals ? In political conspiracies,
where hundreds of men joined together to effect a certain
object—the repeal of an Act of Parliament, or so on—
some might attempt to effect that object by lawful means,
others might attempt to effect it by unlawful means, and
others by the mo,t criminal means. They would then
be led to this conclusion, that in prosecutions of this
nature, where parties suffering the sentence of the court
bad been illegally convicted of a greater offence, but had
been legally convicted of a minor offence, the Court of
Error must lay aside every principle of justice, and
affirm the sentence, because it must assume that
that sentence had been passed for that for
which, in fact, it had never been passed. The
injustice and the absurdity of such a course of pro-
ceeding must be manifest. But he would suppose ano-
ther case, not a case of political conspiracy. Suppose a
man indicted at the court of quarter session for two
libels, the first altogether a libel in law, yet one of so
trivial a nature, that if it had stood alone no one would
hare thought of prosecuting it ; the other an accusation
of some horrible offence, such as incest. Suppose him to
be tried, convicted, and sentenced. He moves an arrest
of judgment on the ground that the count charging the
graver libel is bad in law. The Court holds that both
are good, and as they would only have passed a lenient
sentence on the first count they do their duty and
pass a heavy sentence, because he has been convicted
upon both. The case is brought by writ of error before
the Court of Queen's Bench. The Court of Queen's
bench held that the first count is bad and the second
good, then this doctrine of presumption would prevail
and the Court would refuse to reverse the judgment, be-
cause they would say that it was to be presumed that the
Court below had passed sentence for the offence which
was well laid, and for no other. The Court, therefore,
would affirm the judgment in accordance with this doc-
trine of presumption. A writ of error would then be
brought before that House, and both counts are again
argued. Their Lordships, including the Lord Chief
Justice, who had heard the case, argued before, and also
the other judges of the Court of Queen's Bench, who
had joined in that decision, are of opinion upon graver
deliberation, that the Queen's Bench was wrong, that
the second count was bad, and the first good, it would
be the duty of the court of error to reverse the judg-
ment. But if this doctrine of presumption were to pre-
vail they must affirm it, and they would have this ab-
surdity—the Court of Queen's Bench affirmed the
judgment, because they presumed that the court had
passed judgment only on the second count which they
considered good, and the House of Lords affirmed it,
because they considered that sentence had been
passed not on the second count which they considered
bad, but on the first, and the unhappy defendant who
was thus passed from court to court, having expressly
heard the judge say, " You have this sentence passed
upon you because you have been convicted of two
offences," would be told by the first court of error "You
are punished for one offence only," and when he came
to that House he would also be told that he was pu-
nished only for one offence, but that offence a different
one from that which he had been told heves punished
for by the Court of Queen's Bench. What a spectacle
would. thus be presented before the enlightened people
of this country, who are so justly proud of their laws
and institutions, and who looked up with such respect
to their Lordships' House, as the purest, most just, and
most independent tribunal in the world. This defendant
might see seated in that House the chairman of the'
quarter sessions who had sentenced him, the Lord Chief
Justice, before whom the writ of error had been first
brought ; and when he had proved to the satis-
faction of their Lordships, that he was suffering
a grievous sentence for two offences, with respect to one
of which he had been illegally convicted, he could not
appeal to the Noble Lord who had sentenced him, and
who told him that he had been sentenced upon two
counts—he could not appeal to the Chief Justice of the
Queen's Bench, who told him that he was suffering the
punishment for the graver offence ; but that House, act-
ing upon this doctrine of presumption, told him that he
was suffering, and must suffer this heavy punishment for
that other offence, of which, if he had been alone con-
victed in the first place, he would not have suffered one-
half of the imprisonment which he tad-suffered before
coming to that House. And if, after_ that decision, those
who for the future framed indictments for conspiracy
were not more careful, these cases would be of constant
occurrence. Was it possible that their Lordships, sitting
as a Court of Error, when they found that a person had
been convicted illegally of nine out of ten offences, and
had been sentenced to an imprisonment for_ years, and
a fine amounting to half his fortune, not_for the offence
of which he had been legally convicted, but of that of
which he had been illegally convicted—were their
Lordships bound by this principle of presumptive act, so
contrary to truth and justice, as to say "You must suffer
this punishment, and you must pay this fine, although if
you had been brought up for judgment :for "the offence
of which you had been legally convicted, you would
have had no such punishment • inflicted upon you." If
they felt themselves compelled to affirm this doctrine—
if there was an Act of Parliament which gave them no
discretion— if there was a solemn decision of that House
on the point on a writ of error, undoubtedly their Lord-
ships must be bound by that decision, and the defend-
ants must submit. But he trusted if such- were the case,
that even the short remainder of the session would not
be allowed to pass away without the introduction of a
Bill to alter the law. But there was no authority—no
Act of Parliament—no decision of' that house, or
of a court of law, laying down that a writ of error
brought up on several misdemeanors, if there were one
good count that would be sufficient► and the sentence
would be affirmed. If there were such, it had eluded
the search of himself and friends. In eases in which
motions were made in arrestof judgment in civil actions,
where general damages had been given,- the court was
compelled to arrest the judgment if one count was bad.
As in a civil case it was impossible for the court to say
how much the damages the jury awarded-upon the count
which was bad, and how much upon that which was
good, the court would reverse the judgment altogether,
and send back the case to another jury, that they might
apportion the damages; and their Lordships- would find
that this principle of law, which was perfectly sound
when applied to civil cases was equally applicable
to criminal cases for several offences with one sen-
tence upon a writ of error. In civil cases the
court could not determine how much of the
sum the jury awarded upon a count that was bad,
where there was a conviction for two misdemeanors with
one sentence for two years' imprisonment, and a fine of
2,000/., the Court of Error had no power to determine
how much of the two years' imprisonment the Court
below awarded upon the count that was bad, and how
much upon the count that was good, nor how much of
the fine was awarded on the bad count, nor how much on
the good count. The punishment was discretionary, and
it might be that upon the count which was good a pu-
nishment of a month's imprisonment, and a fine of 1001.
might be awarded, whilst upon the other count that was
bad, a punishment of twenty-three months' imprisonment
and a fine of 1,900/. might have been awarded, and the
Court not only had no power to determine in what pro-
portions the punishment was awarded, but they had no
power to apportion it themselves, because they did not
sit there for that purpose, and, therefore, upon a writ of
error for several misdemeanors, where one discretionary
sentence was imposed, the Court of Error was precisely
in the same situation as either the Court below, or the
Court of Error above, in the case of a verdict by a
jury on several counts giving one sum as damages, and
therefore the Court had no power except to reverse
the judgment altogether. In the cases to which he had
referred, the cases for example of " Peaker v. Oldham,"
and " Grant v. Aschatn," the judges reversed the judg-
ment in toto, because they declared themselves unable to
apportion the damages, and therefore the cases were
sent back for another trial. But the judges were found
to have made some such observations as those—" but it
was otherwise in criminal cases, because," and he prayed
their Lordships to attend to the reason given, because it
would determine the principle on which they acted—
" because," they said, " the court there could apportion
judgment—the court there could pronounce what it
thought fit, if there was one good count in the indict-
ment." Lord Mansfield said, "We must reverse the
judgment altogether, because we cannot apportion the
damages, which would be to assume the functions of a
jury; but it is otherwise in a criminal case, if we find
even one good count; and why, because we aro the jury
there, and we impose the punishment. Provided there
be one good count in the indictment we need.not reverse
the judgment, because we have it in our power to award
punishment, and we Will award it according: to what is
Just and right, on one count, provided it be good." They
found the judges using such expressions -where the
general principle of the law was adverted to, and no
doubt it was perfectly sound doctrine upon motion on
arrest of judgment, for there the court had it in its
power to apportion the punishment according as the
counts were good or bad; but upon a writ of error
the Court of Error was in a different situation.
If their Lordships, in all cases where there had been a
prosecution for misdemeanour, though there might be a
hundred counts, were in a situation to say that although
there was a general count the party had been convicted
of but one offence, then the doctrine applied as well, in
point of reason and justice, to writs of error as to motions
in arrest. The court of error might say, " Although we
know this, all these are charged as „several offences, yet,
by universal and invariable practice, a party cannot be
convicted of more than one offence ; therefore, we will
not, upon the substantial justice of the case, and, although
the offences are laid as several in point of form, yet, as
we know there can be but one offence in point of sub-
stance and truth, we will not refuse judgment if we find
one count good and valid in law." But the fact or truth
of the case was otherwise, and rendered the doctrine
altogether inapplieble to writs of error. It was custo-
mary in all kinds of criminal proceedings for misdemea-
nour ; but in cases of conspiracy it was usual to include
two, three, or more, of the distinct and several
offences in one indictment. One of their Lordships,
Lord Chief Justice Tindal, would remember a very im-
portant case which had been tried before them within
the past week. In that case, though there was a great
multiplicity of counts, three perfectly distinct conspira-
cies were charged under one indictment. One was a
conspiracy to defraud a man of property by procuring a
foreign legislature to pass an Act to annul a con-
tract ; another was to turn a man out property of which
he was lessee, and which, if ever it existed, could not
have been formed till two years after the first was com-
plete ; the third was to destroy a man's credit as a mer-
chant Now, if it had happened that, instead of the
charges being groundless they had been well proved,
there would have been a conviction on the whole

indictment. Now, if upon such un indict
ment as that—it was quite immaterial of how man,
counts it consisted—the defendants had been convicted
of three totally different and distinct offences, and had
then gone before the Court of Queen's Bench to receive
' judgment, and had made a motion in arrest of judgment,'"
their Lordships would then find a precise application co
this principle to the one case of an arrest of judgment'
and to no other. If he had succeeded in satisfying 107
court that the count of conspiracy to injure a man!
credit as a merchant was ill-laid and bad in law, and
and that the count for turning the man out of his PO•
perty was ill-laid and bad in law, but that the count re*
lating to the foreign legislature was good and valid itt-
law, what would have been the conduct of the Queen,'
Bench ? Why, they would have passed sentence upce
the one good count, and have said nothing as to the,
others ; whereas they would have passed a sentence et
three years' imprisonment if the three offences had beep
proved, they would have passed a sentence of one years
imprisonment for the offence of which the party h"'"
been duly convicted. Justice would then have beep
done, and the motion to arrest judgment would not have
prevailed, because one of the counts had been held to be
bad. But now he would suppose the same case in!'
a writ of error. In a case which he would.'
put in which two sets of counts were bait',
and in which the court passed sentence upon the gee"
one, it would be the duty of those who made up the re'
cord to enter judgment upon the good count, and to elite
no judgment at all upon the bad counts. But if, inetealfl
of that, judgment were entered upon the record as
sentence had been passed for the three distinct offence6
how would the doctrine then apply ? .If their Lord:
ships looked at the authorities, they would find notbiet
whatever to warrant the statement that although °I!
good count would support an indictment on a motion..
arrest jndgment, the same doctrine had ever preesio':,
upon argument in a court of error. It was in its aPPli-
catien that the error existed, and not in the dictum itself,
which was just and right when properly applied. The
dictum in the King v. Ingram was perfectly correct"'
applied to an arrest of judgment ; but altbgether incer;
rect as applied to a writ of error. The ease of the 10°E;
v. Fuller was a case of reference to the judges OP.:
point reserved at the Old Bailey ; and the object
not to reverse a judgment, but to :submit to the cotlPc
whether the parties should be pardoned, or the judgsnee
stand as it did. The last case, that of the King v.Vintit'
established the principle for which he (Mr. Kelly) 00'1.
tended Lord Mansfield there said .that the jUdgint
should not be arrested by reason of one or more of t_.,°"
counts being bad. But he gave this express reason tel
it, that the court might lessen the punishment if the
count were had. Why, he besought their Lordships to
consider the effect of that doctrine falling from...loPrt
Mansfield. In that case the Court will not arrest the
judgment, but will lessen the punishment. These Well
all the cases that had been confirmed, and the questiell
was, whether anything in these cases, or any others'
ruled that the principle so soundly applicable to snoti°;
in arrest of judgment applied also to writs of error.
had pointed Out hypothetically the strange and increTA.
ble results that would be caused, if this doctrine shell°
prevail ; it would cause the most frightful injusti°°'
Parties might suffer an imprisonment of yew
and sustain perhaps the loss of a fortune under
the false contents of an indictment for one ver!!A
offence. When these consequences were submit
to their Lordships, he contended they must pause bete";
they produced them, unless there was some grand °Ott
ruling authority or decision which should be binding °s
that House. But he entreated their Lordships to re;
member that the House, sitting as a superior court
error, was called on, for the first time, to lay down theb
doctrine, the effect of which would be to inflict 5,0
cruel injustice. Before he passed from this point ilea
gether, he .must observe that it was not to be wonder
at that the authorities should be so few _on 0011.
point. From the mode in which the
law in this country was administered, it must ea%
occur to the minds of their Lordships that wria
of error on charges of misdemeanour must he :le
very rare occurrence. With regard to cases of mild •
meanour at the assizes, in ninety-nine cases out ofle
hundred the persons indicted were of a station in G 1
that deprived them of the means of bringing a "alto(
error ; and with respect to the whole of this Osseo
persons, if a point was reserved, it was generally sett!
and determined by the judges.
Lord BR Cee°
BROUGHAM reminded Mr, Kelly that this As
decided on points of law laid down by the practice of net
courts of law and equity at 'Westminster, without •e‘
coming to the House of Lords.
la 10
Mr. KELLY—Certainly. But in this case it should if
made out what had been the practice in writs of elc,
It was vain to expect that there should be many Olio
rities on this point. In trials for misdemeanor, 15"„ o's
were removed by certiorari into the Court of (Pe'
h
.
Bench, . the public were generally! satisfied with t-, the
decisions of that Court, and - on looking throng"' rot
books he scarcely found so 'many as four writs of el; of
or misdemeanour during the last century, nor in er'iteas
them was, there anything like a decision in which iteco-.
distinctly held in argument that where there was °teed
viction for several different misdemeanours oneolght.
count was enough to support the indictment. .irnt the
be argued that when the judgment was given '-isteatt'
several offences aforesaid," this might be taken to
.i.rere
the several offences that were well laid. • But if it f the
doubtful that the judgment was passed in respect°, the
several offences well laid, still he apprehended t alsitaet
judgment must be bad for ambiguity. In orderW°3 who;
the sentence it must appear distinctly on the' recorti, hop
the offence or offences were for which sentence hao r
passed. If, therefore, the record left-it doulitfuT whe
is was for the offences, well or ill laid, that was sufficl!bPo
to vitiate the judgment. But he contended that toe
words " offences aforesaid" must refer to their last afeti
cedent. And in pages 78 and 79 the finding 'gaoled.,
the counts against the several defendants, and then inireit
diately afterwards found Daniel O'Connell guilty °OOl
the several offences, including all the counts, both goo
and bad. Now he would suppose, in order to seee if;
meaning of these terms " several offences"—suPP°6 00e
an indictment there were two counts—one alleglngo
offence, and the other another ; supposing there
verdict of guilty on each, and then judgment•waceti
flounced against the party, that he should-be insPri-6°o
twelve months for the several offences; supposing uP°lsi.
writ of error it was found that one count was bad illfroe
and the other good, so that there remained but one ene of
well laid in point of law, what •would he the meaniegthe
judgment for the several offences ? It must mean ios
several offences whether well or ill charged in the he
dictment. In the present ease one meaning oluseb"ere
given to several offence's, whereas in cases where ost
are only two counts other and different meanings °lot
be given to those words. Where they found seT"s
offences charged in an indictment, and they must 5(:,0
pose them to be legally charged, the only meaning fli„500
to the term " several offences" must be one offence.
these grounds he would submit that if there wasoot
count bad the judgment must be reversed. The pre dos
conviction was for several misdemeanours, and th,e, yeti
fondants had appealed to their Lordships to be relieved,
from offences of which they had been illegally cool.; re
If their Lordships did not affirm this doctrine anuest
verse this judgment, the consequence would be that,th
Lordships would be maintaining and perpetuattn_tios
punishment, not in respect of offences of which pi eat
had been legally convicted, but continuing punishl?,cos
for offences of which the parties were not legally
ar-
victed, and that too upon the' presumption that tneTi,,,,,
ties had been convicted upon the good counts.
court of error could not assume the jurtdiction of
e;.O
propropriating the offences upon which the parties to
suffering punishment ? The only course left °read
their Lordships was either to affirm or reverse tbeituhee
ment below. If the court reversed the judgment the
the case must be sent to another tribunal, where ,ere
case must be tried over again, and if the parties °the
found guilty they must be punished according t°., to
crimes they had committed. He would now subrapeot
their Lordships that there was at least one bad eti„ort,
in the indictment. He contended, for his own rep%
that every count in the indictment was bad ; but hands'
been preceded by several of his Learned Friend
and particularly by Sir T. Wilde, who had caul
their Lordships' attention to all the counts, he '4l°, be
only trouble the House with two of the counts whie,"bol
contended were bad in the face of them, because theAlcse
not charged any offence with legal certainty. 'ci%th
two counts were the sixth and the eighth. The
.;
related to the exhibition of physical force, anuther
eighth to the transfering of other legal matters to ° too
tribunals. With respect to. the sixth. count it Ny"scoe'
general. It'showed no legal offence. In order to. ees
stitute the legal offence of conspiracy, it must hews,
pressly alleged that the conspiring. was for seine °lot be
ful object ; and if for arc unlawful object, it I°, eet
shown to be such, and not merely called so. It "a-ired
sufficient to allege that persons had unlawfully ce°3Proost
by unlawful means to do an unlawful act. But it srilf
be shown that the means were such as were nece°:o4l,9
unlawful, or that the end and object must be neeetoely"
unlawful. This 6th count, when considered well, "„ten;
be found to amount to this : that eight persons —ilea
tioned, unlawfully, maliciously, and so forth, consrod
and confederated to cause and procure, and aided f tll9,
assisted in causing and procuring, divers subjects °I pea
Queen to assemble in large numbers for the utitvi°4oo
seditious purpose of changing the laws and constn.iicetl
of the realm. The first part charges that they c°l:l,9,rvor
to procure a large assembly of persons for a certain -"esss
pose. Now to procure a large assembly of persot
not illegal ; it must be shown that the a,sseinhusere
illegal, or that the purposes for which they that
met was so. Then the count went on to sob'
they caused them to assemble for an unlawful andc the
tious purpose. Now, if the count stood there li-°"tatedf
count was clearly bad. Here the purpose weeti°oo fit
and therefore upon that count the only cluesa to be
their Lordships was, whether the purpose state"Aearif
unlawful and seditious was upon that statement
_cal to
shown to be either one or the other? A consPl_rot
procure changes in the Constitution was clearly i, 030"
Wt.
gal. Could it be' said that the parties who win'
Relent' the
sures to procure the union of Scotland and iv
England, which would affect a great alteratiolid
law, were guilty of an illegal conspiracy? or c°,."-_`
said that the conspiring to procure the Catholic
~suec.7
effected great changes, had committed au
,_w 0
Bill, or the Reform Bill, both of whit:hill:3oer 0;0e
The endeavour to procure a change in the 'as laid be
legal object. Let them consider if what
was
t°
the count was necessarily unlawful, or if it were
reaps
brought about by necessarily unlawful means. 'l°'_ Of t;
were intimidation, caused by assembling meeti_niegeottoi
people. Who was to be intimidated? Wss it
merit or the Sovereign? That might or might not ° erfeetY,
Or was it any other person whom it might h 4, de_
legal te intimidate? So with regard to the wo;_ted ea_
monstration of physical force,' it was not ~,:afrooa
whom that was to operate. The count wei! "charge_
uncertainty. It ought to have been distinctly IY„.010
tb
whom it was that was to be intimidated-0
demonstration of physical force was to opera_Tioefes
less they could establish the proposition tca,"o„iy, or
legal to assemble a meeting to intimidate anyoe ariyhoos
operate by a demonstration of physical force u