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

THE STATE TRIALS.

(FOURTH DAY.)

WRIT OF ERROR.

HOUSE OF LORDS.-(THIS DAY.)

THE QUEEN AGAINST O'CONNELL AND OTHERS.

Their Lordships met this morning at ten o'clock, 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 charac:er, be a presumption contrary to the
known truth, opposed to all legal principles, 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 cases, which might bo imagined, to
the most frightful degree of injustice. It
would be found to amount 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 danitiges they could not do in a criminal case, though
satisfied that the parties before them are suffering punish-
ment for several offences, of all but one of which they
had been illegally convicted. This was a proposition so
strikingly unjust and unreasonable in itself, that he felt
satisfied that when he should have called their Lord-
ships' attention to the consequences which in a great
many cases must result if this were declared by their
Lordships' House to be law, 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 time 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 applied to cases 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 in the several
counts 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 con-
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 all
criminal courts to impose a much severer punishment on
those convicted of several offences, than if they had been
convicted only of one? And this was especially necet nary
in cases of political conspiracy. If the case were of
some one misdemeanour which was undoubtedly felo-
nious—although, if strictly examined, the legal principle
of the proposition could not be maintained even in a case
of felony—still, they found that it was the practice to
indict the same persons in a prosecution for several mis-
demeanours, and if a person were convicted of one mis-
demeanour only punishment would be light and venial.
If two or mere 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 convicted of the graver of-
fences, but lawfully convicted of the ligtiter 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 offences in which a heavy
punishment was awarded ? In troubling their Lordships
with some illustrations of this principle, he would refer
to two or three cases by no means imaginary, or beyond
the bounds of possibility, by which they would not only
see enough to prove that the doctrine would be produc-
tive of most grievous injustice, but would give rise to a
system of absurdity and falsehood in the very judges,
the high ministers of justice themselves, if they hap-
pened to sit as judges in a court of error in a prosecution
of this kind. Take the simple case of a number of per-
sons indicted for two conspiracies. Two men, needy
and hungry, may agree to go into the next baker's shop
and steal a loaf to satisfy the cravings of their appetites.
That is a conspiracy to commit a felony, and they might
be indicted for it. But 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 convicted, and a motion may
be made in the court where they were tried in arrest of
judgment. It might be argued that both the counts were
bad, and the court might be of opinion that they were both
geod,and proceed to pass sentence upon them. 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 case there would be the most lenient
sentence which the lawpermitted, while the very heaviest
that could be passed would be inflicted on the other. If
judgment were passed for the severest sentence, and a
writ of error was brought before this House, and this
House should hold that the count charging the conspi-
racy to rob and murder was bad in law, and could not
be maintained, but that the count for the conspiracy to
take the loaf was a good one, upon the doctrine 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 them the
severest sentence which the law allowed, though every
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' imprisonment they might have suffered under
their sentence might be an ample punishment for the
offence of which they had been legally convicted ; yet
they were 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 count a bad one, and might give
sentence on the bad count; if it then came to a court of
error would that judgment be supported ?
Mr. 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 or even improbable cases ,• let them look back
but for a few years to the history of their own times, and
see if cases had not actually occurred in which parties
had been indicted for a great many misdemeanours of
such varied character that a conviction on one might be
followed by a fine of a shilling, and a conviction on all
by the heaviest sentence the Court could pronounce.
They were here on a case of political conspiracy charged
against a number of persons having one ultimate object,
which was in itself perfectly lawful, 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. He would
not illustrate the case by anything that had oc-
curred in this very cause, because he would rather re-
frain from going out of the record. But let
their Lordships look back to what had occurred two or
three years since when a contest raged throughout this
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. Fergus
O'Connor, who was tried before Mr. Baron Rolfe, dis-
closed as many different degrees of guilt as it was pos-
sible to conceive. The collecting of persons in public-
houses, up to the proceedings of Frost and his associates
to commit murder and treason. Now if that proceeding
had taken place in the !North of England instead of
Wales, according to the principles laid down on the other
side, they must have been tried altogether. There must
then have—been a conviction upon several counts for
several misdemeanours. Was he driven to ask the
question whether upon an indictment like that where a
trivial offence was charged in the first count, and the
other counts increasing the offence in a mostmaterial de-
gree—increasing till it came to murder—was it to be said
that they were all to be 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 case coming before
them, had held that the ten counts were good in law,
could any one doubt that the Court would pass a severer
sentence for the offences contained in the ten counts,
than if the Court had held that the nine counts were
bad, and the first only good? He would suppose that
nine counts were bad. Had the subject his writ of error,
or was he altogether without remedy ? Here were men
suffering the severest sentence of the law—they are ad-
vised that they were illegally convicted, yet the law
affords 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 argu-
ments, and come to the conclusion that the counts were
good, and had participated in the judgment on the par-
ties, on the ground that they bad been guilty of ten
crimes instead of one—yet that Noble Lord could sit in
that House on a writ of error from his own judgment.
Then, upon the writ of error in that House, the vali- ,
dity of the whole ten counts is argued, and upon re-con •
sideration the Lord Chief Justice, and the other mem-