The Sun.
London, England, 1844-09-04 00:00:00

os,
The
distin•
, "eY must assume, unless the contrary, ws
that etl3' shown, that what the judges had done in
acctres was to enter up judgment on the good
aii4o lcount. Upon a writ of error they were not
They to conjecture or decide upon probability.
,11013" must look to the record, and unless the record
toirie.adtionrigthe face of it a manifest error in the aps
of punishment they could not reverse the
)sdgraent• That was said by one of the learned
ancig,es who was in favour of arresting the judgment,
143 ')37 consulting the terms in which the judgment
too Pronounced, they would find that the judges
meat this into their consideration when judg-
fore, was pronounced. They should not, there-
sleet ran the hazard of reversing a judg-
take 'upon a point which it appeared was
1414 into consideration by the judges when judg-
theeovras pronounced ; and, independently of this, let
thee look to the record itself, and see whether in the
take it there was any ground for the objection
NC Every record must be construed according to
retorgal operation. They could not go out of the
rsentcis Now, what was the judgment? The judg-
part; In this case was, that the court adjudged the
11,4'es for their offence aforesaid to be fined and ims
eord°!lecl• There were two of the counts defective ac-
heeling to the unanimous opinion of the judges,
eoastllse they charged no offence. Could they then,
ruingthe the record according to the language of
the record and the legal interpretation of it, when
the Judgment
of the judgment were for offences, say that
th'imgnlent applied to those counts which bore on
that lee of them no, offence whatever ? He would say
sire wnsas inconsistent and incongruous, and he was
sttee;i'elr Lordships would not sanction such a
see con-
sosit°n• The Learned Baron who was in the mi-
aes 3' med to feel the force of that, and gave no
sfiwter to it. But he attempted to obviate the force
err° hY referring to the other counts which were not
Iverne°lls in themselves, but on which the findings
It via defective, and the entering of them erroneous.
esseas the unanimous opinion of the judges, and he
of shined with them in that respect, that the findings
weselJarY, which could not:be sustained, and which
eosaireneoua, were altogether null and void. He
and"ered that such findings were no findings at all,
to that a good count upon which there was
eotthfs4ing was the same thing as a bad
It‘i„-- On which there was a good finding.
the as a mere nullity—it was not for the offence upon
sdsreeerd, but upon the finding of guilty. Now, he
ePted the opinion of the judges that the findings were
at all, Ruled the and,
therefore, that there were no findings
come Such were the conclusions to which he had
Ras on on the record. He was of opinion, if the record
ess6Pir,erly construed, it would be considered as
,aid.-11 Ting an award of judgment which was properly
itself the present case, on the face of the record
opin he considered there were no defects, and in that
loges he was supported by the authorities of the first
of the land. Now, what were the authorities?
b'o"the first was the case of the King v. Powell.
h,„"ere the judges who presided on that occasion ?
Taas', Snell men as Lord Tenterden, Mr. Justice
kentln, and Mr. Justice Patteson. Now, the judg-
(leol iv'at had been given in that case he considered
,s.4ladssLa Upon the present one. Another case that
•that—"ll referred to was that of the King v. Rolls.
tislinfwas the case of an information for the suborna-
1t one Perjury, and in that case it was decided that
gidgm assignment was good it would support the
of ei shy nt, and it could not be invalidated on a writ
Ras The third case that had been referred to
court at of the Queen v. Ingram, and in that case the
ncipeided that the judgment was good if there
til t'Y a sufficient count to sustain it. But then
sse
t,ilese,wiere another class of cases upon writs of error
'ed then, to which he would now refer, and which
Ivers aline same conclusion. It was said that there
efiikrstinctions between cases in error and in arrest
114 eng; nl, ent —he could not see that ; and in support of
'itlir`a„,'°ll he might advert to the case of the King v.
reose,,that case was an indictment for obtaining
tete,'" under false pretences; the judgment was en-
!hat bli„? and a writ of error was brought, and upon
'144 s'lng argued by Mr. Fielding, whom many of
the vv,,44ordships as well as himself could remember,
jecterptt of error was dismissed, and the two counts ob-
,ei a ,T were declared to be valid. Such was the decision
'lllstili",,Ten as Lord Kenyon and Mr. Justice Buller.
that
and Learned Lord then referred to the oh-
"lat nofMr. Baron Parke on this case, and observed
vilest e Learned Baron said thejudgment was a judg-
dl)3, the transportation, which could only be supported
dinar"w° counts. Now that was a most extraor-
41tIlii, answer, for it made an additional objection.
Were ptwas a general judgment, and all the counts
"vo er,s and the judgment would apply only to
nd ',lie counts, then, according to the principles
,ueet,e;"e.ta for, that judgment would be erroneous,
`ao 't was a general judgment sustained only by
Rivene(!ants. That was the answer attempted to b
Onl So that there was an additional objection, not
eotint:",,ere the counts were defective, but even if the
Psin-i° 'lad been good the judgment, according to the
isehNde in uestion would be an erroneous
4 becauseq it was, sustained only by two of the
Therefore, he apprehended that that
fa a strong and almost decisive authority in
Iv: lir of the present judgment. But there
the another authority, which occurred about
hi_satne time, not quite so stringent an authority, but
140? exactly in the same direction. It occurred, he
themFl,d, the year before. He alluded to the case of
it w King v. Mason." There was a good count, and
ovens contended, and the count admitted, to be defec-
Ilesea 13Y whom was that case argued? By R gen-
-lasi„ri whom they all remembered—a most acute
Ritter, conversant with every technicality connected
Did Aine profession—he alluded to Mr. Marryat.
could Marryat make the objection that this count
adositi nl4 be sustained ? There was a bad count
No ed to be bad, and this was a general judgment.
411:'t4 thin Instead of doing that, he confined
Did Mt to g.
that
4„ labouring the invalidity of the special count.
`eat sii"‘ that show what his opinion was ? Did not
Zesisist(,)w also what was the opinion of the court,
ad alof the distinguished individuals to whom he
'etesa;eadY referred ? If not, would they not have
Poie'"td and said, " Why do you labour this
to b Marryat, there is one count admitted
,4141u7 and therefore the judgment cannot be sus-
or d There was another authority in the time of
l'essj'idon, the case of Hill, referred to by the
at %set' Baron, That was the case of a person tried
*lee; assizes for obtaining money under false pre-
The indictment contained several counts.
geertY was found guilty ; he was sentenced, and
as to ;,,ral judgment was pronounced. The question
totaii''e sufficiency of the counts came under the
argn'eration of all the judges. As the result of the
tetistlafent, one of the counts was decided to be bad :
mPoti-: in that case there was :a general judgment
e'er was
record, consisting of several counts, one of
'eerefvfas admitted to be bad. A writ of error,
111"'e, under such circumstances would, according
Jads.'s doctrine, have prevailed. What ought the
tielM to have done after they had decided the ques-
taatt According to this doctrine they ought, as a
%terer of course, to have recommended the
thing u" a pardon. Did they do so ? No such
hit
ati • The judgment was carried into effect.
Zosse he not then made out, by a host of
he e sPending authorities, the position for which
sipie°ntencled ? He said it depended on prin-
* kes'tnd that the record in this case was sufficient,
Ilip,""ng to the legal authorities. The principle was
4re's'r rted by the host of authorities to which he had
the Court by Lord Mansfield, in the first instance, in
of King's Bench, by the subsequent autho-
the fiat an earlier period than Lord Mansfield, in
sent the e of Lord Ilolt, and brought down to the pre-
elipone• No such objection was ever made, though
esen''unities for making the objection had constantly
Dosit,red• Therefore it 'was perfectly clear that his
essilc'n was correct. Though the point had never
all,' expressly for opinion before the judges, it had
14448 been considered free from doubt—an estab-
P°int of law. Difficulties had been urged, to
d'leLLy haill.e should for a moment refer. One was the
pa rt. arising from a pardon—a pardon as to a
sas, was not at all necessary for him
Causes ? single word upon that subject, be-
%aid th l the judges, even the dissenting judges,
ist,nt ere
'as nothing in that agument. The argu-
w
kj,rai ow_ equally apply to an indictment upon
,sTjoet; e°llnts, where such of the counts was free from
hat tts-". It proved, therefore, too much, and on
whieh-collat it had no validity. Another difficulty
which had been insisted upon was the difficulty in
Party would be placed on pleading autrefois
rota he ghat had received a satisfactory answer
;
`t• e learned judges; there was no foundation for
Was on all cases of pleas of that kind the question
tvidee-! °f identity of error. It was a question of
s
4elieti'e• The question was whether the corpus
nix% which the party had been convicted, was
That vetl which the judgment could be affirmed.
,%irletiwea e,s a difficulty which could only be settled by
whichand the objection was not one, therefore,
hacf°uld prevail on the present occasion. Now,
u
eisies been said that there was no express de-
ease°ll the subject. A word as to that. If
gthat ao were so clear, so free from doubt,
entertaienan, either barrister, attorney, or judge, even
point heed any scruples with respect to it—if the
and ree-: been uniformly and constantly acted upon
„
d -•-gn'sad, was it to be said, because there was
t° betthl" upon the point, that therefore it was not
ittLtca'tee:ri„ nsidered as the law of the land ? Why, the
``'e led ts, this conclusion, that the more clear
fain , the more free from doubt, the more uncer-
that, would be. It was usage, practice, recognition,
the 40evolistituted. the law of this country. Many of
acktow7ir,les and opinions which were a part of the
°Nile edged law of the land, were doctrines and
Vain .43 with respect to which they would look in
he " tor an
ree direct decision. The practice, the usage,
islishi.,°snition, were considered as precedents esta-
Nslainit,ig the law, and this was the foundation on
Zt
w" tile common law of was based. ,as ad • ,
Mated in this case this
coun
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 Lord Chief Jus-
tice of the Court of Common Pleas, at their head, pro-
nouncing a clear, a distinct and decided opinion, nothing
but a 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 lie 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
was nct 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." He
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 Ac tof 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 constantly 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 I
pointed out for a defect of this kind, which had been
alluded to. He was satisfied that it was not. He
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 al 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 oon-
sistent with the provisions 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 ot
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 had 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.
He 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 exteusive 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 been 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
was fixed by law and one in which the punish-

ment was left to the discretion of the judge.
The other judges all concurred in the opinion that
such was the practice. They all concurred in opinion
that a sentence passed in this manner could not be
taken to be a sentence passed upon the aggregate of
the counts, but must be considered as one sentence.
Mr. Justice Patteson stated that he believed this was
the first time such a point had ever been mooted.
There was but one universally received opinion in
favour of the assumption that one good count was
sufficient to sustain a judgment. Even Mr. Baron
Parke himself did not dispute that point—he in ex-
press terms admitted it. He said that ever since the
commencement of his professional life the distinction
between criminal and civil cases had been well esta-
blished, and it was with surprise that he had heard it
disputed at their Lordships' bar for the first time in
his life. The Learned Baron did not doubt as to the
existence of the rule, but lie doubted whether it had
not been carried too far—whether conclusions had net
been drawn from the dicta of various learned judges
which went much further than could be supported by
those dicta. But all the judges, with two exceptions,
held that the rule declared the law correctly. Mr.
Baron Parke was the only one who at any length
entered into the objections. But the Learned Baron
stated that he had founded his opinion with much
hesitation, and expressed great doubts rather than
any decided opinion. No less than eight times had
that Learned Baron expressed his doubts. He said he
must pause—he doubted if he could answer those
questions in the affirmative, and he concluded by
stating, according to the opinion which he had de-
livered viva voce in their Lordships' House, and which
differed in that respect from the written opinion, that
he doubted whether he ought to advise their Lord-
ships to affirm the judgment—an incorrect expres-
sion, as the judges were then to communicate infor-
mation to their Lordships, and not to give them advice.
Those doubts, however, were not expressed by any of
the other learned judges in giving their opinions, and
that fact certainly entitled those opinions to greater
weight, while the great doubt expressed by the
Learned Baron tended to diminish the weight to be
attached to his authority. It had been universally
held by all the learned judges that the sixth and seventh
counts were invalid. Now, he - (Lord Brougham)
felt the greatest reluctance to differ from those
learned persons, but he must say that
the argument of the Learned Lord Chief Justice on
that point had failed to satisfy him that the offence
had not been set forth with sufficient certainty in
those two counts ; perhaps he ought to say that he
felt so doubtful on the point that he was unable to
agree. The Latin word for fear, or causing to fear,
was sufficiently clear and precise, and he thought the
object alleged showed with sufficient precision on
whom the intimidation was to be exercised. That
object was to procure a change in the laws. Now,
that change must be produced either by means of
the Parliament, or in opposition to the Parliament. If
it were to be brought about by means of the Parlia-
ment, then it was clear that it was the Parliament which
was not to be intimidated. If the change was to be
brought about in opposition to the Parliament, then
that was in itself an offence ; but when he considered
how much greater was the experience of those learned
judges in criminal jurisprudence than was his own,
he was bound to suppose that he was wrong,
and that they were not wrong, and he could
not set up his inexperienced judgment against
their experienced ones; and so with regard to the
third and eleventh counts. If he were inclined
to doubt with the Learned Baron, seeing
there were seven judges of a contrary
opinion, he should have no confidence in
his own doubts ; and if he were called to consider
the doubts of the Learned Baron himself, he shculd
have still less confidence in setting up his doubtful
opinion against the clear and unhesitating opinions of
the other learned judges. But it was immaterial what
might be his opinion with regard to the 6th and 7th
counts, because the same points would be raised on
the finding of the jury on the four first counts,
which were admitted to be bad ; and it was clear that
a bad finding on a good count was equally incapable
of supporting the judgment as a good finding on a
had count. Therefore the point was equally raised
by the finding on these counts being bad, as by the
6th and 7th counts being bad. He came now to the
only point on which there was any difference among
the judges—namely, the 3d and 11th questions. He
had already stated the difficulty which he should have
in differing from the clear and unhesitating opinion
expressed by a large proportion of the learned
judges, but his opinion went entirely along with
theirs. The first thing that struck him was, that the
universal opinion of all the judges admitted that such
was the rule. Mr. Baron Parke himself expressed
his surprise at hearing the contrary stated; not
merely was the opinion against the objections urged,
but the practice had always been conformable to that
opinion. Could anything be more desirable than that
such practice should be upheld ? It was an appalling
course which they were called on to adopt when they
were desired to decide that in all those cases without
number in which verdicts had been returned upon
several counts, one of which was bad, and in which
sentences had been passed and executed, that every-
one of these judgments would have been reversed if
they had been brought before their Lordships by a
writ of error. It would be with insuperable reluct-
ance that he should come to such a decision. Ile must
see clearly that all that had been done before had
been done in error, before he could pronounce a judg-
ment of reversal. No mere doubt, however grave,
would justify such a step, and when he found that the
large majority of the judges were of opinion that the
universally received doctrine was correct, he could
not doubt but that such was the practice of ages to
the uncontradicted law of the land. But it was said
that this doctrine must be received with qualifications,
that the case was a new one and had never been
decided on argument. He would ask how much of
the known and admitted law of the country would be
struck out, were all struck out on which no decision
had been formally pronounced? Might they not
say that that doctrine had no decision to
support it because it had never been denied.
The present opinion had never even been brought into
doubt. But it was said again that if the objection
had been raised, it could not have been met. But to
that his answer was, that this supposition had no
weight ; for, if the objection had been raised, the
majority of the court before whom it would have been
raised had heard it already argued, and it had been
by them disposed of. Therefore, he did not state
it as a possibility, but as a fact absolutely and un-
questionably true, that if the objection had been
taken and argued in the court below upon the pre-
sent case, it would have been overruled ; and the re-
mark with which he was now dealing, would, as an
objection, be displaced. But the objection was really
of no amount, for it was the duty of the court, in
passing its judgment, to bear in mind those counts
to which there were so many and such potent ob-
jections..., But it was said that these arguments applied
to decisions on motions for arrest of judgment only,
and that these were not of the same weight as the
authorities upon writs of error. He answered—
first, that some of the cases which had been
quoted were on writs of error, and not on
motions in arrest of judgment; and, secondly,
he did not go with those who gave no weight
to the decisions on motions for arrest of judgment.
He held that those latter decisions very strongly and
clearly showed that the courts would have given the
same judgment if the cases had come before them
upon writs of error. His reason was this—that he
held that nothing could be more absurd and inconsis-
tent than for the courts to have taken that course which
they would have taken if the distinction now pressed
were admitted. For to what would it amount but
this—that the court, in motions in arrest of judgment,
had said "we will not arrest a judgment, hut pro-
nounce it, although it will be nought, and when we
sit on the other side of the wall in the Court of
Exchequer Chamber, we will reverse it." The deci-
sion was not to declare some counts bad, and then to
enter up judgment on the counts which are good.
This was not the course in this case, or in any of
those which were cited. The course which was
adopted was to enter the judgment generally, the
effect of which was to keep the judgment on all the
counts, the arrest being useless, as there were good
counts on which the judgment could be given equally
as on the bad ones. Therefore, the judgment was
upon all the counts—on each rather than on all—on
each severally rather than upon all conjointly. The
court must have held that the judgment could not be
reversed in error, else they must have granted the
motion and confined their judgment to the good
counts. It was absurd to suppose that the same
court sitting in error would not affirm the same judg-
ment which, when sitting in arrest of judgment,
they had affirmed. The court had never said that
all the counts were good; but when it was
argued that some of the counts were bad, the
court said, "Be it so; but there are counts
which are good as well as bad counts, and let the
judgment stand on the good." Let their Lordship
listen to what the state of the law was. The defen
dents had only to bring the writ of error the moment
the judgment was entered, for there was no decision as
to which were the good counts, and which the bad, for
the writ of error, if brought, must be delivered. But
the fact was, no writ of error was brought in any of
these cases but the present; and what could be more
manifest than that in those cases such was the opinions
of the parties themselves and their counsel. It should
not be forgotten that this view was supported by the
venerable authority of Chief Justice Eyre and Lord
Mansfield. But, on the other side, no opinion, even
of a text-writer, had been brought forward to support
the opinion, or rather the doubt, of the Learned
Baron ; but the Learned Baron admitted that the au-
thorities, so far as they went, were against him. But
the Learned Baron quoted no authority, no dictum of
a judge, nor either of a text-writer. In referring to
Lord Mansfield's dictum, not decision, he (Lord
Brougham) must observe that there might be
a question on which that eminent judge was

right in expressing his doubt of the law
in civil cases ; for as long as juries gave
their verdicts as at present, he (Lord Brougham)
did not see how it could be otherwise. But in criminal
cases the law was clear from any doubt. The cases
decided, whether in arrest of judgment or in writs of
error, naturally deserved more weight than these
dicta. He thought the attempt had not been success-
ful to show a distinction between decisions in arrest
of judgment and in error. In the case of thd King
v. Mason (2d Term Reports), which was tried in the
King's Bench, there were 6 counts and 2 were clearly
bad, yet it was ruled that the judgment was good.
That case had been taken to rule that the counts in
an indictment for obtaining money upon false pre-
tences must be so framed as to set forth the pretences.
The punishment was discretionary—imprisonment
or transportation—and it was argued in that
case, as in the one now before their Lord-
ships, that the higher punishment might have
been awarded upon the bad counts. 'The judg-
ment, however, was affirmed. The Noble Lord
then quoted the case of King v. Young in support of
the same view. It was objected, that in the latter
case the objection was not raised as to what counts
were bad ; but that argument had no weight, for it
would have been the duty of the Court to point out,
if it had been overlooked by counsel, that such or
such a count was too general and was bad. The
Noble and Learned Lord then referred to the case of
the King
‘'v. Powell in 2d Barnewall and Adolphus,
to show that the court considered the words crime
and misdemeanor as a nomen collectivum. It was to be
borne in mind, as one of the learned judges, Mr. Jus-
tice Maule, most accutely observed, that the sentence
and conviction only proceeded so far as the evidence
at the trial and verdict pointed out the species of
punishment. In ineteing out the quantity, the
court looked beyond the verdict and the evidence—
in pronouncing sentence, the court took other matters
into consideration, but the sentence cc.uld not come
before the court of error for that. The record
must be so framed that there must be a good find-
ing and a good count: to justify a sentence
of that species and description. The manner in which
it was framed was immaterial, the punishment being
such as the law warranted for an offence so laid
and a conviction so had. When called on to pronounce
his judgment in this case he felt himself in this predi-
cament with his Nobfe'and Learned Friend—that the
nine learned judges, as well those who on technical
points differed, or rather, had their doubts, as well
those who were dissentient as those who concurred,
had declared with one voice, that upon the merits they
had no doubt at all, that upon the great merits and
substance of the case they had no doubts at all, that a
great offence had been committed, an offence known to
the law, that a grave offence and crime had been per-
petrated, and that a punishment warranted by the law
had been inflicted, all the judges concurred. That
there were counts in the indictment charging cri-
minal offences were to be found against which no pos-
sible exception, either technical or substantial, could
be urged ; that these counts, even if they stood alone,
would be quite sufficient to support the sentence, and
that the sentence was one which the law warranted
justifiable,' and he might even say commanded, there
was no doubt. Upon those great features—the
leading and essential substance of the case,
—all the learned judges had a clear, una-
nimous, and unhesitating. opinion. To all the
points which had been urged, both those which
were essential, and those which were of a technical
nature, and urged with a degree of elaborate learning
and ingenuity which he had never heard equalled
either while he practised as an advocate, while he sat
as a spectator, or while he presided as a judge, the
learned judges had given the greatest attention. The
learned judges took time to consider for weeks upon
the results of those elaborate arguments, they con-
ferred together again and again ; each heard all that
his fellow judge had to urge, each had the benefit of
all that his brethren had to suggest, and the result of

_
the whole was that seven out of the nine pronounced
an opinion that there was nothing in the objections
taken, and that notwithstanding the technical infor-
mality of some counts, the judgment must stand. Two
of the judges gave a contrary opinion, one at least, a
contrary opinion, and the other would not concur in
consequences of the doubts which weighed and pressed
upon his mind. They were now called on to elect be-
tween both, and the question was whether
they should take their information on the law
as ilaid down by those who were daily and
hourly administering—it from seven or from two.
It was the usual course when they consulted others
on whom they placed great and just reliance, those
in whom they confided for their integrity or impar-
tiality, who were without that bias which those who
consulted them might feel that they were not free
from, and when they found discrepancies to exist, to
weigh a little the grounds which they gave, but above
all it was the common course of rational and sensible i
men, so consulting, to see were the great majority was
one way or the other, and when the great majority
was one way, and the small minority the other, that
created naturally a leaning towards that course, and
towards that counsel which was supported by the ma-
jority; but how incomparably was that increased
when the seven had a clear and distinct opinion, and
the two only doubted ; when the seven did not hesi-
tate or pause, when they had no sort of dubity or
hesitation, and were unanimous one way ? It was
the more natural thing for a person to take the opi-
nion of a majority who had no doubt, than the hesi-
tating and doubting opinion of the small minority.
That was a case in which he, unlearned compara-
tively with those learned persons, should hesitate to
set up his opinion and judgment against theirs, par-
ticularly when such an opinion was fortified by the
large and long-continued experience which they pos-
sessed. All those learned persons agreed that this
was the very first time this objection was taken, and
that all lawyers, all judges and courts, heretofore
overlooked it, or rather acted on the supposition
that it was untenable,anda very
great assistance to him in formingat
his judg-
ment. He called for authority the other ways
th
but
he called in vain, for while the learned judges
who were for the practice of the law, as it stood, pro-
duced cases, the dicta of judges, the authority and
opinion of the profession on the other side, against
that law, and in favour of the law that they were now
required to set up, pulling down the former law—not
one dictum of a judge—not one sentence of a text-
writer—not one shadow of a case had been pro-
duced. That being
dealing with a case so repugnant to him, and that he
was taking the safer and the surer course in steering
, andcjanmd
ge hisets o the case he felt more free in
by those authorities and decisions, and to tak as his
vitlhi'leeolsPem
important
opinions the st'boepyi niiloands a
solf:e
dt hfoosre
.
materially differed with his noble Friend,
gllejaaeirdnneeos learned
the Lord Chief Justice of the Court and
of Queen'sc Bench
—he meant the challengeof
questiLoneianrnweldiich he so
question the learnad • the array.
judges were unanimous. He
felt strongly the importance. Upon this_
of this subject,
because it went to
court on the
matter, The court was con-
stituted of the . judge andtwelve men • those
twelve men had jurisdiction , .
tlie jurisdiction of the
by being selected in a
en,
dwa ys ,
it had n
argued,
particular manner. Well, then, the question was,
whether they had been selected in a lawful manner.
how
array
of deciding this he must consider
beenselected. The challenge to the
be on account of the indifference
sheriff or the
returning officer. Now
there e of the
had been no authority
cited to show that there could
be any ground for the
challenge to the array. If such a course was
For
ey
was purposehaal
to be adopted, a year might go by without
their having either •
a special or petty jury,
and his opinion therefore was that upon this
point decidedly that there ought to
be no venire de
novo. He would say little or- nothing po
int
that the point
that had been raised as to the hardship
on the tra-
versers in suffering imprisonment
pending the writ of
error ; the fact was, that the law was so, but whether
it was to continue so was another questi • on. He had
now performed his duty to the best of his abilities in
this important case, and he 'had, therefore, only fur-
ther to state, that feeling himself bound to look to the
authorities of the judges, upon those authorities he
must give his judgment as to the plaintiffs in error.
Lord DEissiasi then proceeded to
deliver
his opi-
nion. He would first advert to the judgment given
in the court below allowing the demurrer to the
challenge of the array. If such practices as had
taken place in the present instance in Ireland should
continue, the trial by jury would become a mockery,
a delusion, and a snare. To the traversers' challenge
of the array, on account of sixty jurors being
omitted, the .Attorney:General for Ireland had de-
murred, and by so doing had admitted that such a
fact had taken place. One of the learned judges was
of opinion that the challenge should have been allowed,
and with that opinion he entirely concurred. He felt
bound to disagree, therefore, with the opinion given by
the Learned Chief Justice of the Common Pleas. lie
thought the principles he had laid down in his judg-
ment were erroneous. The question was whether the
party had had a lawful jury to try
him, and on
that point he regretted, but at the same tune he felt
bound to differ from his learned brethren. He had
no doubt that their Lordships were aware that when
the judges were consulted, it was competent for any
judge, who was a member of that House,
to attend that consultation, but he had
been so struck with the proceedings
that had taken place in Dublin that he had written to
Mr. Justice Coleridge, who had been prevented from
illness from attending their Lordships, or even
leaving his room. Now there were many
circumstances in the present case, to which
it was necessary to advert. lie would, how-
ever, first call their Lordships' atten-
tion to the letter he had received from Mr. Justice
Coleridge. He said, speaking of the question of the
challenge of the array, I answer this question with
much doubt, being unable to look to the authorities
on the subject. All questions touching the formation

of juries, must be examined by the judges with cri-
tical care. It must be admitted that the Recorder sent
no general list to the sheriff, but that some spuri-
ous list had been made out by some person.
" That this has been done fraudulently, and with in-
tent to prejudice him on his trial ; that from that
spurious list the jurors' book and special jury list
had been made, and the present array selected, and
that the traverser himself was wholly unparticipant
in this fraud, and protested against the array being
constituted from the list so framed." Here, he said,
is a confessed and serious wrong, and the only ques-
tion is, whether a challenge to the array be the proper
remedy. It is said, first, that the sheriff is not in default,
and secondly, that if the challenge be allowed, there
is no book from which any other jury can be selected.
With great deference, I submit that neither of these
is an answer. He then put a particular case, in
which the sheriff might have made an imperfect array,
and there might be no default, and yet the challenge
must prevail. He then said, in answer to the second
objection, that the only consequence was that
the trial might remain untaken, and he ex-
pressed in strong language his own opinion
that it were far better that no trial should be taken
under those circumstances, than that it should be
taken subject to the heavy suspicion which these facts
must bring upon it. Now, on Monday, when the
Lord Chief Justice stated to the House the entire
agreement of all the judges upon this point, he did not
feel himself justified in alluding to that letter, because
he had concluded that the Lord Chief Justice had
had some subsequent communication with his brother
Coleridge, in consequence of which he might pos-
sibly have seen ground for altering his opinion.
But when he left their Lordships' House, he found
on his table another letter from his brother Cole-
ridge, written the day before. He had before said,
that he thought the argument in favour of the over-
ruling of the demurrer was too technical for the
decision of a great constitutional question ;
and stating, upon the view which he took
of the balance of inconveniences, in his note
of Monday, he was much struck by what
he (Lord Denman) had written on the question of
challenge, and at present, like himself, awaited the
better arguments that were to be adduced on the
other side. He did not, therefore, stand alone in
thinking that the jury should not be selected out of
any list, and that there should be a remedy for
any injury which might be done. He would briefly
state what opinion appeared to prevail in the court
below on this subject. There was originally, perhaps,
some notion that that the challenge to the array was
taken away altogether; but that was clearly not the
case, because there was a particular provision which
preserved the right. It was also questioned whether a
challenge laid to the array where a special jury had
been struck out. That difficulty having been got
over in the Queen's Bench in England, he
did not think that there could be any diffi-
culty in settling it in the same manner. His
Noble and Learned Friend said that the prin-
ciple of challenge to the array rested solely on
unindifferency in this conduct on the part of the
sheriff. The judgment which he had formed on that
point was like that of his brother Coleridge, who, in
the letter which he had written to him, stated what he
considered to be the state of the law at present. The
substantial duties of the sheriff in former times were to
collect the names of those who were fit to he on the
jury, and enter them in a panel, and these duties
belonged to the sheriff alone ; but, by the late Act of
Parliament, those duties were divided between the tax
collectors in the first place, the Recorder of Dublin in
the second place, and the sheriff in the third place.
The tax collectors performed a duty merely ministe-
rial ; the Recorder, in the first instance, performed a
duty which was judicial—decided upon claims and
objections. It was then his duty to sign and settle
the list which was to be the jury list for the year.
The complaint in this case was, that after the Re-
corder had exercised his functions ; after he
had determined what should be the list for the
ensuing year, somebody else said " It shall not be the
list." The handing over of a perfect list to the
Recorder by the sheriff was a ministerial act, and
that act had been incorrectly performed. The chal-
lengers said, " the judicial act has been improperly
performed, but you have deprived your own judicial
act of the weight and authority to which it is entitled."
He could not help believing that, if that view of the
case, which his brother Coleridge had stated much
more clearly than he had done, had been presented to
the learned judges at their consultation, they
would have thought it worthy at least of
consideration. His Noble and Learned Friend
had truly stated that that objection was to the
conduct of the returning officer. Who was the re-
turning officer? Why the Recorder was the return-
ing officer for the purpose of this trial, and in his
opinion the Recorder—though without the slightest
imputation on his motives, which was disclaimed by
all—had been guilty of a default, when he had
handed over to the sheriff, as a list of the jurors, that
book which was not the list which the law
required, and which the Recorder himself had
declared should not be the list. He had
written a great deal more than he was
desirous of troubling their Lordships by reading. Not
only did be differ from his Learned Brother the Chief
Justice of the Common Pleas, as to the principle on
which the challenge to the array was to be allowed,
but also as to the consequences which were likely to
ensue. The Lord Chief Justice said no object or advan-
tage could here be gained if the challenge had been
allowed, for if the challenge had been allowed the
jury process would have been directed to some
other officer. Now, there, he ventured to
think, there was a mistake. The default was
not that of the sheriff, but of the Recorder, or
clerk of the peace, who made out an incorrect list.
The Act of Parliament expressly provided for the
want of the jurors' book being returned. His Noble
and Learned Friend said " Here is a book returned."
But what book ? The Act required that that book
should be returned which was correctly made up from
the list ; but this book was incorrectly made up. It
was asked whether a single defect would vitiate
the whole list. The Lord Chief Justice of the
Common Pleas said that, according to the
argument used, if the cess collectors omitted
a single name, the list would be altogether
vitiated. He begged to differ on that point from the
learned judge. All that had been done previous to
the decision of the Court of Sessions would not be
affected. This reductio ad absurcbm was met at the
bar by an opposite case of much greater extent. It
was asked what would be the effect of omitting 60 or
600 names? He thought the inconvenience would be
very great if the party were not tried out of the
book ; but it should be remembered, that the decision
in the case of the " Queen v. O'Connell" was
not a decision in any other case. The Lord Chief
Justice said there must be some mode of relief from
the inconvenience occasioned by such an omission.
So said all the learned judges—so said his Learned
Friend on the Woolsack, and also his learned friend
who had just addressed their Lordships. His Noble
and Learned Friend on the Woolsack had raised his
expectation indeed in one part of his argument. His
Noble and Learned Friend said, "is the party without
remedy? No, he is not." He (Lord Denman) had
waited to hear what that remedy was. Where was
that redress ? What was there to prevent any one of
the Queen's subjects accused from being tried by
such a jury as the law never approved of ? " Oh,
said his Noble and Learned Friend, "excuse me;
I will tell you what the remedy is on a
future occasion." Now, if the Learned Lord
Chief Justice of England and the judges of
Ireland could not point out any remedy, what secu-
rity was there to the Queen's subjects ? He would go
a step further, and he would say that he would never
believe that there was no remedy, until the well-
known constitutional principle of challenging the
array—unless that ancient practice were repealed
by a direct Act of Parliament, he would not
believe that there did not still exist a remedy in such
cases as these. The objection having been well taken,
it ought to have been allowed ; and not having been
allowed, the trial had erroneously proceeded. In the
20th of Edward 111., it was argued that a
case was vitiated by the party being de-
prived of his right of challenge, on account
of the omission of individuals from the list, and it
was replied that there were good names enough re-
turned by the sheriff ; but it was held by the court
that the document was one and indivisible, and the
consequence of that would be that one error would
vitiate the whole, and the whole was accordingly
set aside. What made this case the more remarkable
was, that a charge of indifference was brought
against the sheriff, and he was tried and acquitted on
that charge, but it was held that he was to blame
for the difficulty that bad arisen. He (Lord
Denman) could not leave this subject with-
out adverting again to the want of remedy.
It had been thrown out by some learned persons that
application to the court should have been made.
Were the Queen's subjects to apply to the discretion
of the court in order to have a lawful jury to try them
for their lives, for their liberties, or for their most
important interests ? Was it a thing for a motion,
on affidavits and written depositions, when the party
accused was always the party swearing last, and after
all the matter was referred to the discretion of the
court ? But on this case such a motion was made
and was refused, but on what ground it was refused
he did not know. He knew nothing further of the pro-
ceedings than what he had seen in the papers. Ile under-
stood that the whole jury list of Dublin consisted
of 717 names. Now, the special jury list of course
to affect of course the panel. It was not improbable
bue• oru. d
sbiex
tay v enrayminconsiderableoutp
rpoopr
ot irotni
no fw
athis
nnouumoi
that if those sixty names had been on the panel, that
the that
of
number.thooa
so
lle otherfrpoomin t
He did not entirely agree with the learned judges in
thinking that there were only two objectionable
jury,ou l
d now might
proceed have be
to en t drawneh
counts. was by no means clear that there was

anything illegal involved in the expression of opinion
against courts of law for the purpose of having other
counts submitted that would he more satisfactory; but
however it was quite enough for his argument espe-
cially as all the learned judges had given an unani-
mous opinion that they were bad counts—that two
counts in the indictment were bad. The question was,
whether the judgment that had been pronounced, and
the sentence which had been passed, could be good
under the circumstances ? The question was A
and B are good counts, C was a bad
count, and the court pronounced sentence
upon the defendants in respect to A, B, and C. Here
were three counts, on all of which evidence had been
taken, and a verdict was taken upon each of these
three counts. A conviction was obtained, and the
court proceeded to pass sentence, and the punishment
was awarded according to the discretion of the judge.
Now it was possible that the court had taken into
account the bad counts as well as the good ones.
They had been told that they must assume that judg-
ment had been pronounced on the good counts only.
Now in the first place, he had a serious objection to
that. The presumption was in direct contradiction to
a notorious tact. If they were to assume this, future
students at law in Dublin would, on a reference to the
reports of the Queen's Bench in Ireland, find that the
fact was contrary to that which their Lordships had
assumed. The law judges had stated that two of the.
counts were bad, while the Court of Queen's Bench
had declared that they were perfectly good and un-
exceptionable. This put the question entirely out of
court. He had felt with his learned brethren great
surprise when he heard the ingenious argument which
had been addressed to the court on this subject, and
he confessed that he never felt any doubt on the sub-
ject until that argument was submitted to his mind.
Now, the question was, whether in point of fact
there was legal ground for doubt to be entertained.
It was not the first time that a court of justice had
taken that view. He remembered at the time that
his Noble and Learned Friend, now on the Woolsack,
presided over the Court of Exchequer, a case was
brought before that court, in which it was proposed
to overrule not the mere dicta of judges, not merely
an opinion which had been received with favour in
Westminster-hall, but a series of decided cases run-
ning through a period of fifty years. His Noble
and Learned Friend, now on the Woolsack, had
examined those cases, and in giving judgment
had stated that inasmuch as the decisions in those
cases were clearly founded in error, they were not
binding. That was the case of Hutton v. Vann,
which had afterwards come before there Lordships'
House, and their Lordships were of opinion that they
were bound by the authorities, but that had not pre-
vented his Noble and Learned Friend who presided
over the Exchequer from entering into the con-
sideration of those cases, and of deciding that
they were not good in law, as they all originated
in a mistake which had crept in in the time of Lord
Mansfield. He had heard his Noble and Learned
Friend, with that admiration with which he had al-
ways heard him, lay down the rule on this subject.
Lord Cottenham and Lord Campbell (whose judg-
ments will be given in full in our next edition) con-
curred in opinion with Lord Denman, and, after a
few words from Lord Brougham, the judgment of the
Court of Queen's Bench in Ireland was reversed,
Lords Denman, Cottenham, and Campbell voting
for reversing the judgment, and the Lord Chancellor
and Lord Brougham for affirming it. The effect of
this decision is, that Mr. O'CONNELL AND HIS
FELLOW PRISONERS WILL BE SET AT
LIBERTY.

ADMIRALTY COURT-(THIS DAY)
The first Surrogates' Court during the vacation was
held this day at Doctors' Commons, for the purpose ol
hearing applications, several of which were upon the list,
but nono of them possessed much general interest.