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

ment was left to the discretion of the judge.
1 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 he doubted whether it had
not been carried too far—whether conclusions had not
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 I
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
1 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 should
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 coma to such a decision. He must
see clearly, that all that had been done before had
been done in error, before he could pronounce k 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 DOss ihil;
• but as a fact absolutely and un-
questionably true, thati theojobjection 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 the: 1•e were not of the same weight as the
authorities upon of
writs error. He answered—
first, that some
of the cases which had been
quoted were on writs of error, and net on
motions in arrest of
he did not judgment;
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, but 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
on the good.
judgment stand " Let their h• Lo dr 3 ips
listen to what the state of the law was. The defend
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 vn which that eminent judge was