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

THE SUN, LONDON, WEDNESDAY EVENING, SEPTEMBER 4, 1844.

-What was the weight of Lord Mansfield's general
dictum. His learned brother, Baron Parke, with more
doubt than his subsequent argument seemed to war-
rant, had shown their Lordships that it was not of
great weight as applied to this case. He (Lord
Denman) concurred in that view. He would come
now to the causes which were afterwards cited. The
first was the King v. Hill, Ist Powell and Ryan, that
case was relied on, but he could not see what bearing
it had on the present case. There were several
counts; they all charged one offence and some of the
counts were objected to. The judge said that lie
would reserve the objections, but in the meantime
would pass sentence, and if all the counts were found
bad judgment would be arrested; but if one
was good the sentence would be carried into
effect, but that it was the practice of
the Court of King's Bench to take care
that no verdict should be taken for the Crown on a
bad count. The next case was that of the King v.
Mason, an indictment for obtaining money under
false pretences, for which the punishment was dis-
cretionary—either pillory with imprisonment, or
transportation. Now it was admitted that in the
indictment two of the counts were bad; but it was
evident that there was great want of distinctness in
the case as an authority, for the learned reporter
himself said in his marginal note that judgment was
arrested. That case, however, was very different
from those in which the successive counts contained
cumulative charges, which would lead to greater
punishment in the discretion of the court. Now he
thought that in those cases where there were bad
counts, the discretion might be ill exercised, and he
thought the court was bound to arrest the
judgment, lest it should appear to have been
awarded on the bad counts. The King v.
Young was no authority on the point, although it
was relied on by his noble and learned friends. But
there the court only refused to arrest the judgment
in the way stated, because there were good counts in
the indictment, but it is relied on that because no
writ of error was brought the decision of the court
must be taken as conclusive. Yet, there was actually
no means of trying in what way the judgment was
entered upon the record, nor was there anything
whatever to show whether a writ of error could or
could not be brought. His noble and learned friend
said that the point had never been decided by a
court of error, and, therefore, it was only difficult to
make out any authorities upon this very doubtful,
very loose, and (he would say) very censurable
practice. His Noble and Learned Friend said
this was purely technical in its nature, and
that the effect of it would be, that if a party
were found guilty, not generally upon such an indict-
ment, but upon the good counts only, he would
not be able to defend himself in case of any
other charges being brought against him, by
pleading that he had been already punished ; for
the answer would be "No," because he had
not been punished on the imperfect counts.
What was the answer given by one of the most acute
and learned persons he had ever the good fortune to
meet with in an argument ?—let him observe not
stated with any doubt—it was stated by Mr. Justice
Coltman, whose plain and manly understanding
brought the question before them in a way that
could not be doubted. He said it was an injustice
that a person should be punished who could not plead
that punishment against being punished a second
time on the same state of facts. What was the
answer of Mr. Justice Patteson to that ? He said
that the proceedings would be estopped. Why were
they not estopped now, a conviction having taken
place on this indictment ? Now, again, there would
be a difficulty in calling on the judge to decide at
the assizes whether a count was good or bad; and
they were to assume that he did so decide,
and they were to get rid of that question,
whether the decision was good because he did not so
decide. They were to have it both ways. They
were to assume it was too difficult for him to give his
mind to the subject at all, and they were to say that
he had apportioned the judgment on those counts
which were good in point of law. He thought when
they got rid of the supposed authorities, the dicta
founded on a mistaken and unfortunate observation of
Lord Mansfield, that the principle would appear
altogether unsatisfactory, and he thought when they
looked at the record itself, without at all adverting
to the other circumstances of the case, it would be
found that judgment was pronounced on counts
stating no offence, as well as on counts stating
that there had been offences upon which there were
erroneous findings entered up, and that therefore
the judgment of the court below had been incorrectly
passed. He stated again that this point overpowered
him not only with its novelty, but with the clear and
demonstrated force upon which, when he came to the
examination of the arguments, it rested, and he took
up, therefore, the principle on which he thought they
could only set aside the judgment of the court below,
namely, that what had been done by the court below
was not properly done. He regarded the Court of
Queen's Bench in Dublin with the greatest possible
respect, and he had the highest opinion of the talents
and endowments of the learned judges of that court,
He had still a greater veneration for the opinions of
his learned brethren here, with whom he acted,
and for whom he entertained the greatest pos-
sible respect. He acted there, however, as a
judge for himself, and he felt bound in duty to ex-
ercise his judgment on the reasons brought before him.
He thought that the reasoning in support of the judg
ment was not good in point of law, and it was his
duty to vote against the motion of his Noble and
Learned Friend.
Lord COTTEMIAM then proceeded to deliver his
judgment. He agreed with his Noble and Learned
Friend who preceded him, as to the difficulty in which
any Member of the House was placed who felt him-
self called on to come to a conclusion adverse
to the great majority of the judges, and the
effect of an opinion expressed by a great majority
of the judges ought, of course, to make any one
extremely cautious] of coming to a conclusion con-
trary to what was expressed by their opinion, and it
ought to make one watch every step one took and to
weigh every conclusion which the mind was supposed
to come to, in order that if a person came to an
opinion adverse to that of the majority; and he should
exercise all the powers with which he was invested if
he was to come to a different conclusion. lie adopted
that course, he carefully attended to all that had
been urged at their Lordships' bar, and all
the reasons that had been urged by the
Lord Chief Justice in delivering the opinions
of the judges. He hesitated at every step of
the reasoning, as he followed him, and he still came
to the conclusion that the opinion expressed by the
majority was wrong, and•the opinion expressed by the
minority was right. He apprehended it was his
bounden duty to state the reasons upon which he came
to that conclusion. They asked for the assistance of
the learned judges, in order to inform the House, to
assist them in coming to a right conclusion in matters
of law, and their opinions were entitled to great
weight, but they were not to bind the House, they
were merely to assist the House; and no doubt when
a majority of them came to one conclusion, the great-
est caution and care should be taken at every reason-
ing upon which one felt bound to come to a different
opinion. On a question which lately came before
their Lordships, there was a unanimous concurrence of
the judges, and two of their Lordships concurred in
their opinions, and two others dissented, so that the
decision come to was against the opinion of all the
judges. Upon one part of the case, to which his
Noble and Learned Friend had last adverted, namely,
the point of the challenge of the array, he would
merely advert to, for the purpose of guarding him-
self against the supposition of forming an opinion
adverse to the case of the plaintiffs in error. He
would only say that, if the judgment in that case was
right, it would establish this strange proposition that
there was no remedy for an acknowledged wrong of
great magnitude. The only part of the case on which
he would address any observations to the House was,
as to the effect to be given to tha opinion of the
learned judges, who thought that the first, second,
third, and seventh counts of the indictment were to be
rejected; the two last because they were bad in them-
selves, the others because the findings and the enter-
ing upon the findings were erroneous, and that a
judgment and sentence of the court, which was " for
his offences aforesaid " could not be impugned. A
court of law could not be affected by a consideration

of the nature of the counts which it was called on to
reject. The question they had to consider was, whe-
ther there was error in the record, and if they read
the record as any other document, and only gave
to the words found there the construction they
would receive if used in any other instrument,
could it be for a moment doubted that, on the intend-
ments stated in the indictments in the several counts,

the jury had found a verdict of guilty upon all, and
that the defendants, for the offences aforesaid, _ were

subject to punishment ? Had not the court below
passed sentence for the offences in the sixth and
seventh count, as well as for the offences charged in
the others ? It was so found in the record, and were

they to say that the court had 'not passed sentence
upon all the counts ? He considered that the only,
answer given, namely, that the court only passed sen-
tence upon the good counts, was unsatisfactory.
They could not look to the record to ascertain cer-
tam proceedings not mentioned in it. Some of the
arguments that had been used, supposed the court
below to be right in all particulars. In his opinion the
reverse was the fact ; there was manifest error
on the record, and it was not competent
for a court of error to inquire into the causes of that
error. Supposing there was a charge in a count of
a malignant libel, and that count was proved to be bad,
was it to be said that the party was to be punished
equally as if the count was good? Now, the judg-
ment
of the House was to be governed by the cases
that had taken place ; and with respect to them seve_
ral had been referred to. Two classes of cases had
been cited, the second of which he considered 414
to be applicable to the present case; the first were