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

a0).1

°then They must assume, unless the contrary, was
distinctly shown, that what the judges had done in
that respect was to enter up judgment on the good
and valid count. Upon a writ of error they were not
allowed to conjecture or decide upon probability.
t They must look to the record, and unless the record
showed on the face of it a manifest error in the ap-
propriating of punishment they could not reverse the
;Judgment. That was said by one of the learned
Judges who was in favour of arresting the judgment,
and by consulting the terms in which the judgment
was pronounced, they would find that the judges
• took this into their consideration when judg-
ment was pronounced. They should not, there-
fore, run the hazard of reversing a judg-
ment upon a point which it appeared was
taken into consideration by the judges when judg-
Inent was pronounced ; and, independently of this, let
them look to the record itself, and see whether in the
face of it there was any ground for the objection
'ken. Every record must be construed according to
its legal operation. They could not go out of the
record. Now, what was the judgment? The judg-
Inent in this case was, that the court adjudged the
Parties for their offence aforesaid to be fined and im••
Prisoned. There were two of the counts defective ac-
cording to the unanimous opinion of the judges,
because they charged no offence. Could they then,
construing the record according to the language of
the record and the legal interpretation of it, when
the words of the judgment were for offences, say that
the judgment applied to those counts which bore on
the face of them no offence whatever ? He would say
that was inconsistent and incongruous, and he was
sure their Lordships would not sanction such a con-
struction. The Learned Baron who was in the mi-
nority seemed to feel the force of that, and gave no
answer to it. But he attempted to obviate the force
of it by referring to the other counts which were not
erroneous in themselves, but on which the findings
It defective, and the entering of them erroneous.
it was the unanimous opinion of the judges, and he
concurred with them in that respect, that the findings
of the jury, which could not,'be sustained, and which
were erroneous, were altogether null and void. He
considered that such findings were no findings at all,
and that a good count upon which there was
a° finding was the same thing as a bad
count on which there was a good finding.
It
: was a mere nullity—it was not for the offence upon
the record, but upon the finding of guilty. Now, he
adopted the opinion of the judges that the findings were
a nullity, and, therefore, that there were no findings
at all. Such were the conclusions to which he had
come on the record. He was of opinion, if the record
Was properly construed, it would be considered as
obtaining an award of judgment which was properly
414. In the present case, on the face of the record
itself, he considered there were no defects, and in that
?Pinion he was supported by the authorities of the first
fudges of the land. Now, what were the authorities?
;ha', the first was the case of the King v. Powell.
' no were the judges who presided on that occasion ?
""hY such men as Lord Tenterden, Mr. Justice
Taunton, and Mr. Justice Patteson. Now, the judg-
Tent that had been given in that case he considered
had
upon the present one. Another case that
,t!(1 been referred to was that of the King v. Rolls.
That was the case of an information for the suborna-
tiOil of perjury, and in that case it was decided that
; one assignment was good it would onosurt the
41,1,dgment, and it could not be invalidated a writ
°I error. The third case that had been referred to
was that of the Queen v. Ingram, and in that case the
Court decided that the judgment was good if there
there were another class of cases upon writs of error
heniselves,r to which he would now refer, and which
ed to the same conclusion. It was said that there
Weref distinctions between cases in error and in arrest
t•Judgment—he could not see that ; and in support of
18 °Pinion he might advert to the case of the King v.
Fall. That case was an indictment for obtaining
emoney under false pretences; the judgment was en-
red up and a writ of error was brought, and upon
at being argued by Mr. Fielding, whom many of
„ heir Lordships as well as himself could remember,
e writ of error was dismissed, and the two counts ob-
`'ered to were declared to be valid. Such was the decision
o
The. Such men as Lord Kenyon and Mr. Justice Buller.
1,„ Noble and Learned Lord then referred to the ob-
Ctations of Mr. Baron Parke on this case, and observed
la the Learned Baron said thejudgment was a judg-
Out of transportation, which could only be supported the tWO counts. Now that was a most extraor-
lfrtrY answer, for it made an additional objection.
Weinere was a general judgment, and all the counts
re
two good, and the judgment would apply only to
tentended
the counts, then, according to the principles
te"'ended for, that judgment would be erroneous,
tweallae it was a general judgment sustained only by
ga,,;e°unts. That was the answer attempted to be
inj:11; so that there was an additional objection, not
co„.•T Where the counts were defective, but even if the
Principle
had been good the judgment, according to the
knaeiple in question, would be an erroneous judg-
„,,ellt, because it was sustained only by two of the
;111:Its• 'Therefore he apprehended that that
favourWas of the present judgment. But there
another authority, which occurred about
the same time, not quite so stringent an authority, but
going exactly in the same direction. It occurred, he
thought, the year before. He alluded to the case of
ite King v. Mason." There was a good count, and
Was contended, and the count admitted, to be defec-
e• By whom was that case argued? By a gen-
ia'alan whom they all remembered—a most acute
,IYer, conversant with every technicality connected
tv.th the profession—he alluded to Mr. Marryat.
id Mr. Marryat make the objection that this count
could not be sustained ? There was a bad count
tilnitted to be bad, and this was a general judgment.
ilia Such thing. Instead of doing that, he confined
Did
to labouring the invalidity of the special count.
rotnot that show what his opinion was ? Did not
t show also what was the opinion of the court,
iitta4isting of the distinguished individuals to whom he
totde already referred ? If not, would they not have
trPosed and said, " Why do you labour this
aoiLat, Mr. Marryat, there is one count admitted
t.ti°e bad, and therefore the judgment cannot be sus-
j,,11;(1?" There was another authority in the time of
L4n Eldon, the case of Hill, referred to by the
earned Baron. That was the case of a person tried
to the assizes for obtaining money under false pre •
Icleek The indictment contained several counts.
e Party was found guilty; he was sentenced, and
atheeneral judgment was pronounced. The question
t
ao the sufficiency of the counts came under the
arnaideration of all the judges. As the result of the
seg,Pnent, one of the counts was decided to be bad :
h that in that case there was general judgment
ptta record, consisting of several counts, one of
thtt en was admitted to be bad. A writ of error,
erefore, under such circumstances would, according
jaris doctrine,' have prevailed. What ought the
%es to have done after they had decided the ques-
N:2 According to this doctrine they ought, as a
aoogcr of course, to have recommended the pri-
ther to a pardon. Did they do so ? No such
Ilari"g• The judgment was carried into effect.
NT' he not then made out, by a host of
responding authorities, the position for which
timeontended ? He said it depended on prin-
aere and that the record in this case was sufficient,
sur,°`-uing to the legal authorities. The principle was
ref„Nrted by the host of authorities to which he had
th'red, by Lord Mansfield, in the first instance, in
titv Court of King's Bench, by the subsequent autho-
tl4' at an earlier period than Lord Mansfield, in
tune of Lord Holt, and brought down to the pre-
° t time. No such objection was ever made, though
Z_Portunities for making the objection had constantly
posrred. Therefore it was perfectly clear that his
colti" was correct. Though the point had never
ro
e expressly for opinion before the judges, it had
. lisbaYs been considered free from doubt—an estab-
wb,,l point of law. Difficulties had been urged, to
ciich he should for a moment refer. One was the
h'urtc. ulty arising from a pardon—a pardon as to a
to a It was not at all necessary for him
eau a3' a single word upon that subject, s°
be-
said there the judges, even the dissenting judges,
Rent
was nothing in that agument. The argil-
Reve_L_ would equally apply to an indictment upon
ab,eral counts, where such of the counts was free from
thjateti°n• It proved, therefore, too much, and on
at_ecount it had no validity. Another difficulty
•eu had Whiebbeen insisted upon was the difficulty in
convict Party would be placed on pleading autrefois
fro That had received a satisfactory answer
• In the
ylearned judges ; there was no foundation for
~a,
4-n all cases of pleas of that kind the question
Nu" of identity of error. It was a question of
delieetn.ee• The question was whether the corpus
one 1, upon which the party had been convicted, was
11Pcm
at was which the judgment could be affirmed.
.
evil a difficulty which could only be settled by
ence
, and the objection was not one, therefore,
it b",could prevail on the present occasion. Now,
cissio:'-, been said that there was no express de-
s " on the subject. A word as to that. If
that ll_ ease were so clear, so free from doubt,
cntert".roan, either barrister, attorney, or judge, even
Point had been uniformly and constantly acted upon
n
de, gnised, was it to be said, because there was
t 0 he nalon upon the point, that therefore it was not
argli„rnsidered as the law of the laud ? Why, the
the ia"lwent led to this conclusion, that the more clear
twin it the more free from doubt, the more uneer-
that eow°°ld be. It was usage, practice, recognition,
the ns.tituted the law of this country. Many of
aekricZnes and opinions which were a part of the
°Pink, edged law of the land, were doctrines and
vain folirs with respect to which they would look in
,the reeo anY.direct decision. The practice, the usage,
• 01i0,.111 gnition,
were considered as precedents esta-
%jellg the law,
and this was the foundation on
It Was common law of this country was based.
w4lllitted in this case 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 he 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 not 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. lie 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 conssantly 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
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 all 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 con-
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 of
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 extensive 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 uncle 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
TaS fiXed by law and one in which the punish-

meat 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 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
stated that he had founded his opinion with much
htsitation, 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 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 come to such a decision. He 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 he 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