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

Lord DENMAN (in continuation from our After-
noon Edition) said—But their Lordships were not to
be -satisfied merely with the opinions of the judges,
they had a duty of their own to perform. They
must satisfy their own consciences. The opinions of
the judges were merely the materials for making
up their minds, and they must be satisfied
before their minds were made up. What had
happened in that House not twelve months
ago 'I There was an universal opinion of the
• bar founded on three distinct judgments of different
Lord
of former times, as to the law of marriage.
Lord Mansfield, Lord Kenyon, and Lord Ellen-
borough had all taken the same view as to the nature of
the marriage contract, and Lord Stowell, who had
had half a century of experience, and who had de-
voted the greater part of his time to the consider-
ation cf this subject, agreed with them in opinion.
Their _Lordships had entered on the consideration
of the case, and had requested the attendance and
opinion of the judges. The judges had given their
opinion, which was contrary to the opinion of their
predecessors • but their lordships, convinced by the
arguments Which had been laid before them, differed,
toto ccelo, from the opinion of the judges, and felt
bound to say, according to their own convictions, that
the judges had not taken a correct view. On that
question their lordships were equally divided ;and the
consequence was that the judgment of the court below
was affirmed contrary to the opinion given by the
learned judges. He admitted that when he had first
heard the argument on that point at the bar, he had
heard it with surprise, but his surprise had afterwards
changed its object, andi he was surprised not so much
that the objection should have been taken, as that
such a rule should ever have been considered law. He
was convinced that it never had been law, and the
slightest attention would show that such was the case.
It had arisen from a dictum of Lord Mansfield's, not
in a case relating to the criminal law, but in a
case relating to the civil law when he was not called
upon to inquire into the state of the criminal law on
the subject; and when he went out of his way to
make a grievance against the law, as he thought, he
found it by making an antithesis between the civil
and criminal law. He said that in a civil action in
which there were several counts in the declaration,
and in which a jury gave general damages,
such a verdict would be laid aside if one of
the counts of the declaration were bad, and
he commented upon the inconvenience of such
a rule. He regretted that it had not occurred
to Lord Mansfield that there was a plain remedy for
this inconvenience, and that he had nothing to do,
while sitting at Nisi Prius, but to tell the jury to
assess the damages upon each count, and then the
verdict could be set aside upon those counts which
were bad, while it would stand upon those which
were good. Why it should be necessary to say that
the rule was different in criminal cases he (Lord
Denman) was at a loss to know. No doubt since
that time the opinion had been universal in Westmin-
ster Hall. The Bar had all expressed the same opi-
nion, and why ? Because they had taken the law
for granted. And here he would say that they
looked at the law in columns, as it were,
to consider on what it rested. They would find that a
certain portion of it rested upon Acts of Parliament,
a certain other portion upon decisions, a certain other
portion upon dicta, and a considerable portion of it
would be found to be taken for granted. There was
a great deal which was taken for granted as law
which when examined turned out to be no law at all,
being founded on no reason, and resting on no deci-
sion—and such, he thought, was the case in the pre-
sent instance. He thought that his Learned Brethren,
on Monday, must have forgetten certain facts con-
nected with the administration of the criminal
law. They had stated that in an indictment
for felony, consisting of several counts, it
was usual to take a general verdict, and if
there was one good count that was sufficient. He
denied that that was the universal practice. Whenever
he tried criminal cases in which there were several
counts, he always put it to the jury in this manner—
"Do you think there is anything on such a point ?
if not, you will acquit him on that point." For in-
stance, in case of an indictment for attempt to murder,
to maim and disable to do some grievous bodily harm,
be would say, with regard to the attempt to murder,
"if you consider he did not intend to murder, you
will strike that out at once. It is clear that he never
intended to disable, therefore you will acquit him on
that point. There is no evidence to support
the intention to maim ; and with regard to
the count alleging some grievous bodily harm,
you will consider it." Now, in that case a jury would
most probably bring in a verdict of not guilty on the
three first counts, and convict on the last
alone. That was the proper course for a
judge to pursue, and one which would
xemove all difficulty. It was said that the
adoption of such a course would 'give rise to the in-
convenience of the judges being called on to form an
opinion upon the goodness of the counts before the
delivery of a verdict. No inconvenience could arise ;
on the contrary, he thought great good would be pro-
duced from their adoption of the practice. In his
opinion there could not be a greater grievance
and oppression than these endless, unintelligible,
nnwieldly, voluminous indictments. An indictment
extending over fifty-seven pages was itself a grievance ;
many prisoners could not afford to pay the clerk of
the peace for a copy, and, when they got
it, the most learned persons could not find out with
what the prisoners were charged. The words were
so ambiguous, that it might be that the
pleader who drew it up might mean one thing, the
jury another, the judge a third, and the court of
error a fourth, if they did not overthrow the whole
judgment. There was also a mistake as to the prac-
tice of the Court of Queen's Bench in this country.
It was said that when an arrest of judgment was
moved on one count, the court was in
the habit of refusing if there was an-
other count which would support the verdict.
Had that been so in the case of Feargus O'Connor ?
He had been convicted on two counts. The Court
had heard the argument on one count in arrest of
judgment, and had granted it, and then had proceeded
to hear arguments on another count, which was so full
of verbosity and ambiguous expressions, that the At-
torney-General discovering the great doubt which the
court entertained, had never pressed for judgement.
No inconvenience could arise from adopting the cor-
rect practice. In a case of conspiracy which he had
tried at Guildhall, objection had been made to a count.
He said it was immaterial, as he was not going to pass
judgement then, but had he been going to do so, he
should have considered the goodness of the count, also
where there were several counts on each, saying, "we
apportion such and such a punishment to such a count,
anal such and such a punishment to others."
And thus it would be reserved for the after- considera-
tion of the Court, how far the objections affected that
judgment. Such was the practice of the Court of
Queen's Bench, and the proper mode, as it seemed to
him, of proceeding. But his Noble and Learned
Friends said that the objections were merely technical,
and that no injustice could arise from the course that
bad been followed by the Court below. Now lie
must say that he thought there would be the greatest
injustice. The case was not the same as if some irre-
levant stuff had been inserted which imputed
offences. But it was impossible not to see
that if there had been three or four indictments, some
of them bad, and the court had passed judgment on
all these, the case would be the same, and there would
be the greatest injustice, for the court might pass
its judgment on the strongest clauses, and then the
bad ones. The first case, which was relied on by his
Noble and Learned Friend was, that of the King v.
Powell, where the defendant was indicted for two '
offences—assault with a certain intent, and with a
common assault. The jury found a verdict generally,
and a writ of srror was brought on the ground that the
defendant was fos.,nd guilty on two indictments. Now,
there was one remark which fell from Mr. Justice Taun-
ton, to which he (LordDenman) wished to direct atten-
tion. That learned judge said that there were not
two indictments, that there was but one act charged,
2nd that the defendant was found guilty of only one
offence. The words " misdemeanour" and " offence"
camprised both the counts, and formed, in fact, a
nomen conjunctium applying to one act. He thought
that the decision of the judge separated that case from
tWs aver I. The next case is led on was that of the
King v, Mut Is" for suborn stion of perjury . Sonia
ingstreire dee.ned bad, be( a,us time were no
nt psrjt.ry in them. The view taken of
that case by the Lord Chief Justice Holt was, that
there was only one offence, that of perjury, and
that it was no matter what werethe as sign -
nents. 'Now to him (Lord Denman) that answer
completely _removed the case from the present argu-
ment. Thk- next case was an indictment against a man
and his wife• for assault. There the objection was
sc m 'what or a grammatical nature. In the first part
of the indictment the singular number was used in the
words " vulneravit verberavit." But on the latter
part the error was corrected, " vulneravesunt et
verberaverunt." In that case Mr. Justice Parker held

that there was only one count, and that the verdict
was rightly found. These were the only cases which
were relied on, and these were all the authorities on
•which he state of the English law before Lord Mans.
field Was nfArmed to be in support of his Noble
and Learned F4end. But they relied further on cases
which occurred since :Let them first, however, consider