The Sun.
London, England, 1844-07-09 00:00:00

bers of the Queen's Bench, may be of opinion that
their former judgment was incorrect. Their Lordships
might be also of opinion that nine of the counts were
bad, and that consequently the parties before the House
had been illegally convicted of nine grave charges, while
in fact they had only been guilty of one very minor
offence. In what situation, he would ask, were their
Lordships, if the law was what was contended' for on the
other side ? Was he to be told that the parties might
apply for a free pardon ? Why was a Court 'of Error
allowed in that House, but for the purpose of correcting
the errors of other tribunals ? In political conspiracies,
where hundreds of men joined together to effect a certain
object—the repeal of an Act of Parliament, or so on—
some might attempt to effect that object by lawful means,
others might attempt to effect it by unlawful means, and
others by the most criminal means. They would then
be led to this conclusion, that in prosecution's of this
nature, where parties suffering the sentence of the court
had been illegally convicted of a greater offence, but had
been legally convicted of a minor offence, the-: Court of
Error must lay aside every principle of justice, and
affirm the sentence, because it must assume that
that sentence bad been passed for that for
which, in fact, it had never been passed. The
injustice and the absurdity of such a course of pro-
ceeding must be manifest. But he would suppose ano-
ther case, not a case of political conspiracy. Suppose a
man indicted at the court of quarter session for two
libels, the first altogether a libel in law, yet one of so
trivial a nature, that if it had stood alone na one would
have thought of prosecuting it ; the other an. accusation
of some horrible offence, such as incest. Suppose him to
be tried, convicted, and sentenced. He moves an arrest
of judgment on the ground that the count charging the
graver libel is bad in law. The Court hold's that both
are good, and as they would only haie passed a lenient
sentence on the first count they do their duty, and
pass a heavy sentence, because he has been convicted
upon both. The case is brought by writ of error before
the Court of Queen's Bench. The Court of Queen's
bench held that the first count is bad and. the second
good, then this doctrine of presumption would prevail
and the Court would refuse to reverse the judgment, be-
cause they would say that it was to be presumed that the
Court below had passed sentence for the offence which
was well laid, and for no other. The Court; therefore,
would affirm the judgment in accordance with this doc-
trine of presumption. A writ of error would then be
brought -before that House, and both counts are again
argued. Their Lordships, including the Lord Chief
Justice, who bad heard the case, argued before, and also
the other judges of the Court of Queen's Bench, who
had joined in that decision, are of opinion upon graver
deliberation, that the Queen's Bench was wrong, that
the second count was bad, and the first good, it would
be the duty of the court of error to reverse the judg-
ment. But if this doctrine of presumption were to pre-
vail they must affirm it, and they would have this ab-
stirdity—the Court of Queen's Bench affirmed the
judgment, becauie they presumed that the court had
passed judgnient only ou the second count which they
considered good, and the House of Lords affirmed it,
because they considered
.that sentence had been
passed not on the second count 'which they considered
bad, but on the first; and the unhappy defendant who
was thus passed from court to court, having expressly
"heard the judge say, " You have this sentence passed
upon you because you have been convicted of two
offences," would be told by the first court of error. " You
are punished for one offence only," and when he came
to that HOtise he would also be told that be was pu-
nished only for one offence, but that offence a different
one from that which he had been told he was punished
for by the Court of Queen's Bench. What a spectacle
would thus be presented before the enlightened people
of this country, who are so justly proud of their laws
and institutions, and who looked up with' such respect
to their Lordships' House, as the purest, most just, and
most independent tribunal in the world. This defendant
might see seated in that House the chairman of the
quarter sessions who had sentenced him, the Lord Chief
Justice, before whom the writ of error had been first
brought ; and when he had proved to the satis-
faction of their Lordships, that he was suffering
a grievous sentence for two offences, with respect to one
of which he had been illegally convicted, he could not
appeal to the NOble Lord who had sentenced him, and
who told him that he had been sentenced upon two
counts—he could not appeal to the Chief Justice of the
Queen's Bench, who told him that he was, suffering the
punishment for the graveroffence ; but that House, act-
' ing upon this doctrine of presumption, told him that he
was suffering, and must suffer this heavy punishment for
that other offence, of which, if he had been alone con-
victed in the first place, he would not have suffered one-
half of the imprisonment which he had suffered before
coming to that House. And if, after that decision, those
who for the future framed indictments for conspiracy
were not more careful, these cases would be of constant
occurrence. Was it possible that their Lordships, sitting
as a Court of Error, when they found that a person bad
been convicted illegally of nine out of ten offences, and
had been sentenced to an imprisonment for years, and'
a fine amounting to half his fortune, not for the offence
of which he had been legally convicted, but of that of
which he bad been illegally convicted—were their
Lordships bound by this principle of presumptive act, so
contrary to- truth and justice, as to say "You must suffer
this punisnment, and you must pay this fine, although if
you had beeii brought up -for judgment for the offence
of which you had been legally convicted,' you would
have had no such punishment inflicted upon you." If
they felt themselves compelled to affirm this doctrine—
if there was, an Act of Parliament which gave them no
discretion—if there was a solemn decision of that. House
on the point oa a writ of error, undoubtedly their Lord-
ships must be bound by that decision, and the defend-
ants must submit. But he trusted if such were the case,
that even the short remainder of the session would not
be allowed to pass away without the introduction of a
Bill to alter the law. But there was no authority—no
Act of Parliament—no decision of that house, or
of a court of law, laying down that a writ of error
brought up on several misdeineanors, if there were one
good count that would be sufficient, and the sentence
would be affirmed. If there were such, it had eluded
'the search of himself and friends. In cases is which
motions were made in arrestof judgment in civil actions,
where general damages had been given, the court was
compelled to arrest the judgment if 'one count was bad.
As in a civil case it was impossible-for the court to say
how 'much the damages the jury awarded upon the count
which was bad, and how much upon that which was
good, the court would reverse the judgment altogether,
and send back the case to another, jury, that they might
apportion the damages-' and their Lordships would find
that this principle of law, which was perfectly sound
, 'when applied to civil cases was equally applieable
to criminal cases for several offences with one sen-
tence upon a writ of error. In civil cases the
court could, not . determine how much of the
sum the jury awarded upon a count that was bad,
where there was a eonvictionfor two misdemeanors with
one sentence for two years' imprisonment, and a fine of
2,0001., the Court of Error had no power to determine
how much of .the two years' imprisonment the Court
below awarded upon the count that was bad, and how
much upon the count that was good, nor how much of
the-fine was awarded on the bad count, nor how much on
the good count. The punishment was discretionary, and
it might be that upon the count which was good a pu-
nishment of a month's imprisonment; and a fine of 1001
might be awarded, whilst upon the other count that was
„pad, a-punishment of twenty-three months' imprisonment
sad a fine of 1,9002 might have been awarded, and the
-Court not only had no power to determine in what pro-
portion's the punishment was awarded, but they had no
power to app.:Sion it themselves, because they did not
sit there for that-purpose, and, therefore, upon a writ of
error for several miscimeanors, where one discretionary
sentence was imposed, the Court of -Error was precisely
in the same-situation as either the Court below,, or the
Court -of Error above, in ,the. case of a verdict by a
jury on several counts giving one sum as damages, and
therefore the Court had no power except to reverse
the judgment‘ltogetber. In the cases to which he had
referred, the Oases for example of " l'eaker v. Oldham,"
and " Grant v. Aschans," the judges reversed the judg-
ment in tote, because they declared themselves unable to
apportion the damages, and therefore the oases were
sent back for another trial. But the judges were found
to have made some such observations as- those—" but it
was otherwise in criminal eases, because," and he prayed
their Lordships to attend to the reason given, because it
Would. determine the principle on which they acted—
" because," thCy " the court there' eould apportion
judgment--the court there could pronounce what it
thought fit, if there was one good count in the indict-
ment Lord Mansfield said, We must reverse the
judgment altogether, because we cannot apportion the
damages, which would be to assume the functions of a
jury;- but it is otherwise in a criminal case, if we find
even one good -count; and why, because Nve are the jury
• there, and we impose the punishment. 'Provided there
be one good count in the' indictment we need not reverse
the judgment, because we have it in our Over to award
punishment, and we will award it according to what is
just and right. on one count, provided it be.good." They
found. the judges using such expressions where the
general principle of the -law was adverted to, and no
doubtit was perfectly sound doctrine upon motion on
arrest of judgment for there the court had it in its
power to apportion the' punishment' according as the
counts. were good or bad; but upon 'a writ of error
the Court of Error was in a different situation.
If their Lordships, in all cases *here there bad been a
prosecntion for misdemeanour, though there might be a
hundred counts, were in a situation to say that although
there 'was a general count the party had been, convicted
of but one' offence, then the doctrine applied as well, in
point of-reason and justice, to writs of error Be to motions
in arrest. The court of error might say, " Although we
know this, all these are charged as several offences, yet,
by universal and invariable practice, a party cannot be
convicted of more than one offence ; therefore, we will
net, upon the substantial justice of the case, and, although
the offences are laid as several in- point of form, yet, as
we know there can be but one offence-in pointof sub-
stance and truth, we will not refuse judgmentif we find
one count good and valid in law." But the factor truth
of the case was otherwise, and rendered the doctrine
altogether inapplicble to writs of error, It was custo-
mary in all kinds of criminal proceedings for misdemea-
nour ; but in cases of conspiracy it was usual to include
two, three, or more, of the distinct and several,
offences in one indictment. One of their Lordships,
Lord Chief Justice Tindal, would remember 6 very
portant ease which had 'been tried before them within
,the past week. In that case, though there was a great.
multiplicity of county, three perfectly distinct conspira-
cies were charged under .enti indictment One was a
conspiracy to defraud a man of property by procuring a
-foreign legislature to pass an Act to annul a con-
tract ; another was to turn a' an out•propertv of RAO
he was lessee, and which: if ever it existed, could not
have been formed till two years after the first was coin-
pieta ; the third was to destroy a man's oredit'as a mer-
chant. Now, if it had happened that, instead of Op
charges being groundless they had been Well'proied,
there would have been a conviction on the whole