The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1844-09-10 00:00:00

imperial Varlizuurnt.

HOUSE OF LORDS.—WEDNESDAY.
Judgment was pronounced on Wednesday by the House
of Lords on the writ of error in the case of O'Connell.
The decision of the Court below waq reversed.
Their Lordships first gave judge ent in the case of
" Samuel Gray v. the Queen in error," reversing the de-
cision of the inferior Court.

The Lord CHANCELLOR then proceeded to do liver .his
opinion in the case of " the Queen v. O'Connell and
others." • When the writ of error was first heard at

\

their Lordship's bar, it occurred to him, as no doubt to
many of their Lordships, that to avoid all possible sus-
picion, or pretension of suspicion, of political bias, the
assistance of the learned Judges should be requested.
These learned persons had patiently given their assist-
ance, and had now delivered their opinion. Except upon
one point their opinion was unanimous, and upon that
point the dissent of the minority was expressed with
much doubt and hesitation. Unless, therefore, their
lordships could believe that the opinion of the majority
of the judges was founded in palpable error, the judg-
ment of the court below ought to be affirmed. The noble
and learned lord then stated the nature of the question.
By the law of England a general judgment, notwith-
standing any defective count in the indictment, was suf-
ficient. That was the rule in criminal cases, laid down
by Lord Mansfield in clear and comprehensive terms. It
was concurred i❑ by some of the ablest judges that ever
adorned the bench, and until in this case he had never
heard it questioned. it was stated that the rule applied
Only to motions in arrest of judgment. He was satisfied
there was no ground for that exception. But it was said
that otherwise it could not be shown what portion of the
judgment might be awarded in respect of the defective
counts. Unless there was no proof to the contrary, it
must be assumed that the judgment was based upon the
valid part of the indictment; but on the face of the
record in this case was there any ground for the objec-
tion ? The judgment was, that the party for the " offen-
ces aforesaid" be fined and imprisoned. Some of the
counts were bad because the offence was not clearly
stated. How, then, could it be said that the judgment
was based upon those counts which stated no offence ?
Such a conclusion would be an incongruity and inconsis-
tency, which their lordships would not sanction. The
same reasoning would apply to those counts upon which
the findings had been wrongly entered. They were a
nullity. Upon the face of the record, therefore there
was no defect whatever. The noble and learned lord
then referred to various authorities in support of that
opinion. They were cases of motions in arrest of judg-
ment ; but it was said there was a distinction between
motions in arrest of judgment and writs of error. He
denied that distinction. However, in writs of error he

might refer to several authorities of modern date, where
the same objection lay upon the surface, but was never
taken. The principle which he bad stated was supported
by authorities from the times of Lord Holt downward;
it had been considered as free from all doubt, and estab-

lished as law. But it was urged that a difficulty would
arise from not distinguishing the counts, in the case of a
party pleading autrefois acquit. There was no ground
for such objection, for the plea must be a plea of acquit-
tal of the corpus delicti, and that would not apply here.
Then it was said there was no decision upon this point.
But was nut that a stronger proof that the law was as he
had stated ? It was usage. practice, and recognition that
constituted the law, and this principle had never before
been doubted. Even the learned Baron who dissented
admitted that he now beard it for the first time. Nothing
then but a case clear of all doubt could justify their lord-
ships in differing from the majority of the learned judges
upon this objection. He would refer briefly to another
point—the challenge to the array of the jury,—because,
although the other judges were unanimously against the
objection, his noble friend the Lord Chief Justice en-
tertained a strong opinion in its favour. There was but
one principle upon which that challenge had ever been
allowed—either the position or the conduct of the sheriff.
If he were not indifferent, or negligent, that was a ground
of challenge : but in this case nothing of the kind was
imputed by the record. In making up the jury-book for
so large a city as Dublin, it was almost impossible that
some mistake should not arise ; and if this objection were
allowed, it would be of constant occurrence. The pro-
per remedy too was not by challenge. Upon this point
lie entertained no doubt. As to the question of the con-
tinuance of the trial, the opinion of the learned judges
was complete, and it was therefore superfluous for him to
enter upon it. The plea of abatement was also in his
opinion insufficient. He therefore called upon their
lordships to affirm the opinion of the majority of the
learned judges, in opposition to the doubtful and hesitat-
ing opinions expressed by two highly distinguished mem-
bers of that learned body. The noble and learned lord
then moved that the judgment of the court below should
be affirmed.
Lord BROUGHAM followed. The majority of the
learned judges had, upon the questions relative to the
defective counts, given their clear and decided opinion in
favour of the validity of the judgment, although given
generally upon the indictment. Two learned judges had
dissented from that opinion. but Mr. Baron Parke was
the only one who had entered at length into his objections
to it, and even that learned judge had expressed but a
doubting and hesitating opinion, and concluded by saying
that he doubted whether be ought not to advise their
lordships to affirm the question—a very incorrect expres-
sion, for the learned judges were there to deliver their
opinion, not to offer their advice. In the opinion, how-
ever, expressed by the majority upon the point in ques-
tion, he most entirely concurred. Upon the 6th and 7th
counts, upon which the learned judges were unanimous,
he could not agree with their opinions, or perhaps he
ought, like the learned baron, only to express a doubt of
their correctness. The noble lord then entered at length
into the consideration of the 3d rail 11th yurstions, upun
which, as he had stated, his opinion went with the majo-
rity of the learned judges. It was said that there was no
decision upon the point; but how much of the law rested

on the same foundation, for this simple reason, that it
was so clear that it could not be questioned ? After hav-
ing referred to the various authorities, the noble lord said
he found himself in this predicament :—The learned judges
were unanimous on the merits of the case ; that a grave
offence, punishable by law, had been perpetrated, they
agreed ; but bad counts happened to be found in the in-
dictment—elaborate and learned arguments had been
urged at the bar—the learned judges had deliberated
upon them, and seven out of nine had decided against the
writ of error upon that objection. From whom, then,
were they to take their statement of the law ? From the
majority, who had given their clear and unhesitating opi-
nion, or from the two who bad expressed themselves with
doubt and hesitation ? There was no dictum in support
of the opinion of the latter, and he therefore thought it
the better course to concur with the majority. The next
point was the challenge to the array. The real question
was, whether the jury were well selected, for that was the
requisite to the proper construction of the court. Tue
Tight to challenge was on the ground of unindifference or
misconduct on the part of the returning officer. There
was no imputation of that kind on the record. If the
objection were good for many names having been omitted,
it would be good for one, and it would be going a great
way to say that on such a ground the jury was improperly
empanelled. On that point, therefore, as on the remain-
ing points, he agreed with the majority of the learned
judges.
Lord DENMAN then delivered his opinion. He would
first refer to the overruling of the challenge to the array,
not only because it was preliminary in the proceedings,
but because it was a matter of such extreme importance
as not to admit of any exaggeration of the effects which it
might hereafter produce in the administration of justice.
If such a practice were allowed, a trial by jury, instead of
being a protection, would be a mockery, a delusion, and
a snare. It appeared to him that the challenge to the
array, on the ground of the omission of several names,
ought to have been allowed. He thought the principle of
the challenge was not the question whether the sheriff
had done right or wrong, but whether the party had bad
a lawful jury for his trial. Upon that point he felt so
strongly, and was so entirely unconvinced by the reason-
ing of the learned judges in Ireland, that, being unable as
a peer to attend the consultation of his brother judges, he
wrote to Mr. Justice Coleridge, who was also prevented
from attending, on the subject ; and, from the answer of
that learned judge, he felt himself entitled to say he did
not stand alone in his opinion. In the judgment he had
formed he and his brother Coleridge thought that the
duty of making the jury list did not rest now as formerly
with the sheriff alone, but was by the late statute divided
between the tax collectors, the quarter sessions, i. e., the
recorder, and the sheriff. The recorder had a judicial
office to perform, and it appeared to him and his learned
brother that in this case, after the recorder had decided
upon what should form the jury list, some other person
bad said " No ; not that, but this (the noble and learned
lord illustrating his argument by dividing a sheet of paper
at the time) shall be the list." The noble and learned
lord on the woolsack said the challenge was not the pro-
per remedy for the defect, but he did not state what was
the proper remedy if that were not. He (Lord Denman)
considered that it was, and until he saw that ancient se-
curity for a fair trial repealed by act of parliament, he
should consider that it still existed. He was therefore of
opinion that the challenge ought to have been allowed,
and that the trial bad erroneously proceeded. He did
not entirely agree with his learned brethren that there
were only two objectionable counts; he believed there
were others ; and the question was whether, under the
circumstances, the sentence was properly awarded. The
noble and learned lord on the woolsack said it must be
assumed that the judgment was awarded upon those
counts that were good ; but here there was a difference
between the judges of England and of Ireland, for the
latter held that the 6th and ith were unexceptionable,
whilst the former were unanimously of a contrary opinion.
How, then, could it be said that the sentence awarded in
a court where certain counts were considered good, was
pronounced upon those that were good, when some of
such counts were held in the House of Lords to be defec-
tive? His surprise at the objection being taken had
changed to surprise at what was stated to be the law. In
his opinion the law was not as it had been laid down by
the majority of the judges. He could state from his own
experience, that it was not the universal practice that a
judgment was given generally upon all the counts of an
indictment, and the difficulty, might be obviated by the
court stating upon what counts their judgment
was
awarded. It was said that the objection was only
tech-
nical, but he thought that great injustice might be done,
as a criminal charge against a party ought to be clear and
distinct. In the several cases which had been referred to,
the offences charged in the various counts of the indict-
ments were in effect the same ; and the objection, there-
fore, would not have applied to them. Judgment, then
having been pronounced upon an indictment generally,,
parts of which indictment were now held to be bad, it
could not, in his opinion, be affirmed by their lordships.
It was not supported by the reasoning and arguments
that had been adduced, and he should therefore oppose
the motion.

Lord COTTENHAM said, that after the fullest conside-
ration, he had come to the conclusion that the opinion
expressed by the majority of the learned judges was wrong.
He had formed his opinion early in the argument, and had
heard no reason given why he should change it. The
noble and learned lord examined at length the various
cases upon the point of the indictment containing some
defective counts, and expressed his opinion that on that
ground the judgment, having been pronounced upon the
indictment generally, was erroneous.
Lord CAMPBELL, after stating his opinion that the in-
dictment contained some good counts, that the plea in
abatement was bad, and the continuance of the trial legal,
addressed himself to the question of the challenge to the
array. The parties ought not to have been tried by a jury
struck from the defective list, but on the challenge the
panel ought to have been quashed. On that point, how-
ever, after the opinion of the learned judges, he should
have hardly felt justified in voting for a reversal of the
judgment ; but agreeing with Mr. Justice Coltman and
Mr. Baron Parke in their opinion on the point of the
judgment having been given generally upon the indict-
ment, notwithstanding the defective counts, he thought
that the judgment could not be sustained. The noble and
learned lord concluded by moving that the judgment he
reversed.
The question having been put by the Lord Chancellor,
Lord WHARNCLUCFE recommended such of their lord-
ships as were not learned in the law, and had not heard
the whole case, to abstain from voting, on the ground that
their voting might lessen the authority of their lordships'
house as a court of justice.
Lord BROUGfIAM, lamenting the decision of his noble
and learned friends, agreed in the recommendation of the
noble lord.
The lay lords accordingly retired behind the woolsack.
The amendment of Lord Campbell was then put, and
carried in the affirmative.
The judgment of the court below therefore stands re-
versed.

[Some slight misunderstanding appears to exist in re-
ference to some of the Judges consulted on this important
occasion. The general inference drawn is, that those
Judges who were absent were adverse to the decision of
the court below. This, however, is not the fact. Mr.
Justice Erskine sent in a written opinion, concurring in
the views of Lord Chief Justice Tindal, while the other
absent judges, >lr. Justice Cresswell, and Mr. Baron
Rolfe, and the Lord Chief Baron, Slr F. Pollock, (who
left the House of Lords immediately after giving his opi-
nion in Gray v. the Queen,) took no part in the proceed-
ings of O'Connell v. the Queen, in consequence of not
having been present at the arguments on the writ of
lerror. Mr. Justice Coleridge wrote a letter to Lord Den-
man, expressing himself of the same opinion as his lord-
ship on the right of the traversers to challenge the jury.]