Blackwood's Edinburgh Magazine, Volume 56, Number 349, November, 1844. Various
by both the Lord Chancellor and Lord Wharncliffe, and Lords Brougham and Campbell – the Lord Chancellor finally put the question: —
"Is it your lordships' pleasure that this judgment be reversed? – As many as are of that opinion, will say 'Content.' As many as are of a contrary opinion, will say 'Not Content.'"
"Content!" exclaimed Lords Denman, Cottenham, and Campbell.
"Not Content!" said the Lord Chancellor and Lord Brougham.
Lord Chancellor. "The Contents have it. The judgment is Reversed."
The instant after these pregnant words had been uttered, there was a rush of persons, in a state of the highest excitement and exultation, towards the door; but the lords calmly proceeded to give judgment in a number of ordinary appeal cases. The Attorney-General for Ireland, who had been watching the whole of the day's proceedings with close attention, heard the result with perfect composure; but as several portions of the judgments of Lords Denman, Cottenham, and Campbell were being delivered, a slight sarcastic smile flitted over his features. As we have mentioned him, let us take this opportunity of bearing testimony to the very great ability – ability of the highest order – with which he has discharged his portion of the duty of conducting these proceedings, unprecedented in their harassing complexity and their overwhelming magnitude. He has manifested throughout – 'bating a little irritability and strictness in petty details at starting – a self-possession; a resolute determination; a capability of coping with unexpected difficulty; a familiarity with constitutional law; a mastery over the details of legal proceedings; in short, a degree of forensic ability, which has been fully appreciated by the English bar, and reflects credit upon those who placed him in his arduous and responsible office. In terms of similar commendation we would speak of the Irish Solicitor-General, (Mr Sergeant Green.) Accustomed as we are to witness the most eminent displays of forensic ability, we feel no hesitation in expressing our opinion, that the Solicitor-General's reply at the trial, and the Attorney-General's reply on the motion for a new trial, were as masterly performances as have come under our notice for very many years.
We have thus laid before our readers, with the utmost candour and care, this truly remarkable case; and at a length which, though considerable, is by no means incommensurate with its permanent interest and importance. We believe that we have, in the foregoing pages, furnished all persons, of average intellect and information, with the means of forming for themselves a sound opinion as to the propriety or impropriety of reversing the judgment of the court below. We have given the arguments on both sides with rigid impartiality, and supplied such information, in going along, as will enable the lay reader thoroughly to understand them. This is a question which all thinking persons must needs regard with profound interest and anxiety. If, in the deliberate opinion of the country, the judgments of the High Court of Parliament are habitually, though unconsciously, warped by party and political feelings and prejudices; if, with such views and intentions, they have strained and perverted the law of the land, wickedly sheltering themselves under the unfortunate difference of opinion existing among the judges, those who have been guilty of it will justly stand exposed to universal execration. It is no light matter even to propose such a possibility as that of profligacy or corruption in the administration of justice; above all, in the highest tribunal in the land – the place of last resort for the subject. It is always with pain and regret that we hear, even in the height of political excitement and hostility, the faintest imputation from any quarter on judicial integrity. We have watched this case from first to last; and especially examined over and over again, in a spirit of fearless freedom, the grounds assigned for reversing the judgment, and the position and character of those by whose fiat that result was effected. We cannot bring ourselves to believe any thing so dreadful as that three judicial noblemen have deliberately violated their oaths, and perpetrated so enormous an offence as that of knowingly deciding contrary to law. Those who publicly express that opinion, incur a very grave responsibility. We are ourselves zealous, but independent supporters of the present government; we applaud their institution of these proceedings; no one can lament more bitterly than we do, that O'Connell should, like many a criminal before him, have escaped from justice through a flaw in the indictment; yet with all this, we feel perfectly satisfied that the three peers who reversed the judgment against him, believed that they were right in point of law. When we find so high an authority as Mr Baron Parke – as far as politics are concerned, a strong Conservative – declaring that he cannot possibly bring himself to concur in opinion with his brethren; that another judge – Mr Justice Coltman – after anxious deliberation, also dissents from his brethren; and when we give each of these judges credit for being able to appreciate the immense importance of unanimity upon such a case as the present, had it been practicable – can it seem really unreasonable or surprising, that a corresponding difference of opinion should exist among the peers, whose judicial duty it was to decide finally between the judges? It is, certainly, a matter calculated to attract a moment's attention, that the judgment should have been reversed by the votes of three peers who concur in political opinion, and opposition to the government who instituted the prosecution. But in fairness, put another possible case. Suppose Lord Abinger had been alive, and had concurred with the Chancellor and Lord Brougham, would not another class of ardent partisans as naturally have remarked bitterly upon the coincidence of opinion between the peers whose three voices concurred in supporting the judgment of the court below?
While we thus entirely exonerate Lords Denman, Cottenham, and Campbell from all imputation of intentionally giving effect to party and political bias, it is difficult to suppose them, or any other peer, entirely free from unconscious political bias; but in the nature of things, is it not next to impossible that it should be otherwise, in the case of men who combine in their own persons the legislative and judicial character, and in the former capacity are unavoidably and habitually subject to party influences? When a Judicial question is under consideration, of such extreme doubtfulness as almost to justify a vote either way, (we must deal with men and things as we find them,) can it excite great surprise, if even in the most honourable minds a political bias should unconsciously evince its presence, and just turn the scale?
But here the case has turned upon one single point of the purest technicality, which the House of Lords has deemed sufficient to cause a reversal of the judgment of the court below; and the question is, have they done rightly? Are they right or wrong in point of strict law? In the language of Mr Justice Williams – the objection raised in behalf of the traversers "is purely of a technical nature, and to be examined in the same spirit of minute and exact criticism in which it was conceived."14
The dry question, then, is this: Is it a rule, a principle, a custom, of English law, that one good count will sustain a general judgment upon a writ of error in a criminal case, although there should be also bad counts in the indictment? Is that a "custom or maxim of our law," or is it not? First, then, how is this to be ascertained? The illustrious commentator on the laws of England, Mr Justice Blackstone,15 shall answer: —
"Established customs, rules, and maxims, I take to be one and the same thing. For the authenticity of these maxims rests entirely upon reception and usage; and the only method of proving that this or that maxim is a rule of the common law, is by showing that it hath been always the custom to observe it. But here a very natural and very material question arises: how are these customs or maxims to be known; and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositaries of the laws —the living oracles, who must decide in all cases of doubt, and are bound by an oath to decide according to the law of the land."
These judges were appealed to by the House of Lords upon the present occasion; and by an overwhelming majority "distinctly, clearly, and decidedly" declared that the rule in question was a rule of the English law. They had heard all the arguments calling its existence in question which Lord Denman, Lord Cottenham, and Lord Campbell had heard; they were in the daily and hourly administration of that branch of the law with reference to which the question arose; they took ample time to consider the matter, and deliberately affirmed the existence of the rule, and the valid grounds on which it rested. The highest legal authority in the land, the Lord Chancellor,
Opinions of the Judges, p. 19.
Vol. I., pp. 68-9.