Blackwood's Edinburgh Magazine, Volume 56, Number 349, November, 1844. Various
singular the premises being seen and fully understood by the court of our said Lady the Queen now here, it is considered and adjudged by the said court here, that the said Daniel O'Connell, for his offences aforesaid, do pay a fine to our Sovereign Lady the Queen of two thousand pounds, and be imprisoned," &c., and "enter into recognisances to keep the peace, and to be of good behaviour for seven years," &c. Corresponding entries were made concerning the other defendants respectively.
This Writ of Error, addressed to the Chief-Justice of the Queen's Bench in Dublin, reciting (in the usual form) that "manifest errors, it was said, had intervened, to the great damage" of the parties concerned; commands the Chief-Justice, "distinctly and plainly, to send under his seal the record of proceedings and writ, to Us in our present Parliament, now holden at Westminster; that the record and proceedings aforesaid having been inspected, we may further cause to be done thereupon, with the consent of the Lords Spiritual and Temporal, in Parliament assembled, for correcting the said errors, what of right, and according to the law and customs of this realm, ought to be done." The writ of error, accompanied by a transcript of the entire record of the proceedings below, having been duly presented to the House of Lords, then came the "assignment of errors," prepared by the counsel of the plaintiffs in error – being a statement of the grounds for imputing "manifest error" to the record; and which in this case were no fewer than thirty-four. The Attorney-General, on the part of the crown, put in the usual plea, or joinder in error – "In nullo est erratum;" Anglicè, that "there is no error in the record." This was in the nature of a demurrer,6 and referred the whole record – and, be it observed, nothing but the record – to the judgment of the House of Lords, as constituting the High Court of Parliament. It is a cardinal maxim, that upon a writ of error the court cannot travel out of the record; they can take judicial notice of nothing but what appears upon the face of the record, sent up to them for the purpose of being "inspected," to see if there be any error therein.
The judges of England were summoned to advise7 the House of Lords: from the Queen's Bench, Justices Patteson, Williams, and Coleridge, (Lord Denman, the Chief-Justice, sitting in judgment as a peer;) from the Common Pleas, Chief-Justice Tindal, and Justices Coltman and Maule; from the Exchequer, Barons Parke, Alderson, and Gurney. Lord Chief-Baron Pollock did not attend, having advised the Crown in early stages of the case, as Attorney-General: Mr Justice Erskine was ill; and the remaining three common law judges, Justices Wightman, Rolfe, and Cresswell, were required to preside in the respective courts at Nisi Prius. With these necessary exceptions, the whole judicial force – so to speak – of England assisted in the deliberations of the House of Lords. The "law" peers who constantly attended, were the Lord Chancellor, Lords Brougham, Cottenham, and Campbell. It has been remarked as singular, that Lord Langdale (the Master of the Rolls) did not attend in his place on so important an occasion, and take his share in the responsibility of the decision. Possibly he considered himself not qualified by his equity practice and experience to decide upon the niceties of criminal pleading. Several lay peers also attended – of whom some, particularly Lord Redesdale, attended regularly. The appeal lasted for many days, frequently from ten o'clock in the morning till a late hour in the evening; but the patience and attention of the peers and judges – we speak from personal observation – was exemplary. For the crown the case was argued by the English and Irish Attorney-Generals, (Sir W. W. Follett and Mr T. B. C. Smith;) for O'Connell and his companions, by Sir Thomas Wilde, Mr M. D. Hill, Mr Fitzroy Kelly, and Mr Peacock, all of whom evinced a degree of astuteness and learning commensurate with the occasion of their exertions. If ever a case was thoroughly discussed, it was surely this. If ever "justice to Ireland" was done at the expense of the "delay of justice to England," it was on this occasion. When the argument had closed, the Lord Chancellor proposed written questions, eleven in number, to the judges, who begged for time to answer them, which was granted. Seven out of the eleven related to the merest technical objections, and which were unanimously declared by the judges to be untenable; the law lords (except with reference to the sixth question, as to the overruling the challenge to the array) concurring in their opinions. Lord Denman here differed with the judges, stating that Mr Justice Coleridge also entertained doubts upon the subject; Lords Cottenham and Campbell shared their doubts, expressly stating, however, that they would not have reversed the proceedings on that ground. If they had concurred in reversing the judgment which disallowed the challenge to the array, the only effect would have been, to order a venire de novo, or a new trial. With seven of the questions, therefore, we have here no concern, and have infinite satisfaction in disencumbering the case of such vexatious trifling – for such we consider it – and laying before our readers the remaining four questions which tended to raise the single point on which the judgment was reversed; a point, be it observed, which was not, as it could not in the nature of things have been, made in the court below – arising out of proceedings which took place after the court below, having discharged their duty, had become functi officio. Those questions were, respectively, the first, second, third, and last, (the eleventh,) and as follow: —
Question I.– "Are all, or any, and if any, which of the counts of the indictment, bad in law– so that, if such count or counts stood alone in the indictment, no judgment against the defendants could properly be entered upon them?"
Question II.– "Is there any, and if any, what defect in the findings of the jury upon the trial of the said indictment, or in the entering of such findings?"
Question III.– "Is there any sufficient ground for reversing the judgment, by reason of any defect in the indictment, or of the findings, or entering of the findings, of the jury, upon the said indictment?"
Question XI.– "In an indictment consisting of counts A, B, C, when the verdict is, guilty of all generally, and the counts A and B are good, and the count C is bad; the judgment being, that the defendant, 'for his offences aforesaid,' be fined and imprisoned; which judgment would be sufficient in point of law, if confined expressly to counts A and B – can such judgment be reversed on a writ of error? Will it make any difference whether the punishment be discretionary, as above suggested, or a punishment fixed by law?"
The above questions may be stated shortly and substantially thus: – Are there any defective counts in the indictment? Any defective findings of the jury? Any defects in entering the findings? Can judgment be reversed on any of these grounds? If one only of several counts in an indictment be bad; a verdict given of "guilty" generally; judgment awarded against the defendant "for his offences aforesaid," and the punishment discretionary – can judgment be reversed on a writ of error? The whole matter may now, in fact, be reduced to this single question: Can a judgment inflicting fine or imprisonment be reversed by a court of error, because that judgment proceeded on an indictment containing both bad and good counts, and in respect of which some of the findings of the jury were either defective or defectively entered? – Let us now listen to the decision of that venerable body of men, who are, in the language of our great commentator, "the depositaries of the laws, the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land."8 The questions which they had thus to consider, moreover, were not questions of rare, subtle, unusual, and speculative, but of an ordinary practical character, such as they were concerned with every day of their lives in administering the criminal law of the country.
First, then, were there any bad counts in the indictment?
The judges were unanimously of opinion that two of the counts were bad, or insufficient in law – and two only – which were the sixth and seventh counts. They hold positively and explicitly, that the remaining nine counts were perfectly valid.
The Chief-Justice (Tindal) thus delivered this unanimous opinion of himself and his brethren on this point.9
"No serious objection appears to have been made by counsel for the prisoners, against the sufficiency of any of the counts prior to the sixth. Indeed, there can be no question that the charges contained in the first five counts, do amount in each to the legal offence of conspiracy,
This is the proper expression. See
1
Opinions of the Judges, &c. – (Pp. 1-3.)