Blackwood's Edinburgh Magazine, Volume 56, Number 349, November, 1844. Various
gifted, profoundly learned, and perfectly impartial and independent lawyers that ever presided over a court of justice – Sir Nicholas Tindal – seven out of nine of the judges expressed a clear unhesitating opinion, that the third and eleventh questions should be answered in the negative – viz. that the judgment was in no way invalidated – could be in no way impeached, by reason of the defective counts and findings. The two dissenting judges who had been hit by the arguments of the traversers' counsel, were Baron Parke and Mr Justice Coltman – the latter speaking in a confident, the former in a remarkably hesitating and doubting tone. The majority consisted of Chief-Justice Sir Nicholas Tindal, Mr Justice Patteson, Mr Justice Maule, Mr Justice Williams, Mr Baron Gurney, Mr Baron Alderson, and Mr Justice Coleridge.
We have no hesitation in expressing our opinion, that the judgments delivered by this majority of the judges stand on the immovable basis of sound logic, accurate law, and good sense; and lament that our space will not allow us to present our readers with the many striking and conclusive reasonings and illustrations with which those judgments abound. We can but glance at the result– leaving the process to be examined at leisure by those so disposed. The artful fallacies of the traversers' counsel will be found utterly demolished. The first grand conclusion of the judges was thus expressed by the Chief-Justice —
"I conceive it to be the law, that in the case of an indictment, if there be one good count in an indictment upon which the defendants have been declared guilty by proper findings on the record, and a judgment given for the crown, imposing a sentence authorized by law to be awarded in respect of the particular offence, that such judgment cannot be reversed by a writ of error, by reason of one or more of the counts in the indictment being bad in point of law."
The main argument of the traversers' counsel was thus disposed of —
"It was urged at your lordships' bar, that all the instances which have been brought forward in support of the proposition, that one good count will support a general judgment upon an indictment in which there are also bad counts, are cases in which there was a motion in arrest of judgment, not cases where a writ of error has been brought. This may be true; for so far as can be ascertained, there is no single instance in which a writ of error has been ever brought to reverse a judgment upon an indictment, upon this ground of objection. But the very circumstance of the refusal by the court to arrest the judgment, where such arrest has been prayed on the ground of some defective count appearing on the record, and the assigning by the court as the reason for such refusal, that there was one good count upon which the judgment might be entered up, affords the strongest argument, that they thought the judgment, when entered up, was irreversible upon a writ of error. For such answer could not otherwise have been given; it could have had no other effect than to mislead the prosecutor, if the court were sensible at the time, that the judgment, when entered up, might afterwards be reversed by a court of error."
The grand argument derived from the language of the judgment, was thus encountered: —
"I interpret the words, 'that the defendant for his offences aforesaid, be fined and imprisoned,' in their plain literal sense, to mean such offences as are set out in the counts of the indictment which are free from objection, and of which the defendant is shown by proper findings on the record to have been guilty– that is in effect the offences contained in the fifth and eighth, and all the subsequent counts. And I see no objection to the word offences, in the plural, being used, whether the several counts last enumerated do intend several and distinct offences, or only one offence described in different manners in those counts. For whilst the record remains in that shape, and unreversed, there can be no objection in point of law, that they should be called 'offences' as they appear on the record."
Now, however, let us see the view taken of the matter by Mr Baron Parke – a man undoubtedly of acute and powerful mind, as well as accurate and extensive learning. It is impossible not to be struck by the tone of diffidence which pervades his judgment; and it was delivered in a very subdued manner, not usual with that learned judge; occasioned doubtless by the pain with which he found himself, on an occasion of such transcendent importance, differing from all his brethren but one. He commenced by acknowledging the astonishment with which he had heard counsel at the bar question the proposition which he (Baron Parke) had always considered, ever since he had been in the profession, perfectly settled and well established, viz. that in criminal cases one good count, though associated with many bad ones, would, nevertheless, suffice to support a general judgment. But "he had been induced to doubt whether the rule had not been carried too far, by a misunderstanding of the dicta of judges on applications in arrest of judgment."
To enable the lay reader to appreciate the novel doctrine which has been sanctioned in the present case, it is requisite to understand clearly the distinction to which we have already briefly adverted, between a motion in arrest of judgment and a writ of error. When a defendant has been found guilty of an offence by the verdict of a jury, judgment must follow as a matter of course, "judgment being the sentence of the law pronounced by the court upon the matter contained in the record."11 If, however, the defendant can satisfy the court that the indictment is entirely defective, he will succeed in "arresting," or staying the passing of judgment; but if he cannot, the court will proceed to give judgment. That judgment having been entered on the record, the defendant, if still persuaded that the indictment is defective, and consequently the judgment given on it erroneous, has one more chance; viz. to reverse the judgment which has been so given, by bringing a writ of error before an appellate tribunal. Now, the exact proposition for which the traversers' counsel contended was this – that the rule that "one good count will sustain a general judgment, though there are also bad counts in the indictment," is applicable to that stage only of the proceedings at which a motion is made in arrest of judgment; i. e. before the judgment has been actually given, and not to the stage at which a writ of error has been obtained, viz. after the judgment has been actually given.
This proposition was adopted by Mr Justice Coltman; while Mr Baron Parke – for reasons substantially identical with those of Lords Denman, Cottenham, and Campbell – declared himself unable to overthrow it.
As to the "opinion that one good count, properly found, will support a judgment warranted by it, whatever bad counts there may be," Mr Baron Parke said, – "I doubt whether this received opinion is so sufficiently established by a course of usage and practical recognition, though generally entertained, as to compel its adoption in the present case, and prevent me considering its propriety. After much anxious consideration, and weighing the difficulties of reconciling such a doctrine with principle, I feel so much doubt, that I cannot bring myself to concur with the majority of the judges upon this question."
Without for one moment presuming to suggest any invidious comparison, we may observe, that whatever may be the learning and ability of the two dissenting judges, the majority, with Sir Nicholas Tindal at their head, contains some of the most powerful, well-disciplined, long-experienced, and learned intellects that ever were devoted to the administration of justice, and all of them thoroughly familiar with the law and practice in criminal proceedings; and as we have already suggested, no competent reader can peruse their judgments without feeling admiration of the logical power evinced by them. While Mr Baron Parke "doubts" as to the soundness of his conclusions, they all express a clear and decisive opinion as to the existence of the rule or custom in question as a rule of law, and as to its reasonableness, utility, and justice.
The reading of these judgments occupied from ten o'clock on the Monday morning till three o'clock in the afternoon, when the House adjourned till Wednesday; having first ordered the opinions of the judges to be printed. There were a considerable number of peers (among whom was the Duke of Cambridge) present, and they listened attentively to those whom they had summoned to advise them on so great an occasion. Lords Brougham, Denman, Cottenham, and Campbell sat near one another on the opposition side of the House, each with writing-tables before him; and they, together with the Lord Chancellor, appeared to pay close attention to what fell from the judges. The House of Lords on these great occasions presents a very interesting and impressive appearance. The Chancellor sits robed in his usual place, surrounded by the judges, who are seated on the woolsacks in the centre
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