Various - Blackwood's Edinburgh Magazine, Volume 56, Number 349, November, 1844

To return, now, to the course of proceedings in the present instance.

After desperate but unsuccessful efforts had been made, in the ensuing term, to disturb the verdict, the last step which could be resorted to in order to avert the sentence, was adopted – viz., a motion in arrest of judgment, on the main ground that the indictment disclosed in no part of it any indictable offence. It was expressly admitted by the traversers' counsel, in making the motion, that if "the indictment did disclose, with sufficient certainty, an indictable offence in all or any of its counts, the indictment was sufficient;" and it was then "contended, that not one of the counts disclosed, with sufficient certainty, that the object of the agreement alleged in it was an indictable offence." The court, however, was of a different opinion; and the Chief-Justice, in delivering his judgment, thus expressed himself – "It was boldly and perseveringly urged, that there was no crime charged in the indictment. If there was one in any count, or in any part of a count, that was sufficient." So said also Mr Justice Burton – "We cannot arrest the judgment, if there be any count on which to found the judgment" – the other two judges expressly concurring in that doctrine; and the whole court decided, moreover, that all the counts were sufficient in point of law. They, therefore, refused the motion. Had it been granted – had judgment been arrested – all the proceedings would have been set aside; but the defendants might have been indicted afresh. Let us once more repeat here – what is, indeed, conspicuously evident from what has gone before – that at the time when this motion in arrest of judgment was discussed and decided in the court below, there was no more doubt entertained by any criminal lawyer at the bar, or on the bench, in Ireland or England, that if an indictment contained one single good count it would sustain a general judgment, though there might be fifty bad counts in it, than there is of doubt among astronomers, or any one else, whether the earth goes round the sun, or the sun round the earth. Had the Irish Court of Queen's Bench held the contrary doctrine, it would have been universally scouted for its imbecility and ignorance.

Having been called up for judgment on the 30th May, in Trinity term last, the defendants were respectively sentenced to fine and imprisonment, and to give security to keep the peace, and be of good behaviour for seven years; and were at once taken into custody, in execution of the sentence. They immediately sued out writs of error, coram nobis – ( i. e. error in fact , on the ground that the witnesses had not been duly sworn before the grand jury, nor their names authenticated as required by statute.) The court thereupon formally affirmed its judgments. On the 14th June 1844, the defendants (who thereby became plaintiffs in error) sued out of the "High Court of Parliament" writs of error, to reverse the judgments of the court below. On the writ of error being sued out, it became necessary, as already intimated, to enter the findings of the jury, according to the true and legal effect of such findings, upon the record, which was done accordingly – the judges themselves, it should be observed, having nothing whatever to do with that matter, which is not within their province, but that of the proper officer of the court, who is aided, in difficult cases, by the advice and assistance of counsel; and this having been done, the following ( inter alia ) appeared upon the face of the record: – The eleven counts of the indictment were set out verbatim ; then the findings of the jury, (in accordance with the statement of them which will be found ante ;) and then came the following all-important paragraph – the entry of judgment – every word of which is to be accurately noted: —

"Whereupon all and 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 6 Comyn's Digest , title Pleader , 3 B. 18. 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 advise 7 7 This is the proper expression. See M'Queen's Practice of the House of Lords, p. 256. "They are summoned for their advice in point of law , and the greater dignity of the proceedings" of the Lords. – ( Blackst, Comm. p. 167.) 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: —