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

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 11 3 Blackstone's Commentaries , p. 395. 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 of the house, all in their full official costume, each rising to read his written judgment. If ever man made a magnificent personal appearance among his fellows, it is Lord Lyndhurst thus surrounded. At the bar of the house stood, or sat, the majority of the counsel engaged on each side, as well as others; and the whole space behind was crowded by anxious spectators, conspicuous among whom were Messrs Mahoney and Ford, (two tall, stout, shrewd-looking men,) the Irish attorneys engaged on behalf of the traversers. They and their counsel appeared a trifle less desponding at the conclusion of Baron Parke's judgment; but the impression was universal that the Chancellor would advise the House to affirm the judgment, in accordance with the opinions of so overwhelming a majority of the judges. No one, however, could do more than guess the inclination of the law lords, or what impression had been made upon them by the opinions of the judges. When therefore Wednesday, the day of final judgment upon this memorable and agitating case, had arrived, it is difficult to describe the excitement and anxiety manifest among all the parties who densely crowded the space between the door and the bar of the House. There were, of course, none of the judges present, with the exception of Mr Baron Rolfe, who, in plain clothes, sat on the steps of the throne, a mere private spectator. There were about a dozen peers on the ministerial benches, including Lord Wharncliffe, Lord Redesdale, Lord Stradbroke, and others; and several peers (including Lord Clanricarde) sat on the opposite benches. Lords Cottenham and Campbell sat together, frequently in communication with each other, and occasionally with Lord Denman, who sat near them, at the cross-benches, busily engaged in referring to books and papers. Lord Brougham occupied his usual place, a little nearer the bar of the House than Lords Cottenham and Campbell; and on the writing-desks of all three lay their written judgments. All the law-peers wore a serious and thoughtful expression of countenance – which you scrutinized with eager anxiety in vain for any sign of the sort of judgments which they had come prepared to deliver. The traversers' leading counsel, Sir Thomas Wilde and Mr Hill, both stood at the bar of the House in a state of very perceptible suspense and anxiety. The Attorney-General for Ireland sat in his usual place – almost motionless, as usual, from first to last – very calm, and watching the proceedings with deep attention, seldom uttering more than a passing syllable to those who sat next to him, i. e. the English Solicitor-General, and Mr Waddington, and Mr Maule of the Treasury. After judgment had been briefly given in Gray's case, a few moments' interval of silence elapsed – the silence of suppressed anxiety and expectation. At length the Lord Chancellor, who had been sitting with a very thoughtful air for a few moments, slowly rose from the woolsack, and advanced to his proper post when addressing the House, viz. at about a couple of yards' distance to the left of the woolsack. Finding that his robes, or train, had in some way got inconveniently disarranged, so as to interfere with the freedom of his motions, he occupied several seconds in very calmly putting it to rights; and then his tall commanding figure stood before you, in all that tranquil grace and dignity of appearance and gesture, for which he has ever been so remarkably distinguished. During the whole time – exactly an hour – that he was speaking, his voice clear and harmonious as usual, and his attitude and gesture characterized by a graceful and easy energy, he never once slipped, or even hesitated for want of an apt expression; but, on the contrary, invariably hit upon the very expression which was the most accurate, appropriate, and elegant, for conveying his meaning. He spoke with an air of unusual decision, and entirely extempore , without the assistance of a single memorandum, or note, or law-book: yet the greater portion of his speech consisted of very masterly comments on a great number of cases which had been cited, in doing which he was as familiar and exactly accurate, in stating not only the principles and distinctions involved, but the minutest circumstances connected with them, as if the cases had been lying open before him! His very first sentence put an end to all doubt as to the conclusion at which he had arrived. These were his precise words – the last of them uttered with peculiar emphasis: – "My lords, I have to move your lordships that the judgment of the court below in this case be affirmed ." He proceeded to compliment the judges on the patient and laborious attention and research which they had bestowed upon the case. "My lords," said he, "with respect to all the points submitted to their consideration, with the exception of one question – for in substance it was one question – their opinion and judgment have been unanimous. With reference to that one question, seven of the learned judges, with the Chief-Justice of the Common Pleas at their head, have expressed a distinct, a clear, and decided opinion against the objections which were urged. Two other learned judges have expressed an adverse opinion. I may be permitted to say – and all who were present to hear them must agree with me – that it was an opinion accompanied with much doubt and much hesitation. I think, under these circumstances, that unless your lordships are thoroughly and entirely satisfied that the opinion of the great majority of the judges was founded in palpable error , your lordships will feel yourselves, in a case of this kind, bound by their decision to adhere to and support their judgment, and act in conformity with it." After briefly stating the only question before them – viz. "whether, there being defective counts in the indictment, and other counts with defective findings on them, a general judgment can be sustained?" – he proceeded, "Your lordships will observe that this is a mere technical question, though, I admit, of great importance – never presented to the judges of the court below, not calling in question their judgment in substance – but arising entirely out of the manner in which that judgment has been entered up, by those whose province it was to discharge that particular duty." He then made the following decisive and authoritative declaration, which all who know the accurate and profound learning and the vast judicial experience of the Chancellor will know how to value. "Allow me, my lords, to say, that it has always been considered as a clear, distinct, and undoubted principle of the criminal law of England, that in a case of this nature a general judgment is sufficient ; and from the first moment when I entered the profession, down to the time when I heard the question agitated at your lordships' bar, I never heard it called in question. I have found it uniformly and constantly acted upon, without doubt, without hesitation. I find it in all treatises, in all text-writers on the subject – not questioned, not doubted, not qualified, but stated broadly and clearly. Now for the first time it has been stated – and Mr Baron Parke himself admits that it is for the first time – that that rule applies only to motions in arrest of judgment. I never before heard of such a limitation. I am quite sure that there is no case to sanction it, no decision to warrant it, no authority to be cited in support of it. I am quite satisfied, after all I have heard on the subject, that there is no ground whatever for the doubt – no ground whatever for the exception now insisted upon. * * * It is not necessary that the judgment should be awarded with reference to any particular count . No such decision can be cited. No one not in the confidence of the judges can tell in respect of what the judgment was awarded, except with reference to the record itself . If there be defective counts, does it by any means follow that the judges, in awarding judgment, appointed any part of it with reference to the defective counts? There is no similarity between the two cases: you cannot reason or argue from one to the other. You must assume, unless the contrary is distinctly shown, that what the judges have done in that respect is right; that the judgment, if there be any part of the record to support it, proceeded upon that part. In writs of error, you are not allowed to conjecture , to decide on probabilities , you must look to the record; and unless the record itself, on the face of it, shows, not that there may have been, but that there has been manifest error in the apportioning of the punishment, you cannot reverse the judgment. You upon conjecture reverse the judgment; and if afterwards you were to consult the very judge by whom it had been pronounced, you might find that he had at the time taken that very point into consideration. You are therefore running the hazard of reversing a judgment on the very grounds which were present to the mind of the judge at the moment when that judgment was pronounced." As to the statement, that judgment was awarded against each defendant "for his offences aforesaid," – thus argued the Chancellor: —