Sei'T. 7,] 



THE NEWSPAPER. 



[1844. 





would not be the case ? The chairman expressed Lis 



' ■ n to ihat effect, and Mr. Gordon then consented to 



°^thdra^ the resolution. Mr. M'Nevin, Rev. Mr. 



O'Reilly, General tlooney, and Town- Councillor Rtiliy 



With respect to the 3d question, whether there was any sufficient 

 ground for reversing the judgment bv reason of any defects in the 

 indictment, or of the rinding of the jury, or the entry of the finding, 

 there existed a difference of opinion amongst the Judges, and he 

 therefore stated 'only his own individ opinion upon this question. 



YlZZLiA the meeting; after which Mr. Dillon Brown, I The learned Chief Justice then entered very minutely into the 

 fcdu jCU two , , s ' r .1 _ ,n.i_ l. .r.i »••«._ legal grounds of his conclusion, that the tudemrnt was irreversihle 



\l P. announced the rent forthe 13th week of thecaptivity 



t bc735'' The Repeal Papers still advert to the prospect 



of a war between England and France, and the Freeman 

 last week had a remarkable article, headed " A New 

 Battle Ground for Europe," in which it speculated on 

 the possibility of an invasion of England. It says— 

 C1 g a ,,posea French army landed at Hastings, what is to stop 

 its march to London? There are no towns to take, no 

 fortresses to mask. It may be pleaded that England has 

 armies to oppose the landing and the march. She has 

 not Ihere are no troops in England to oppose 100,000 

 Frenchmen. There are not in the entire of England more 

 than 40,000 troops, and of these not two-thirds could be 

 moved against an invading army. But England has inhabi- 

 tants ; organise the mining districts — arm the manufactur- 

 ing ! Even if the inhabitants of both were the most unre- 

 flecting supporters of present systems, before arms could 

 be placed in their hands, and they trained to the use of 

 them, ha!f England would be overrun. In all human 

 calculation, an arar.y of Frenchmen in England would 

 occupy London almost without a blow. From the me- 

 tropolis the route to Birmingham and Manchester, to 

 York and Leeds and Sheffield, is obvious and easy, and 

 Liverpool affords at once an outlet for debarkation, and 

 a fit object of attack. If such an event should occur — 

 and who shall say that its occurrence, aad at no distant 

 period, is impossible? — where would be the wealth, the 

 commerce, the manufactures of England ? Where her 

 colonies ? — where her power ? No wonder then that Eng- 

 land should cread a rupture with her neighbour, France. 

 No wonder she should be forbearing — nay, long-enduring. 

 Let a war but commence in Europe, and England will 

 be the battle-ground. In that case she must again pro- 

 claim her incapacity to protect Ireland. But we can have 

 no anxiety for this country; we should then, as in '82, 

 unite for the protection of our native land. Let a French 

 force but threaten England, not invade her, and the le- 

 gislative independence of Ireland is un fait accompli. 

 England must concede— nay, press upon her — an inde- 

 pendent vitality to give her the capacity for an independ- 

 ent defence."— Father Mathew recently paid a visit to 

 Mr. O'Connell and his fellow-prisoners, which has given 

 rise to some misconception in regard to the reverend 

 gentleman's views on the subject of Repeal. In a letter 

 to Dr. Sheil on this subject, Father Mathew says : "My 

 late visit to Dublin was the first since the imprisonment 

 of Mr. O'Connell and the other gentlemen. The former 

 has honoured me with his friendship for more than 20 

 years, and the latter for six years. Three of those, 

 Messrs. Gray, Ray, and Duffy, are faithful teetotallers. 

 Ntt to visit such individuals in prison would be culpable 

 in the extreme, and an act of political partisanship. As 

 to Mr. Smith O'Brien's repeal pledge, I candidly say I 

 approve of it, so anxious am I to put a stop to intem- 

 perance. Such is my aversion to the use of intoxicating 

 drinks, from a conviction of its danger, that I would 

 exult in its being abandoned by any, or by every one even 

 for a day. Mr. Smith O'Brien's pledge does not make 



a TtV teetotaller or a member of" our^ glorious societv, 

 and 1 lave no connection with it. I thank you for your 

 vindication of my sincerity, and you can do so with con- 

 naence, as I never violated that strict neutrality on politics 

 oa winch I based the total abstinence movement." 



Hous 



Hatu. 



~0 P °,x S I ov P np° RDS T WRIT 0F Error-Tub O'Connell Trial 



Monday afW « T * B f UDGKS -— The House of Lords met again on 



opinions of H? V! ? d J° uri »nent, for the purpose of receiving the 



of " The Q,i?o„ TVSS 9 s Jud S e s on the writ of error in the case 



open at a T ( !■"' . c °nnell and others." The doors were thrown 



to 5tran«er, »?w ? after ten o'clock, and the galleries allotted 



**•«»' friend, wlr ? members of the House of Commons or 



too, below thf. h? lramedi ately crowded. The very limited space, 



a u*e and tho L Wa8 soon fil,ei1 b y the counsel engaged in the 



Bishop of LichfMrt* ,r< r ctl >' interested in the proceedings. The 



Learned Jud^, !, ' as J uni °r Bishop, having read prayers, the 



Common PleS-uTJ 6 £ aIled in ' and the Lord Chief Justice of the 



tered, and took tw Lord Chief Baron of the Exchequer en- 



°n two benches «„ Seats to S ether at the top of the clerks' table. 



other on the Onnn v° n the Ministerial side of the House and the 



were present Barm u' Sat tIie remainder of the fudges. There 



Sf 50 ", Cbltman \v?n ' Gurne y> an d Alderson, Justices Pat- 



Peers present vZl it" 1 ** Wi ghtman, and Maule. Among the 



pelawarr. Strand , « Duke of Cambridge, Lords Dalhousie, 



•*"■. Cot ten h am n Redesd »le, Beaumont, Brougham, Camp- 



of lh e Law Lords arT"^"' Boston > and Tankerville. Before each 



Judicial business nf ?£ i Waa u,aced > as is the custom during the 



10 time, took note. r\ " 0use > anti every one of them, frem time 



F^^ded. r r , R 01 the decisions of the different Judges as thev 



,n 8 the course at f ,°"S ham seemed especially attentive, and dur- 



?* d ^orts to Jh\ *. y sent several times for various statutes 



i a . v,I, S taken lvs I -„♦ .i he ke P e referring. The Lord Chancellor 



2?. 100 * interest whirl I l le Jud & es S^ve their opinion on a case of 



^ m .dal then nrorpr !L if been referred to them. Lord Chief Justice 



?• ^e Queen ' tJ. f State his °P illi( >n i" the case of " O'Connell 



* n .the indictment «• • question was, whether any of the counts 



•Piracy two or mJ IT bad iu law - To constitute the crimeof con- 



J2?J f ' an d the Ln R V!r P . e , rson i must a 8ree to do a thing unlawful in 



s should agree to- 



count objected to 



»» m ■"•-"wunea a h q « •. „„ld not be objected 



I?, lJIe galact. \v\\h\ aeftmte charge against the defendants to do 



f agreed that therdw ?? t0 the 6lh and7tn counts ' the Jud - es 

 pendants eoniSS -'L state the i,le S al purpose fer which the 

 2*»n that the S. fen i* 1 ? suf,lc icnt certainty to lead to the con- 

 2S iM intiinidatfmi" ? ,nte '">ed to do an illegal act; forthe 





r»j9*%mi iorcc were not sufficiently 



e f* 1 ***, ea J Sated ln the 8th - fJth > ™ d 10th counts were 



Jj ft" at to fi trt J!!?? ° irtnce ***** a v:olatio » ° f *• ,aw ' 

 ?nd1// h C0 ^ts Veff U SU0 1 n lhe - v "*'* oi opinion, that the Gth 

 2fi lment *>uld not i d in law > and « they had stood alone the 

 fif? din * of t», e r r 8U1 ? orte d- On the second branch, as 

 Sfe W^iAn^^ n U *> 2d « S* t and 4th counts, the 

 entr y of the finding? U that lhe lindin ^ <>'* the jury, and the 



c on these counts, were not supportable iu law. 



legal grounds of his conclusion, that the judgment was irreversible 

 on the ground of the four defective count he 1st, 2d, 3d, and 

 4th). The judgment proceeded on the good counts only, and if so, 

 the whole difficulty was at an end. With regard to the second 

 branch of the question, he was of the same opinion, and generally 

 he was of opinion that there was no sufficient ground for reversing 

 the judgment by reason of any defects in the indictment, or in the 

 finding, or the entry of the finding, of the jury. The Judges all con- 

 curred in opinion that there was no sufficient ground for reversing 

 the judgment on the matter of the plea in abatement. On the 5th 

 question, as to the continuation of the trial, which it had been 

 objected was conditional, the Judges were of opinion that the 

 order was perfectly legal, and that the trial was properly con- 

 tinued, and that this question should be answered in the negative. 

 With respect to the 6th question, whether there was any nil nt 

 ground for reversing the judgment because of the Court's over- 

 ruling or disallowing the challenge of array, they were of opinion 

 that the sheriff had not acted improperly, or illegally, and no 

 object could have been obtained if the challenge had been allowed, 

 for the jury must have been chosen from the same book, and the 

 jury might have been again objected to, and so on Mies quotie*, 

 and there would thus be no trial at all. The Judges, therefor 

 answered this Question in the negative. The next question was, 

 Did any ground exist for reversing the judgment by reason of any 

 defect of entering the continuances from the day of trial to the 

 15th of April 2 The Judges upon this point were unanimously 

 of opinion that there was no ground under tl tatute, rod that it 

 was in effect a Parliamentary continuance of the cause, and that 

 no discontinuance did In fact take place. On the 8th question, the 

 Judges were of opinion that there was no ground for reversing or 

 varying the judgment on account of the sentences pronounced, 

 with regard to the recognizances and terms of imprisonment. The 

 only difficulty was in the form of the order of entry of the recog. 

 nizaiu-es and of the terms of imprisonment. On the 9th question, 

 whether there was any ground to reverse the judgment on account 

 of the judgments on the ; nments of error coram nobis, tl 

 Judges thought that, under the statute, the decision of the Court 

 in Ireland might he supported, though, if the matter were rrs in- 

 tegra, a question might perhaps be raised ; but upon a reasonable 

 construction of the statute, and the practice of the Court, they 

 thought the objection had been answered, and that there was no 

 ground for reversing the judgment on this point. The 10th ques- 

 tion was, whether the judgment should be reversed by reason of its 

 not containing any entry as to the verdicts of acquittal, and the 

 Judges were all of opinion that it should be answered in the nega- 

 tive. With respect to the 11th and last question, he (the learned 

 Chief Justice) gave only his own opinion. The question w 

 Whether, the entry on the record being that the defendants should 

 be fined and imprisoned " for the offences afor id," that of itself 

 is a ground for reversing the judgment ? He took the words, 

 "the offences aforesaid," in their ordinary sense, meaning the 

 offences laid in the 5th, 8th, and subsequent counts, and contained 

 in the good findi: , and he was of opinion that this question 

 should be answered altogether in the negative.— Mr. Just: 

 Pattesonthen delivered his opinion on the 3d and Illh question*, 

 to the effect that the badness of the finding on some of the 

 counts did not affect the verdict and judgment upon the whole of 

 the indictment. There was a case in which a finding upon a single 

 count, when all the rest were bad, was supported upon a writ of 

 error, Reg. v. Owen, 2 Barn. & Aid. 7">. Assuming that the 

 judgment would have been bad upon some counts by reason of 

 the defective finding upon some counts, still the whole judgment 

 would be good.— Mr. Justice Maule followed, concurring with tae 

 Chief Justice and Mr. Justice Patteson.— Mr. Justice Co'tman 

 then delivered his opinion, to the effect that, with respect to the 

 3d question, there was sufficient ground for reversing the judg- 

 ment; and on the llth question he considered that in an indictment 

 of 3 counts, A, B, and C, if A and B were go >d, and C bad, a Judj 

 ment against a defendant, though confined to counts A and B, 

 ought to be reversed on error. If the defendant were to be tried 

 again for the offence laid in count C, how could the Court know 

 the fact of autrefois acquit so as to prevent the party being tried 

 again for the same offence? According to his opinion, ifone count 

 in the indictment was bad, the judgment was erroneous, because 

 it did not state on what counts the sentence was passed.— Mr. 

 Justice Williams said, the difference of opinion substantially arose 

 on the llth question. There was no difference on the merits, and 

 there was no doubt that there were good counts in the iniictm 

 which would sustain an exceptionable judgment. The objections 

 in the writ were purely of a technical nature, and must be tech- 

 nically treated. The difference upon the llth question had been 

 put by Mr. Justice Coltman, as whether, where, of three counts in 

 an indictment, two were bad, a general verdict and general judg- 

 ment could or could not be sustained. The learned judge 

 cited various cases, and urged reasons for an opposite conclusion 

 to that of his learned brother, and for agreeing with the Chief 

 Justice that there were counts which would sustain the judgment 

 pronounced " for the offences aforesaid," which were not the offence 

 contained in the counts bad inlaw, or in the defective findings, but 

 on those good in law. — Mr. Baron Gurney concurred with the 

 Chief Justice and the other Judges who took the same view of the 

 3d and llth questions.— Mr. Baron Alderwn felt very strongly 

 that an opposite decision of their Lordships to that of the * it 

 below would be productive of much mischief; and he rejoiced, 

 therefore, that, in this technical question, he agreed with so large 

 a majority of his learned brethren. It was the universal belief and 

 impression of the profession that a judgment upon an indictment 

 with bad and good counts was not reve ; such a judgment 



was given upon that part of t lie offence which 5 indictable. It 

 was easy by the exercise of a poetical imagination to suggest pos- 

 sible inconveniences; the law, however did not prrfess to be a 

 perfect system, but practically no evil resulted from the course in 

 question, which, though it might be unreasonable in civil cases, 

 was reasonable and just in criminal cases. The Court always 

 gives judgment on the good counts ; a count that is bad is bad be- 

 cause it charges no offence, and the Court below in this case pro- 

 nounced judgment on the " offences aforesaid"— that is, the 

 offences contained in the good counts alone.— Mr Baron Parke 

 said, he regretted that, after the best consideration, he could not 

 bring himself to agree with the majority of his learned brethren, 

 on the 3d and llth questions. Where an indictment consisted of 

 several counts bad and good, each ought to have been brought to 

 a decision and finally disposed of upon the record. There was a 

 prevailing opinion that one good count in an indictment woufi 

 support a judgment, but it appeared to him to have grown up 

 without adequate grounds. The defendants ought, therefore, ii: 

 his opinion, on the face of the record, to be put in the same situation 

 as if each count had been a distinct indictment. — Mr. Justice 

 Coleridge was prevented by illness from being present, but Lord j 

 Chief Justice Tindal stated that that learned Judge had sent his 

 written opinion, in which he expressed his concurrence with the 

 majority of his learned brethren. The majority of the opinions of 

 the ges (nine in number) were thus against the m i error. 

 The House was then adjourned until Wednesday. 



Jcdgmknt. — Rkversal opttik Sentknck. — On Wednesday 

 the House met to pronounce judgment. The Lord Cu wckllor 

 first proceeded to deliver his opinion. Wi en the writ of error 

 was first heard at their Lordshi, bar, it occurred to him, as 

 no doubt to many of their Lordah . that to avoid all possible 

 suspicion, or pretension of suspicion, of political bias, the 

 *nceofthe leaned Judges should be requested. Those 



trued ptl us had patiently given their assistance, p.nd 

 now de Bred their opinion. Except upon one punt their 

 opinion was unanimous, and upon that point the diasent of the 

 minority wras expressed with much doubt and hesitation. 



Unless therefore their Lordships could believe that the opinio 

 of the majority of the Judges was founded in palpable error, 

 the judgment of the Court below ought to be affirmed. The 

 noble and learned Lord then stated the nature of the question. 

 By the law of England a general judgment, notwithstanding 

 any defective count in the indictment, was sufficie That 



was the lule in criminal cases, laid down by Lord M;- -eld in 

 clear and comprehensive terms. It was concurred in by some 

 of the a ble>t Judges that ever adorned the bench, and until in 

 this cas e he had never heard it questioned. It was stated that 

 the rule applied only to motions in arrest of judgment. He 

 was satisfied there was no ground for that exception. But it was 

 said that otherwise it could not be shown what portion of the 

 judgment might be awarded in respect of the defective counts. 

 1/nless there was proof to the contrary, it arast be assumed that 

 the judgment was based upon the valid part of the indictment; 

 but on the face of the record in this case was there any ground 

 forthe objer n ? The judgment was, that the party the 

 ''offences aforesaid" be fined and imprisoned. Some of the 

 c unts were bad because the offence was not clearly sta'ed. 

 How, then, could it be said that the judgment was based upon 

 those counts which stated no offence? Such a cone :i 



would be an incongruity and inconsistency which their Lord- 

 ships would not sanction. The same reason would apjly to 

 those counts upon which the findings had been wrongly entered. 

 They were a nullity. Upon the face of the i <rd, therefore, 

 there was no defect wl ver. The noble and learr lord then 

 referred to various authorities in support of that opii i. They 

 were cases of motions in arrest of judgment; but it was said 

 there was a distinction betw< en mi ns in arrest i figment 

 and writs of error. He denied thut < inction. Ifowi r, in 

 writs of error he might refer to several authorities ot m rn 

 date, where the same object; lay upon the surface, but was 

 never taken, 'j uciple which he had stated waa t r . rted 



by authorities from the time of Ix>rd Holt downward] it had 

 been considered as free from all doubt, and established as law. 

 But it was urged that a difficulty would arise from n- 



guishing the counts, in the case of a party pleading autrefois 

 acquit. There was no ground for such objection, for the plea 

 must he a plea of acquittal of the corpus delicti, and that would 

 not apply here. Tntn it was said there was no decision upon 

 this poiut. But was not that a stronger \ ( that the »■ waa 

 as he had stated ? It was usage, ^ctice, and re( j that 



constituted the law, and this principle had never b hern 



doubted. Even the learned Baron who dissented admitted that 

 he now heard it forthe first time. Nothing, then, but a case 

 clear of all doubt could justify their Lordships in d fferingfrom 

 the majority of the learned Judges upon this objection. He 



would refer briefly to another p iut, the challenge to the array 

 of the jury, because, although the other Judges wore unani- 

 mously against the objection, his noble friend the Lord Caief 

 Justice entertained a strong opinion in its favour. There was 

 but one principle upon which that challenge had ever been 

 allowed— either the position or conduct of the sheriff. If he 

 were not indifferent, or were negligent, that was a ground of 

 challenge ; but in this case nothing of the kind was imputed by 

 the record. In making up the jury-bo k for so large a city at 

 Dublin, it was almost impossible that some mistake sh »t 



arise; and if this objection were allowed it would be of con- 

 stant occurrence. The proper remedy, too, was not by chal- 

 lenge. Upon this point he ent. rained no doubt. As to the 

 question of the continuance of the trial, the opinion of the 

 learned Judges was complete, and it was therefore superfluous 

 for him to enter upon it. The plea of abatement was also in 

 his opinion insufficient. He therefore called upon their Lord- 

 ships to affirm the opinion of the majority oi the learned Judges, 

 in opposition to the doubtful and hesitating opinions expressed 

 by two highly distinguished members of that learned body. The 

 noble and learned Lord then moved that the judgment of 

 the Court below should be affirmed.— Lord Brougham followed. 

 The majority of the learned Judges had upon the questions 

 relative to the defective counts given t lear and decided 



opinion in favour of the validity of the judgment, although 

 given generally upon the indictment. Two learned Judges had 

 dissented from that opinion, but Mr. Baron Parke was the only 

 one who had entered at length into his objection* to it*, and 

 even that learned Judge had expressed but a doubting and 

 hesitating opinion, and concluded by saying that be doubted 

 whether he ought not to adnse their Lon >s to hftirm the 

 question— a very incorrect expression, for the learned Judges 

 were there to deliver their opinion, not to off« k advice. In 



the opinion, however, expressed by the irajority upon the point 

 in qu on lie most entirely concurred. Upon the 6th and "th 

 counts, upon which the learned Judges were unaninv us, he 

 could not agree with their opinions, or perhaps he ough . .ike 

 the learned Baron, only to express a di.ubt or their correctness. 

 The noble Lord then entered at length into the c osideration 

 of the 3d and llth questions, upon which, as he had stated, his 

 opinion went with the majority of the learned Judges. It was 

 said that there was no decision upon the point; but how much 

 of the law rented on the same foundation, for this simple rea- 

 on, that it was so clear that it could not J>e questioned ? After 

 having referred to the various authorities, the n< ble Lord said 

 he found himself in this predicament :— The learned Judges 

 were unanimous on the merits of the case:— that a yrave 

 offence, punishable by law, had been perpetrated, "they agreed; 

 but bad counts happened to be found in the indictment — 

 elaborate and leaned arguments had been urged at the bur— 

 the learned Judges had deliberated upon them, and seven out 

 of nine had dec. d acainst the writ of error upon that objection. 

 From whom, then, were they totake their statement of the law t 

 From the majority, who had given their clear and unhesitating 

 opinion, or from the two who expressed them vet with doubt 

 and hesitation i There was no dictum in support of the opinion 

 of the latter, and he therefore thought it the better course to 

 concur with the majority. The next point was the challenge 

 to the array. The real question was, whether the jury were 

 well selected, for that was requisite to the proper construc- 

 tion of the Court. The right to challenge was on ihe ground 

 of indifference or misconduct on the part ot the returning 

 officer. There was no imputation of that kind on the record. 

 If the objection were good for many names having been omitted, 

 it would be good t r one, and it would be going a great way to 

 aay that on such aground the jury was improperly empanelled. 

 On that point, therefore, as on the remaining points, he agreed 

 with the majority of the learned Judges.— L >rd Dkvman then 

 delivered his opinion. He would first refer to the overruling 

 of the challenge to the array, not only because it was prelimi- 

 nary in the proceedings, hut because it was a matter of such, 

 extreme importance as not to admit of any exaggeration of the 

 effects which it might hereafter produce in lhe administration 

 ol justice. If such a practice were allowed, a trial by jury, 

 instead ofbeinga protcetion,would be a mockery, a delusion, and 

 mare. It appeared to him that the challenge to the array on 

 the ground of the omission ot several names ou^httohave 

 been allowed. He thought the principle of the challenge waa 

 not the question whether the Sheriff had d >r wrong, 



but whether the party had had a lawful jury for his trial. Up^J 

 that point he felt so strongly, and waa so entirely unconvinced 

 j by the re zoning of the learned Judges in Ireland, that, being 

 i nable as a Peer to attend the consuttatio. his brother Judges, 

 wrote to Mr. Justice Coleridge, who was also prevented from 



attending, on the subject, and from tbe answer of that ■ J^rned 



Judge he felt himself entitled to say he c ot stand alone ftj 

 his opinion. In the judgment he had formed, be **> ■■ 

 broth* r Colerid thought that the duty or tne J«" r> lirt 



did not rest now as formerly with the She: waa .by 



the late statute divided between the tax- ?^^ R Q ^J 



Sessions, i.e., the Recorder, and the J ? "^SlS 



had a judicial office to perform, and it «e< d to him aad 1 

 learned brother that in this case, after the Keeoxdei *uu decided 



