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

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СКАЧАТЬ a reversal of the judgment of the court below; and the question is, have they done rightly? Are they right or wrong in point of strict law? In the language of Mr Justice Williams – the objection raised in behalf of the traversers "is purely of a technical nature, and to be examined in the same spirit of minute and exact criticism in which it was conceived."14

      The dry question, then, is this: Is it a rule, a principle, a custom, of English law, that one good count will sustain a general judgment upon a writ of error in a criminal case, although there should be also bad counts in the indictment? Is that a "custom or maxim of our law," or is it not? First, then, how is this to be ascertained? The illustrious commentator on the laws of England, Mr Justice Blackstone,15 shall answer: —

      "Established customs, rules, and maxims, I take to be one and the same thing. For the authenticity of these maxims rests entirely upon reception and usage; and the only method of proving that this or that maxim is a rule of the common law, is by showing that it hath been always the custom to observe it. But here a very natural and very material question arises: how are these customs or maxims to be known; and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositaries of the laws —the living oracles, who must decide in all cases of doubt, and are bound by an oath to decide according to the law of the land."

      These judges were appealed to by the House of Lords upon the present occasion; and by an overwhelming majority "distinctly, clearly, and decidedly" declared that the rule in question was a rule of the English law. They had heard all the arguments calling its existence in question which Lord Denman, Lord Cottenham, and Lord Campbell had heard; they were in the daily and hourly administration of that branch of the law with reference to which the question arose; they took ample time to consider the matter, and deliberately affirmed the existence of the rule, and the valid grounds on which it rested. The highest legal authority in the land, the Lord Chancellor, corroborated their decision, declaring that it "has always been considered as a clear, distinct, and undoubted principle of the criminal law, that one good count could sustain a general judgment on a writ of error." Are Lord Lyndhurst and Sir Nicholas Tindal, with eight of the judges, palpably and manifestly wrong? It is certainly possible, though not, we presume, very probable.

      We fully recognise the right of the judicial peers to examine the validity of the reasons assigned by the judges, and to come to a conclusion opposite to theirs. We apprehend that the long recognition, alone, of the existence of a rule, does not prevent its being impeached on sufficient reasons. Lord Tenterden, as cautious and accurate judge as ever presided over a court of justice, thus expressed himself in delivering the judgment of the court on a question of mercantile law16– "It is of great importance, in almost every case, that a rule once laid down, and firmly established, and continued to be acted upon for many years, should not be changed, unless it appears clearly to have been founded on wrong principles." Have, then, Lords Denman, Cottenham, and Campbell, succeeded in showing the rule in question to have been founded on wrong principles?

      After as close and fair an examination of the judgments given in the House of Lords as we are capable of bestowing upon any subject, we have arrived at the conclusion that the Chancellor and judges were plainly right, and the peers who differed from them as plainly wrong. They doubtless believed that they were eradicating an erroneous and mischievous practice from the administration of criminal law; but we entertain grave fears that they have not duly considered the many important reasons and necessities out of which that practice originated, and which, in our opinion, will require the legislature either to restore it, or devise some other expedient in lieu of it – if one so efficacious can be found – after a very brief experience of the practical mischiefs and inconveniences which the decision of the House of Lords will entail upon the administration of criminal justice.

      Mr Justice Coltman observes,17 that "in old times an indictment contained one single count only;" and that, "now it has become usual to insert many counts." It has become usual – it should rather be said necessary; but why? Because of the rigid precision which the law, in spite of the subtle and complicated character of its modern mode of administration, has long thought fit to require for the protection of the subject, in the statement of an offence charged against an individual. Unless that degree of generality in framing criminal charges, which has been so severely reprobated, in the present instance, by Lord Denman, and which led the judges unanimously to condemn the sixth and seventh counts, shall be henceforth permitted, justice must, so to speak, be allowed to have many strings to her bow; otherwise the very great distinctness and particularity which constitute the legal notion of certainty, are only a trap and a snare for her. There is a twofold necessity for allowing the reasonable multiplication of counts: one, to meet the difficulty often arising out of the adjustment of the statement in the charge to the evidence which is to support it; and the other, to obviate the great difficulty, in many cases, of framing the charge with perfect legal certainty and precision. Look for a striking illustration at the sixth and seventh counts of this very indictment. Few practical lawyers, we venture to think, would have pronounced them insufficient, before hearing those numerous astute and able arguments which have led the judges to that conclusion; and what if these had been the only counts, or one of them the sole count? Of course, justice would have been defeated. Now the rule, custom, or practice – call it what you will – which has been annulled by the House of Lords, was admirably adapted to meet, in combination with the allowance of several counts, the practical and perhaps inevitable difficulties which beset the attempt to bring criminals to justice; to prevent any injurious consequences from either defective or unproved counts; and we think we may truly state, that no single instance as adduced during the argument, of actual mischief or injury occasioned to defendants by the operation of this rule – we believe we may safely defy any one now to produce such a case. It is certainly possible for an anxious straining ingenuity to imagine such cases; and where is the rule of law, which, in the infirmity of human institutions, cannot be shown capable of occasioning possible mischief and injustice?

      One important distinction has not, we venture to think, been kept constantly in view by the House of Lords in arriving at their recent decision; we mean, the distinction between defective counts and unproved counts. It was principally in the former case that the annulled rule operated so advantageously for the interests of justice. Let us suppose a case. A man is charged with an offence; and the indictment contains three counts, which we will call A, B, C – each differently describing the same offence. He is proved in court to have actually done an act to which the law annexes a punishment, and a general verdict and judgment, awarding the correct kind of punishment, are given and entered. If it afterwards became necessary to "make up" the record —i. e. to enter the proceedings in due and full form – it might appear that count A was essentially defective, as containing no "offence" at all. But what did that signify – or what would it have signified if count B had also been bad – provided count C was a good one, and warranted the punishment which had been inflicted? The only consequence was, that the indictment was a little longer than it turns out that it needed to have been. Though several hooks had been used in order to give an additional chance of catching the fish, that was not regretted, when, the fish having been caught, it turned out that two out of the three had not been strong enough; and that, had they alone been used, the fish must have escaped.

      Let us see how the new rule laid down by the House of Lords will operate in future, in such a case as the one above supposed; bearing in mind that it will have to be acted upon, not merely by the judges of the superior courts at the assizes, but by the chairmen – the lay chairmen – of the courts of Quarter-Sessions. Let us imagine the indictment to be a long one, and each count necessarily complicated in its allegations and refinements, to meet very doubtful facts, or very doubtful language in an Act of Parliament. A great number of prisoners are to be tried; but, nevertheless, the judge (lay or professional) has mastered the formidable record, СКАЧАТЬ