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

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СКАЧАТЬ counts, A and B, as either not hitting the facts of the case or the language of the act – possibly neither. He orders them to be quashed, or directs a verdict of not guilty upon them. He then has the verdict and judgment entered accordingly on count C, (the count which he considers good.) The record is afterwards made up; a writ of error brought; the only count on which the judgment is given being C, the court of error decides that it is bad, reverses the judgment, and the prisoner is discharged; or the country is put to the expense and trouble of bringing, and the prisoner unjustly harrassed by, fresh proceedings, which may, perhaps, end as disastrously as before!

      To escape from these serious difficulties, it is proposed by Lord Denman,18 to leave the legal sufficiency of the counts for discussion before a court of error, and to pass, not one sentence, but three distinct sentences on each count respectively, apportioning to the offence thereby apparently charged, the degree of punishment due to the guilt disclosed. Keeping his eye on the alarming possibility of a reversal of judgment, what difficulties will not beset the path of the judge while engaged on this very critical duty? And why may not the indictment, for necessary caution's sake, contain, as there often are, ten, fifteen, or twenty counts? we shall then have ten or fifteen distinct sentences delivered in open court – engrossed on the record – and dangling at once around the neck of the astounded and bewildered prisoner. Is such a method of procedure calculated to secure respect for the administration of justice, even if, by means of such devices, the ends of justice should be ultimately secured, though it is easy to imagine cases in which such devices would, after all, fail; and we had framed several illustrations of such possibilities, but our limits forbid their insertion: instances illustrating the mischievous operation of the rule, equally in cases of defective and unproved counts – of felonies and misdemeanours – and in the latter case, whether the indictment contained several offences, or only varied statements of one offence. In the case first put, what a temptation the new rule holds out to criminals who may be able to afford to bring a writ of error, and so seriously embarrass the administration of justice! And if too poor to do it, he will, under the operation of the new rule, be suffering punishment unjustly; for the only count selected may be bad, or some one only of several may be bad, and the judgment ought to be reversed. What was the operation of the old rule? Most salutary and decorous. No public account was taken of the innocuous aims, so to speak, taken by justice, in order to hit her victim. If he fell, the public saw that it was in consequence of a blow struck by her, and concerned themselves not with several previous abortive blows. The prisoner, knowing himself proved actually guilty, and the numerous chances existing against him on the record, if he chose to make pettifogging experiments upon its technical sufficiency, submitted to his just fate.

      Let us take one more case – that of murder: we fear, that on even such solemn and awful occasions, the new rule will be found to operate most disadvantageously. There are necessarily several, possibly many, counts. Mr Baron Parke19 admits, that here the old rule should apply; viz. a general judgment of death, which shall not be vitiated by one, or several bad counts, if there be a single good one. The new rule since laid down, says, however, the contrary; that judgment must be reversed for a single bad count. Lord Denman, to meet this difficulty, would pass sentence "upon some one"20 of them, and thereby exhaust the materials of punishment, and so in effect give a "judgment for one felony." But how is the record to be dealt with? If the prisoner choose to bring a writ of error, and show a single bad count, must not the judgment be reversed if entered generally? And if entered on one count with not guilty on all the others; and that one count proved bad, while even a single one of the rejected counts is good, and would have been supported by the evidence given at the trial, the prisoner can plead autrefois acquit to a fresh indictment, and so get off scot-free, after having been incontestably proved guilty of the act of murder! Suppose then, to avoid so fearful a result, separate sentences of death be passed, to say nothing of the unseemliness of the transaction in open court, which might be avoided: but how can it be avoided on the record, upon which it must be entered? Mr Baron Parke pronounces that such a procedure would be "superfluous, and savour of absurdity,"21 and that therefore, "in such a case, the general judgment might be good!" Thus, in order to work the new rule, Mr Baron Parke is forced to make the case of murder a double exception – viz. to the adoption of the new rule at the trial, and then to the operation of the new rule before the court of error, which must then hold that a single bad, or a dozen bad counts, will not vitiate a general judgment, if sustained by one good count! Does not all this suffice to show the desperate shifts to which even two such distinguished judges are driven, in order to support the new rule, and conceal its impracticability? Then why should the old lamp be exchanged for the new?

      We entertain, we repeat, very grave apprehension that the House of Lords has treated far too cavalierly the authority of the great Lord Mansfield, than whom a more enlightened, learned, and cautious a judge probably never administered justice among mankind. He was not a man accustomed, in delivering his judgments, to "utter things needlessly and inconsiderately," as he is now charged with doing;22 and when he declared the established rule of criminal law to be that which has now been so suddenly abrogated, he spoke with the authority which nearly thirty years' judicial experience attaches to the opinion of a responsible master-mind. We ask with deep anxiety, what will be the consequences of thus lightly esteeming such authority? – of impugning the stability of the legal fabric, by asserting one-half of its materials to consist merely of "law taken for granted?"23– and, consequently, not the product of experience and wisdom, and to be got rid of with comparative indifference, in spite of the deliberate and solemn judgment of an overwhelming majority of the existing judicial authorities of the land.

      The rule just abrogated has, for a long series of years – for a century and a half – obviated a thousand difficulties and evils, even if it should be admitted that the end was gained at the expense of some imperfections in a speculative and theoretical point of view, and with the risk of possibly inflicting injustice in some case, which could be imagined by an ingenious and fertile fancy. The old rule gave ten chances to one in favour of justice; the new one gives ten chances to one against her. We may be mistaken, but we cannot help imagining, that if Lord Cottenham, unquestionably so able as an equity judge, had, on the maxim cuique suâ arte credendum, given a little more weight to the opinions of those whose whole lives had been passed, not in equity, but criminal courts, or had seen for himself the working of the criminal law, he would have paused before disturbing such complicated – necessarily complicated – machinery, and would not have spoken of the consequences as being so very slight and unimportant – nay, as so very beneficial.

      It was suggested by the three peers, that the old rule had no better foundation than the indolence, slovenliness, and negligence of practitioners, whom the salutary stringency of the new rule would stimulate into superior energy and activity. We cannot help regarding this notion, however – for the preceding, among many other reasons – as quite unfounded, and perhaps arising out of a hasty glance at the alterations recently introduced into civil pleadings and practice. But observe, it required an act of Parliament to effect these alterations, (stat. 3 and 4 Will. IV. c. 42,) the very first section reciting the "doubts which might arise as to the power of the judges to make such alterations without the authority of Parliament;" and yet the state of the laws calling for such potent interference was in an incomparably more defective and mischievous state than is imputed to the present criminal law. Then, again, any practical man will see in a moment, that the strictness of the new system of civil pleading, which to this moment occasions not infrequently a grievous failure of justice, with all the ample opportunities afforded for deliberate examination and preparation of the pleadings, cannot be safely applied to criminal law for many reasons, principally because it rarely admits of that previous deliberation in drawing the indictment, which must be based upon the often inaccurate statement of facts supplied by the depositions; and because a defect in them is, generally speaking, irremediable and fatal, and СКАЧАТЬ