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

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СКАЧАТЬ 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: —

      "But independently of this, my lords, let us look at the record itself, and see whether, on the face of the record, there is any ground whatever for this objection. Every record must be construed according to its legal effect– according to its legal operation. You cannot travel out of the record. Now, what is the judgment? Why, 'that the court adjudges the defendant, for his offences aforesaid, to be fined and imprisoned.' What is an 'offence' on this record? There are two counts defective: but why? Because they charged, according to the unanimous opinion of the judges, NO offence. There were facts stated, but not so stated as to constitute an indictable offence. When you consider this record, then, according to its language and legal interpretation, can you say that when there is an award of judgment for the offences on the record, that judgment applies to those counts which bear on the face of them no offence whatever? That is, my lords, an incongruity, an inconsistency, which your lordships will never sanction for one moment. The argument which applies to defective counts, applies to valid counts on which erroneous findings are entered up. When judgment is given for an 'offence' on the record, it is given on the offence of which the defendant is properly found guilty; and he is not found guilty on those counts on which the erroneous findings are entered up. My lords, the conclusion to which I come on the record is, that when the judgment is awarded 'for the offences aforesaid', it must be confined to those offences stated on the record which are offences in the eye of the law, and of which the defendant has been found guilty by the law – namely, those offences on which the finding was properly made. It is not, however, necessary to rest upon that: but if it were, I am of opinion, and I state it to your lordships, that in this case, the record, considered according to the proper and legal acceptation and force of the terms – and that is the only way in which a local record can be properly considered – must be taken as containing an award of judgment for those offences only which are properly laid, and of which the parties have been found guilty. On the face, therefore, of the record itself, there is no defect whatever in this case."

      His lordship, after a luminous commentary on a great number of authorities, thus proceeded – "Now, my lords, it is said that there is no express decision upon the subject. Why, if a case be so clear, so free from doubt, that no man, no attorney, barrister, or judge, ever entertained any scruple concerning it – if the rule have been uniformly acted upon and constantly recognised, is it to be said, that because there is no express decision it is not to be considered law? Why, that argument leads to this conclusion – that the more clear a question is, the more free from doubt, the more uncertain it must be! My lords, what constitutes the law of this country? It is – usage, practice, recognition. For many established opinions, part of the acknowledged law of the land, you will look in vain for any express decision. I repeat, that practice, usage, recognition, are considered as precedents establishing the law: these are the foundations on which the common law of the country rests; and it is admitted in this case, that the usage is all against the principle now contended for by the plaintiffs in error. No case, no authority of any kind, can be adduced in its favour: it is now admittedly, for the first time, urged in this extraordinary case. And I ask, my lords, if you will not recognise the decision of the great majority of the judges on a question of this kind, involving the technicalities of the law, with which they are constantly conversant? When, on such a point, you find them – speaking by the eminent and able Chief-Justice of the Common Pleas – pronouncing a clear and distinct opinion, it must be a case clear from all doubt – a conviction amounting to actual certainty, upon which alone you would be justified in rejecting such authorities. * * * It is on these grounds, and on the authorities which I have cited, that I assert the universal recognition of the principle which I contend has been acknowledged law from time immemorial."

      Such was the emphatic, clear, unwavering judgment, deliberately pronounced, after long examination and consideration, by one of the very greatest intellects ever brought to bear upon the science of the law, and of vast judicial experience in the administration of every department of the law – criminal law, common law, and equity.

      Lord Brougham then rose, and delivered partly a written, partly an oral judgment – characterized by his lordship's usual vigour and felicity of reasoning and illustration. He entirely concurred with the Lord Chancellor, and assigned reasons, which certainly appeared of irresistible cogency, for adopting the opinion of the judges, whom, in a matter peculiarly within their province, their lordships had summoned to their assistance, who had bestowed such unexampled pains upon the subject, and were all but unanimous. The following was a very striking way of putting the case: – "If the doubts which have been thrown upon this judgment be allowed to have any weight in them, it goes the length of declaring, that every thing which has been decided in similar cases was mere error and delusion. Nothing can be more dangerous than such an impression. I cannot conceive any thing more appalling than that it should be held, that every one of the cases similarly decided ought to be reversed; that the judgments without number under which parties have been sent for execution are all erroneous judgments, and ought to have been reversed, and must have been reversed, if they had been brought before the last resort!"

      Lord Denman then rose; and though it was generally understood – as proved to be the fact – that he intended to express a strong opinion against the disallowance of the challenge to the array, we believe that no one expected him to dissent upon the great and only point on which the appeal turned, from the opinions of the great majority of his brother judges, and from the Chancellor and Lord Brougham. We waited with great interest to see the course which Lord Denman would take upon the great question. He is a man of strong natural talents, of a lofty bearing in the administration of justice, and an uncompromising determination on all occasions to assert the rights and protect the privileges of the subject. Nor, though a man of unquestionably very strong Whig opinions, are we aware of his having ever allowed them to interfere with his eminent and most responsible judicial duties. Whatever may be our opinion as to the validity of his conclusions on the subject of the challenge to the array, it was impossible not to be interested by the zealous energy, the manly eloquence, with which he vindicated the right of the subject to the fullest enjoyment of trial by jury, and denounced what he considered to be any, the slightest interference, with that right. At length his lordship closed his observations on that subject, and amidst breathless silence, fell foul, not only of the two counts which had been admitted to be defective – the sixth and seventh – but "many others of the counts!" which, he said, were open to objection, and declared that the judgment could not be sustained.

      Lord Denman's judgment (to which great respect is due) was, as far as relates to the point of the case, to this effect: – He had an "unconquerable repugnance" to assuming that the judges had passed sentence on the good counts only; for it was in direct contradiction to the notorious fact, that the judges had pronounced certain counts to be good; and it was also against the common probability of every case. He admitted the general opinion of the profession to have long been, that a general judgment, if supported by one sufficient good count, was not injured by a bad one associated with it. "I know," said his lordship,12 "what course I should have taken if pressed to give judgment at the trial, and had given it. If nothing had taken place respecting the validity of any part of the indictment – but much more if СКАЧАТЬ