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

by Various

Thus, then, the first question was answered.

To the second question the judges replied unanimously, "that the findings of the jury in the first four counts were not authorized by the law, and are incorrectly entered on the record." One of the judges, however, and a most eminent judge, (Mr Justice Patteson,) being of a contrary opinion.

Thus we have it unanimously decided by the judges, whose decision was acquiesced in by the House of Lords, that there were two bad counts, (the 6th and 7th,) on which there were good findings by the jury, and, with the exception of Mr Justice Patteson, four good counts, (the 1st, 2d, 3d, and 4th,) on which there were bad findings. The effect of this twofold error was thus tersely stated by Mr Baron Gurney, and adopted by the Lord Chancellor.[10]

"I cannot distinguish between a bad finding on a good count, and a good finding on a bad count. They appear to me to amount to precisely the same thing—namely, that upon which no judgment can be pronounced. The judgment must be taken to have proceeded upon the concurrence of good counts and good findings, and upon nothing else."

Here, then, at length, it seems that we have hit upon a blot—a petty, circumscribed blot to be sure, upon a vast surface of otherwise unsullied legal sufficiency; but still—in the opinion of the judges—a blot.

What was to be held the effect of it? Or had it any effect?

The traversers' counsel, at the bar of the House of Lords, took by surprise every one whom they addressed—all their opponents, all the judges, all the law lords, and all the legal profession, as soon as they had heard of it—by boldly affirming, that if this blot really existed, it would invalidate and utterly nullify the whole proceedings from the beginning to the end! They hammered away at this point accordingly, hour after hour—day after day—with desperate pertinacity; being compelled from time to time, during their hopeful argument, to admit, that up to that moment the rule or custom which they were seeking to impeach had been universally acted upon from time immemorial, to the contrary of that for which they were contending. This strange and novel point of theirs gave rise to the third and eleventh questions put to the judges. These questions are substantially identical, viz., whether a single bad count in an indictment on which there has been a general verdict of guilty, with judgment accordingly, will entitle the fortunate defendant to a reversal of that judgment?

We heard a considerable portion of the argument; and listened to this part of it with a comfortable consciousness that we beheld, in each counsel arguing it, as it were, a viper gnawing a file! If this be law, thought we, then have many thousands of injured gentlemen been, in all human probability, unjustly hanged, and transported for life or for years, been fined, imprisoned, sent to the tread-mill, and publicly whipped; for Heaven only knows how many of the counts in the indictments against—say Mr Fauntleroy; Messrs Thistlewood, Brunt, Tidd, and Ings; Messrs Greenacre, Courvoisier, and many others—have been defective in law! How many hundreds are now luxuriating in Norfolk Island who have, on this supposition, no just right to be there; and who, had they been but popular miscreants, might have collected sufficient funds from their friends and admirers to enable them to prove this—to try a fall with justice and show her weakness; to overhaul the proceedings against them, detect the latent flaws therein, return in triumph to the bosom of their families and friends, and exhibit new and greater feats of dexterity in their art and mystery! Why should not that "innocent" convict—now passing over the seas—Mr Barber, on hearing of this decision, soon after his arrival at the distant paradise to which he is bound, take new heart and remit instructions by the next homeward bound ship for a writ of error, in order that he may have his chance of detecting a flaw in one of the many counts of his indictment?

But, to be serious again, how stands the case in the present instance? Of eleven counts, six must be in legal contemplation expunged from the record: four, (the first, second, third, and fourth,) because, though in themselves sufficient in law, the findings upon them were technically defective; and two, (the sixth and seventh,) because they were technically defective in point of law, though the findings on them were unobjectionable.