Blackwood's Edinburgh Magazine, Volume 56, Number 349, November, 1844
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Title: Blackwood's Edinburgh Magazine, Volume 56, Number 349, November, 1844
Author: Various
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*** START OF THE PROJECT GUTENBERG EBOOK BLACKWOOD'S EDINBURGH MAGAZINE, VOLUME 56, NUMBER 349, NOVEMBER, 1844 ***
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BLACKWOOD'S
EDINBURGH MAGAZINE.
No. CCCXLIX. NOVEMBER, 1844. VOL. LVI.
CONTENTS
THE O'CONNELL CASE, 539
MY COLLEGE FRIENDS. NO. 1. JOHN BROWN, 569
THE TOMBLESS MAN. BY DELTA, 583
FRENCH SOCIALISTS, 588
MARSTON; OR, THE MEMOIRS OF A STATESMAN. PART XIV., 601
SONNET TO CLARKSON, 619
LETTER FROM THE RIGHT HON. CHARLES HOPE, 620
POEMS BY ELIZABETH B. BARRETT, 621
UP STREAM; OR, STEAM-BOAT REMINISCENCES, 640
WESTMINSTER HALL AND THE WORKS OF ART, 652
LINES ON THE LANDING OF HIS MAJESTY KING LOUIS PHILIPPE, 654
LAMARTINE, 657
* * * * *
EDINBURGH: WILLIAM BLACKWOOD AND SONS, 45, GEORGE STREET; AND 22,
PALL-MALL, LONDON.
_To whom all Communications (post paid) must be addressed._
SOLD BY ALL THE BOOKSELLERS IN THE UNITED KINGDOM.
* * * * *
PRINTED BY BALLANTYNE AND HUGHES, EDINBURGH.
BLACKWOOD'S EDINBURGH MAGAZINE.
No. CCCXLIX NOVEMBER, 1844. VOL. LVI.
THE O'CONNELL CASE--WAS THE JUDGMENT RIGHTLY REVERSED?
The astounding issue of the Irish State trials will constitute a
conspicuous and mortifying event in the history of the times. A gigantic
conspiracy for the dismemberment of the empire was boldly encountered at
its highest point of development by the energy of the common law of the
land, as administered in the ordinary courts of justice. That law,
itself certainly intricate and involved, had to deal with facts of
almost unprecedented complication and difficulty; but after a long and
desperate struggle, the law triumphed over every obstacle that could be
opposed to it by tortuous and pertinacious ingenuity: the case was
correctly charged before the jury; most clearly established in evidence,
so as to satisfy not them only, but all mankind; the jury returned a
just verdict of guilty against all the parties charged--the court passed
judgment in conformity with that verdict, awarding to the offenders a
serious but temperate measure of punishment--imprisonment, fine, and
security for good behaviour. The sentence was instantly carried into
effect--
"And Justice said--I'm satisfied."
But, behold! a last desperate throw of the dice from the prison-house--a
speculative and desponding appeal to the proverbial uncertainty of the
law; and, to the unspeakable amazement and disgust of the country, an
alleged technical slip in the conduct of the proceedings, not touching
or even approaching, the established MERITS of the case either in fact
or law, has been held, by the highest tribunal in the land, sufficient
to nullify the whole which had been done, and to restore to liberty the
dangerous delinquents, reveling in misrepresentation and falsehood
concerning the grounds of their escape on punishment--in their delirium
of delight and triumph, even threatening an IMPEACHMENT against the
officers of the crown, against even the judges of the land, for the part
they have borne in these reversed proceedings!
Making all due allowance for these extravagant fooleries, it is obvious
that the event which has given rise to them is one calculated to excite
profound concern, and very great _curiosity_. The most sober and
thoughtful observers are conscious of feeling lively indignation at the
spectacle of justice defeated by a technical objection; and public
attention has been attracted to certain topics of the very highest
importance and delicacy, arising out of this grievous miscarriage. They
are all involved in the discussion of the question placed at the head of
this article; and to that discussion we propose to address ourselves in
spirit of calmness, freedom, and candour. We have paid close attention
to this remarkable and harassing case from first to last, and had
sufficient opportunities of acquainting ourselves with its exact legal
position. We deem it of great importance to enable our readers, whether
lay or professional, to form, with moderate attention, a sound judgment
for themselves upon questions which may possibly become the subject of
early parliamentary discussion--Whether the recent decision of the House
of Lords, a very bold one unquestionably, was nevertheless a correct
one, and consequently entitling the tribunal by whom it was pronounced,
to the continued respect and confidence of the country? This is, in
truth, a grave question, of universal concern, of permanent interest,
and requiring a fearless, an honest, and a careful examination.
The reversal of the judgment against Mr O'Connell and his companions,
was received throughout the kingdom with perfect amazement. No one was
prepared for it. Up to the very last moment, even till Lord Denman had
in his judgment decisively indicated the conclusion at which he had
arrived on the main point in the case, we have the best reason for
believing that there was not a single person in the House of Lords--with
the possible exception of Lords Denman, Cottenham, and Campbell--who
expected a reversal of the judgment. So much has the public press been
taken by surprise, that, with the exception of a fierce controversy
between the _Standard_, and _Morning Herald_, and the _Morning
Chronicle_, which was conducted with great acuteness and learning, we
are not aware of any explanation since offered by the leading organs of
public opinion--the TIMES has preserved a total silence--as to the legal
sufficiency or insufficiency of the grounds on which this memorable
judgment of reversal proceeded. We shall endeavour to do so; for while
it is on this side of the Channel perfectly notorious that the
traversers have been proved guilty of the enormous misdemeanours with
which they were charged--guilty in law and guilty in fact--on the other
side of the Channel we find, since commencing this article, that the
chief delinquent, Daniel O'Connell, has the amazing audacity, repeatedly
and deliberately, to declare in public that he has been "ACQUITTED ON
THE MERITS!" Without pausing to find words which would fitly
characterize such conduct, we shall content ourselves with the following
judicial declaration made by Lord Brougham in giving judgment in the
House of Lords, a declaration heard and necessarily acquiesced in by
every member of the court:--
"The whole of the learned judges with one voice declare, that on the
merits, at any rate, they have no doubt at all--that on the great merits
and substance of the case they are unanimously agreed. That a great
offence has been committed, and an offence known to and recognisable by
the law; that a grave offence and crime has been perpetrated, and an
offence and crime punishable by the admitted and undoubted law of the
land, none of the learned judges do deny; that counts in the indictment
to bring the offenders, the criminals, to punishment, are to be found,
against which no possible exception, technical or substantial, can be
urged, all are agreed; that these counts, if they stood alone, would be
amply sufficient to support the sentence of the court below, and that
that sentence in one which the law warrants, justifies, nay, I will even
say commands, they all admit. _On these, the great features, the leading
points, the substance, the very essence of the case, all the learned
judges without exception, entertain and express one clear, unanimous,
and unhesitating opinion._" And yet all the proceedings have been
annulled, and the perpetrators of these great crimes and offences let
loose again upon society! How comes this to pass? is asked with
astonishment wherever it is heard of, both in this country--and abroad.
The enquiry we propose is due with reference to the conduct and
reputation of three great judicial classes--the judges of the Irish
Queen's Bench: the judges of England: and the judges of the court of
appeal in the House of Lords. Familiar as the public has been for the
last twelve months with the Irish State Trials, the proceedings have
been reported at such great length--in such different forms, and various
stages--that it is probable that very few except professional readers
have at this moment a distinct idea of the real nature of the case, as
from time to time developed before the various tribunals through whose
ordeal it has passed. We shall endeavour now to extricate the legal
merits of the case from the meshes of complicated technicalities in
which they have hitherto been involved, and give an even _elementary_
exposition of such portions of the proceedings as must be distinctly
understood, before attempting to form a sound opinion upon the validity
or invalidity of the grounds upon which alone the judgment has been
reversed.
The traversers were charged with having committed the offence of
CONSPIRACY; which, by the universally admitted common law of the land
for considerably upwards of five hundred years, exists "_where two, or
more than two, agree to do an illegal act_--that is, to effect something
in itself unlawful, or to effect by unlawful means something which in
itself may be indifferent, or even lawful."[1] Such an offence
constitutes a _misdemeanour_; and for that misdemeanour, and that
misdemeanour alone, the traversers were _indicted_. The government
might, as we explained in a former Number,[2] have proceeded by an
_ex-officio_ information at the suit of the crown, filed by the
Attorney-General; but in this instance, waiving all the privileges
appertaining to the kingly office, they appeared before the constituted
tribunal of the law as the redressers of the public wrongs, invested
however with no powers or authority beyond the simple rights enjoyed by
the meanest of its subjects--and preferred an _indictment_: which is "a
written accusation of one or more persons, of a crime or misdemeanour,
preferred to and presented on oath by a grand jury."[3] Now, in framing
an indictment, the following are the principles to be kept in view. They
were laid down with beautiful precision and terseness by Lord
Chief-Justice De Grey, in the case of Rex. _v._ Horne--2 Cowper's Rep.
682.
"The charge must contain such a description of the crime, that the
_defendant_ may know what crime it is which he is called upon to answer;
that the _jury_ may appear to be warranted in their conclusion of
'guilty,' or 'not guilty,' upon the premises delivered to them; and that
the _court_ may see such a definite crime, that they may apply the
punishment which the law prescribes."
There may be, and almost always are, several, sometimes many, counts in
a single indictment; and it is of peculiar importance in the present
case, to note the _reason_ why several counts are inserted, when the
indictment contains a charge of only one actual offence. First, when
there is any doubt as to which is the proper mode, in point of _law_, of
_describing_ the offence; secondly, lest, although the offence be
legally described on the face of the indictment, it should be one which
the _evidence_ would not meet or support. The sole object is, in short,
to avoid the risk of a frequent and final failure of justice on either
of the above two grounds. Technically speaking, each of these counts is
regarded (though all of them really are only varied descriptions of one
and the same offence) as containing the charge of a distinct offence.[4]
For precisely the same reason, several counts were, till recently,
allowed in CIVIL proceedings, although there was only one cause of
action; but this license got to be so much abused, (occasioning
expensive prolixity,) that only one count is now permitted for one cause
of action--a great discretion being allowed to judge, however, by
statute, of altering the count at the trial, so as to meet the evidence
then adduced. A similar alteration could not be allowed in criminal
cases, lest the grand jury should have found a bill for one offence, and
the defendant be put upon his trial for another. There appear, however,
insuperable objections to restricting one offence to a single count, in
respect of the other object, on peril of the perpetual defeat of
justice. The risk is sufficiently serious in civil cases, where the
proceedings are drawn so long beforehand, and with such ample time for
consideration as to the proper mode of stating the case, so as to be
sufficient in point of law. But criminal proceedings cannot possibly be
drawn with this deliberate preparation and accurate examination into the
real facts of the case beforehand; and if the only count
allowed--excessively difficult as it continually is to secure perfect
accuracy--should prove defective in point of law, the prisoner, though
guilty, must either escape scot-free, or become the subject of
reiterated and abortive prosecution--a gross scandal to the
administration of justice, and grave injury to the interests of society.
If these observations be read with attention, and borne in mind, they
will afford great assistance in forming a clear and correct judgment on
this remarkably interesting, and, _as regards the future administration
of justice_, vitally important case. There is yet one other remark
necessary to be made, and to be borne in mind by the lay reader.
Adverting to the definition already given of a "conspiracy"--that its
essence is the MERE AGREEMENT to do an illegal act--it will be plain,
that where such an agreement has once been shown to have been entered
into, it is totally immaterial whether the illegal act, or the illegal
acts, have been _actually done or not_ in pursuance of the conspiracy.
Where these illegal acts, however, have been done, and can be clearly
proved, it is usual--but not necessary--to _set them out_ in the
indictment for a conspiracy. This is called _setting out the overt
acts_, (and was done in the present instance,) not as any part of the
conspiracy, but only as statements of _the evidence_ by which the charge
was to be supported--for the laudable purpose of giving the parties
notice of the particular facts from which the crown intended to deduce
the existence of the alleged conspiracy. They consisted, almost
unavoidably, of a prodigious number of writings, speeches, and
publications; and these it was which earned for the indictment the title
of "the _Monster_ Indictment." It occupies fifty-three pages of the
closely printed folio _appendix_ to the case on the part of the
crown--each page containing on an average seventy-three lines, each line
eighteen words; which would extend to _nine hundred and fifty-three
common law folios_, each containing seventy-two words! The indictment
itself, however, independently of its ponderous appendages, was of very
moderate length. It contained eleven counts--and charged A CONSPIRACY of
a five-fold nature--_i. e._ to do five different acts; and the scheme of
these counts was this:--the first contained all the five branches of the
conspiracy--and the subsequent counts took that first count to pieces;
that is to say, contained the whole or separate portions of it, with
such modifications as might appear likely to obviate doubts as to their
_legal_ sufficiency, or meet possible or probable variations in the
expected _evidence_. The following will be found a correct abstract of
this important document.
The indictment, as already stated, contained eleven counts, in each of
which it was charged that the defendants, Daniel O'Connell, John
O'Connell, Thomas Steele, Thomas Matthew Kay, Charles Gavan Duffy, John
Gray, and Richard Barrett, the Rev. Peter James Tyrrell, and the Rev.
Thomas Tierney, unlawfully, maliciously, and seditiously did COMBINE,
CONSPIRE, CONFEDERATE, and AGREE with each other, and with divers other
persons unknown, for the purposes in those counts respectively stated.
The FIRST count charged the conspiracy as a conspiracy to do five
different acts, (that is to say,)
"_First._ To raise and create discontent and disaffection amongst her
Majesty's subjects, and to excite such subjects to hatred and contempt
of the government and constitution of the realm as by law established,
and to unlawful and seditious opposition to the said government and
constitution.
"_Second._ To stir up jealousies, hatred, and ill-will between
different classes of her Majesty's subjects, and especially to promote
amongst her Majesty's subjects in Ireland, feelings of ill-will and
hostility towards and against her Majesty's subjects in the other parts
of the United Kingdom, especially in that part of the United Kingdom
called England.
"_Third._ To excite discontent and disaffection amongst divers of her
Majesty's subjects serving in her Majesty's army.
"_Fourth._ To cause and procure, and aid and assist in causing and
procuring, divers subjects of her Majesty _unlawfully_, _maliciously_,
_and seditiously_ to meet and assemble together in large numbers, at
various times and at different places within Ireland, for the unlawful
and seditious purpose of obtaining, by means of the intimidation to be
thereby caused, and by means of the exhibition and demonstration of
great physical force at such assemblies and meetings, changes and
alterations in the government, laws, and constitution of the realm by
law established.
"_Fifth._ To bring into hatred and disrepute the courts of law
established in Ireland for the administration of justice, and to
diminish the confidence of her Majesty's subjects in Ireland in the
administration of the law therein, _with the intent_ to induce her
Majesty's subjects to withdraw the adjudication of their differences
with, and claims upon, each other, from the cognisance of the said
courts by law established, and to submit the same to the judgment and
determination of other tribunals to be constituted and contrived for
that purpose."
[This count sets out as _overt acts_ of the above design, numerous
_meetings_, _speeches_, and _publications_.]
The SECOND count was the same as the first, _omitting the overt acts_.
The THIRD count was the same as the second, only omitting from the
_fourth_ charge the words "unlawfully, maliciously, and seditiously."
The FOURTH count was the same as the third, omitting the charge as to
the army.
The FIFTH count contained the first and second charges set forth in the
first count, omitting the overt acts.
The SIXTH count contained the fourth charge set forth in the first
count, omitting the words "unlawfully, maliciously, and seditiously,"
and the overt acts.
The SEVENTH count was the same as the sixth, _adding_ the words "and
especially, by the means aforesaid, to bring about and accomplish _a
dissolution of the legislative union_ now subsisting between Great
Britain and Ireland."
The EIGHTH count contained the fifth charge set forth in the first
count, omitting the overt acts.
The NINTH count contained the fifth charge set forth in the first count,
omitting the intent therein charged, and the overt acts, but _adding_
the following charge--"And to assume and _usurp the prerogatives of the
crown_ in the establishment of courts for the administration of law."
The TENTH count was the same as the eighth, omitting _the intent_ stated
in the fifth charge in the first count.
The ELEVENTH count charged the conspiracy to be, "to _cause and procure
large numbers of persons to meet and assemble together_ in divers
places, and at divers times, within Ireland, and by means of unlawful,
seditious, and inflammatory speeches and addresses, to be made and
delivered at the said several places, on the said several times,
respectively, and also by means of the publishing, and causing and
procuring to be published, to and amongst the subjects of her said
majesty, divers unlawful, malicious, and seditious writings and
compositions, _to intimidate the Lords Spiritual and Temporal, and the
Commons_ of the Parliament of the United Kingdom of Great Britain and
Ireland, and _thereby_ to effect and bring about changes and alterations
in the laws and constitution of this realm, as now by law established."
The indictment was laid before the grand jury on the 3d November 1843,
and, after long deliberation, they returned a true bill late on the 8th
of November. After a harassing series of almost all kinds of preliminary
objections, the defendants, on the 22d November, respectively pleaded
"that they were NOT GUILTY of the premises above laid to his charge, or
any of them, or any part thereof:"--and on the 16th January 1844, the
trial commenced at bar, before the full court of Queen's Bench, viz.
the Right Honourable Edward Pennefather, _Chief-Justice_, and Burton,
Crampton, and Perrin, _Justices_, and lasted till the 12th February.
The Chief-Justice--a most able and distinguished lawyer--then closed his
directions to the jury.
"I have put the questions to you in the language of the indictment. It
lies on the crown to establish--they have undertaken to do so--that the
traversers, or some of them, are guilty of a conspiracy, such as I have
already stated to you--a conspiracy consisting of five branches, any one
of which being brought home, to your satisfaction, to the traversers or
traverser, in the way imputed, will maintain and establish the charge
which the crown has undertaken to prove."
The jury were long engaged in discussing their verdict, and came once or
twice into court with imperfect findings, expressing themselves as
greatly embarrassed by the complexity and multiplicity of the issues
submitted to them; on which Mr Justice Crampton, who remained to receive
the verdict, delivered to them, in a specific form, the issues on which
they were to find their verdict. They ultimately handed in very
complicated written findings, the substantial result of which may be
thus stated: All the defendants were found guilty on the whole of the
last eight counts of the indictment, viz., the Fourth, Fifth, SIXTH,
SEVENTH, Eighth, Ninth, Tenth, and Eleventh counts.
Three of the defendants--Daniel O'Connell, Barrett, and Duffy--were also
found guilty on the whole of the _Third_ count, and on part of the First
and Second counts--[that is to say, of all the first and second counts,
except as to causing meetings to assemble "_unlawfully, maliciously, and
seditiously_."]
Four other of the defendants--John O'Connell, Steele, Ray, and
Gray--were also found guilty of a part of the First, Second, and Third
counts--viz., of all, except as to causing meetings to assemble
_unlawfully, maliciously, and seditiously_, and exciting discontent and
disaffection in the army.[5]
As soon as these findings had been delivered to the deputy-clerk of the
crown, and read by him, a copy of them was given to the traversers, and
the court adjourned till the ensuing term.
It should here be particularly observed, that it has been from time
immemorial the invariable course, in criminal cases, as soon as the
verdict has been delivered, however special its form, for the proper
officer to write on the indictment, in the presence of the court and
jury, the word "_Guilty_," or "_Not Guilty_," as the case may be, of the
whole or that portion of the indictment on which the jury may have
thought fit to find their verdict; and then the judge usually proceeds
at once to pass judgment, unless he is interrupted by the prisoner's
counsel rising to move "_in arrest_," or stay of judgment, in
consequence of some supposed substantial defect in the indictment. But
observe--it was useless to take this step, unless the counsel could show
that _the whole indictment_ was insufficient, as disclosing in no part
of it an offence in contemplation of law. If he were satisfied that
there was one single good count to be found in it, it would have been
idle, at this stage of the proceedings, to make the attempt; and it very
rarely happens that every one of the varied modes of stating the case
which has been adopted is erroneous and insufficient. If, then, the
motion was refused, nothing else remained but to pass the sentence,
which was duly recorded, and properly carried into effect. No formal or
further entry was made upon the record--matters remaining in _statu
quo_--unless the party convicted, satisfied that he had good ground for
doing so, and was able to afford it, determined to bring a writ of
error. _Then_ it became necessary, in order to obey the command
contained in the writ of error, to "make up the record"--_i. e._
formally and in technical detail to complete its narrative of the
proceedings, in due course of law; for which purpose the verdict would
be entered in legal form, generally (if such it had been in fact) or
specially, according to its legal effect, if a special verdict had been
delivered.
To return, now, to the course of proceedings in the present instance.
After desperate but unsuccessful efforts had been made, in the ensuing
term, to disturb the verdict, the last step which could be resorted to
in order to avert the sentence, was adopted--viz., a motion in arrest of
judgment, on the main ground that the indictment disclosed in _no part_
of it any indictable offence. It was expressly admitted by the
traversers' counsel, in making the motion, that if "the indictment did
disclose, with sufficient certainty, an indictable offence in all OR ANY
of its counts, the indictment was sufficient;" and it was then
"contended, that _not one_ of the counts disclosed, with sufficient
certainty, that the object of the agreement alleged in it was an
indictable offence." The court, however, was of a different opinion; and
the Chief-Justice, in delivering his judgment, thus expressed
himself--"It was boldly and perseveringly urged, that there was no crime
charged in the indictment. If there was one in any count, or in any part
of a count, that was sufficient." So said also Mr Justice Burton--"We
cannot arrest the judgment, if there be _any_ count on which to found
the judgment"--the other two judges expressly concurring in that
doctrine; and the whole court decided, moreover, that _all_ the counts
were sufficient in point of law. They, therefore, refused the motion.
Had it been granted--had judgment been arrested--all the proceedings
would have been set aside; but the defendants might have been indicted
afresh. Let us once more repeat here--what is, indeed, conspicuously
evident from what has gone before--that at the time when this motion in
arrest of judgment was discussed and decided in the court below, there
was no more doubt entertained by any criminal lawyer at the bar, or on
the bench, in Ireland or England, that if an indictment contained one
single good count it would sustain a general judgment, though there
might be fifty bad counts in it, than there is of doubt among
astronomers, or any one else, whether the earth goes round the sun, or
the sun round the earth. Had the Irish Court of Queen's Bench held the
contrary doctrine, it would have been universally scouted for its
imbecility and ignorance.
Having been called up for _judgment_ on the 30th May, in Trinity term
last, the defendants were respectively sentenced to fine and
imprisonment, and to give security to keep the peace, and be of good
behaviour for seven years; and were at once taken into custody, in
execution of the sentence. They immediately sued out writs of error,
_coram nobis_--(_i. e._ error _in fact_, on the ground that the
witnesses had not been duly sworn before the grand jury, nor their names
authenticated as required by statute.) The court thereupon formally
affirmed its judgments. On the 14th June 1844, the defendants (who
thereby became _plaintiffs_ in error) sued out of the "High Court of
Parliament" writs of error, to reverse the judgments of the court below.
On the writ of error being sued out, it became necessary, as already
intimated, to enter the findings of the jury, according to the true and
legal effect of such findings, upon the record, which was done
accordingly--the judges themselves, it should be observed, having
nothing whatever to do with that matter, which is not within their
province, but that of the proper officer of the court, who is aided, in
difficult cases, by the advice and assistance of counsel; and this
having been done, the following (_inter alia_) appeared upon the face of
the record:--The eleven counts of the indictment were set out
_verbatim_; then the findings of the jury, (in accordance with the
statement of them which will be found _ante_;) and then came the
following all-important paragraph--the entry of judgment--every word of
which is to be accurately noted:--
"Whereupon _all and singular the premises being seen and fully
understood_ by the court of our said Lady the Queen now here, it is
considered and adjudged by the said court here, that the said Daniel
O'Connell, FOR HIS OFFENCES AFORESAID, do pay a fine to our Sovereign
Lady the Queen of two thousand pounds, and be imprisoned," &c., and
"enter into recognisances to keep the peace, and to be of good behaviour
for seven years," &c. Corresponding entries were made concerning the
other defendants respectively.
This Writ of Error, addressed to the Chief-Justice of the Queen's Bench
in Dublin, reciting (in the usual form) that "MANIFEST ERRORS, it was
said, had intervened, to the great damage" of the parties concerned;
commands the Chief-Justice, "distinctly and plainly, _to send under his
seal the record of proceedings_ and writ, to Us in our present
Parliament, now holden at Westminster; that the record and proceedings
aforesaid having been inspected, we may further cause to be done
thereupon, with the consent of the Lords Spiritual and Temporal, in
Parliament assembled, for correcting the said errors, what of right, and
according to the law and customs of this realm, ought to be done." The
writ of error, accompanied by a transcript of the entire record of the
proceedings below, having been duly presented to the House of Lords,
then came the "_assignment of errors,_" prepared by the counsel of the
plaintiffs in error--being a statement of the grounds for imputing
"manifest error" to the record; and which in this case were no fewer
than thirty-four. The Attorney-General, on the part of the crown, put in
the usual plea, or joinder in error--"_In nullo est erratum;" Anglicè_,
that "_there is no error in the record._" This was in the nature of a
demurrer,[6] and referred the whole record--and, be it observed,
_nothing but_ THE RECORD--to the judgment of the House of Lords, as
constituting the High Court of Parliament. It is a cardinal maxim, that
upon a writ of error the court _cannot travel out of the record_; they
can take judicial notice of nothing but what appears upon the face of
the record, sent up to them for the purpose of being "inspected," to see
if there be any error _therein._
The judges of England were summoned _to advise_[7] the House of Lords:
from the _Queen's Bench_, Justices Patteson, Williams, and Coleridge,
(Lord Denman, the Chief-Justice, sitting in judgment as a peer;) from
the _Common Pleas_, Chief-Justice Tindal, and Justices Coltman and
Maule; from the _Exchequer_, Barons Parke, Alderson, and Gurney. Lord
Chief-Baron Pollock did not attend, having advised the Crown in early
stages of the case, as Attorney-General: Mr Justice Erskine was ill; and
the remaining three common law judges, Justices Wightman, Rolfe, and
Cresswell, were required to preside in the respective courts at _Nisi
Prius_. With these necessary exceptions, the whole judicial force--so to
speak--of England assisted in the deliberations of the House of Lords.
The "_law_" peers who constantly attended, were the Lord Chancellor,
Lords Brougham, Cottenham, and Campbell. It has been remarked as
singular, that Lord Langdale (the Master of the Rolls) did not attend in
his place on so important an occasion, and take his share in the
responsibility of the decision. Possibly he considered himself not
qualified by his _equity_ practice and experience to decide upon the
niceties of criminal pleading. Several lay peers also attended--of whom
some, particularly Lord Redesdale, attended regularly. The appeal lasted
for many days, frequently from ten o'clock in the morning till a late
hour in the evening; but the patience and attention of the peers and
judges--we speak from personal observation--was exemplary. For the crown
the case was argued by the English and Irish Attorney-Generals, (Sir W.
W. Follett and Mr T. B. C. Smith;) for O'Connell and his companions, by
Sir Thomas Wilde, Mr M. D. Hill, Mr Fitzroy Kelly, and Mr Peacock, all
of whom evinced a degree of astuteness and learning commensurate with
the occasion of their exertions. If ever a case was thoroughly
discussed, it was surely this. If ever "justice to Ireland" was done at
the expense of the "delay of justice to England," it was on this
occasion. When the argument had closed, the Lord Chancellor proposed
written questions, eleven in number, to the judges, who begged for time
to answer them, which was granted. Seven out of the eleven related to
the merest technical objections, and which were unanimously declared by
the judges to be untenable; the law lords (except with reference to the
sixth question, as to the overruling the challenge to the array)
concurring in their opinions. Lord Denman here differed with the judges,
stating that Mr Justice Coleridge also entertained doubts upon the
subject; Lords Cottenham and Campbell shared their doubts, expressly
stating, however, that they would not have reversed the proceedings on
that ground. If they had concurred in reversing the judgment which
disallowed the challenge to the array, the only effect would have been,
to order a _venire de novo_, or a new trial. With seven of the
questions, therefore, we have here no concern, and have infinite
satisfaction in disencumbering the case of such vexatious trifling--for
such we consider it--and laying before our readers the remaining four
questions which tended to raise the SINGLE POINT on which the judgment
was reversed; a point, be it observed, which was not, as it could not in
the nature of things have been, made in the court below--arising out of
proceedings which took place after the court below, having discharged
their duty, had become _functi officio_. Those questions were,
respectively, the first, second, third, and last, (the eleventh,) and as
follow:--
_Question I._--"Are all, or any, and if any, which of the _counts of the
indictment, bad in law_--so that, if such count or counts stood alone in
the indictment, _no judgment_ against the defendants could properly be
entered upon them?"
_Question II._--"Is there any, and if any, what defect in the _findings
of the jury_ upon the trial of the said indictment, or in the _entering_
of such findings?"
_Question III._--"Is there any sufficient ground for _reversing the
judgment_, by reason of any defect in the indictment, or of the
findings, or entering of the findings, of the jury, upon the said
indictment?"
_Question XI._--"In an indictment consisting of counts A, B, C, when the
verdict is, _guilty of all generally_, and the counts A and B are good,
and the count C is bad; the judgment being, that the defendant, '_for
his offences aforesaid_,' be fined and imprisoned; which judgment would
be sufficient in point of law, if confined expressly to counts A and
B--can such judgment be reversed on a writ of error? Will it make any
difference whether the punishment be discretionary, as above suggested,
or a punishment fixed by law?"
The above questions may be stated shortly and substantially thus:--Are
there any _defective counts_ in the indictment? Any defective _findings_
of the jury? Any defects in _entering_ the findings? Can judgment be
reversed on any of these grounds? If one only of several counts in an
indictment be bad; a verdict given of "guilty" generally; judgment
awarded against the defendant "for _his offences_ aforesaid," and the
punishment discretionary--can judgment be reversed on a writ of error?
The whole matter may now, in fact, be reduced to this single question:
Can a judgment inflicting fine or imprisonment be reversed by a court of
error, because that judgment proceeded on an indictment containing both
_bad and good_ counts, and in respect of which _some_ of the findings of
the jury were either defective or defectively entered?--Let us now
listen to the decision of that venerable body of men, who are, in the
language of our great commentator, "_the depositaries of the laws, the
living oracles, who must decide in all cases of doubt, and who are bound
by an oath to decide according to the law of the land._"[8] The
questions which they had thus to consider, moreover, were not questions
of rare, subtle, unusual, and speculative, but of an ordinary practical
character, such as they were concerned with every day of their lives in
administering the criminal law of the country.
First, then, were there any bad counts in the indictment?
The judges were unanimously of opinion that TWO of the counts were bad,
or insufficient in law--and two only--which were the SIXTH and SEVENTH
counts. They hold positively and explicitly, that the remaining NINE
COUNTS WERE PERFECTLY VALID.
The Chief-Justice (Tindal) thus delivered this unanimous opinion of
himself and his brethren on this point.[9]
"No serious objection appears to have been made by counsel for the
prisoners, against the sufficiency of any of the counts prior to the
sixth. Indeed, there can be no question that the charges contained in
the FIRST FIVE COUNTS, _do amount in each to the legal offence of
conspiracy, and are sufficiently described therein_.
"We all concur in opinion as to the EIGHTH, NINTH, and TENTH counts, (no
doubt whatever having been raised as to the sufficiency of the ELEVENTH
count,) that the object and purpose of the agreement entered into by the
defendants and others, as disclosed upon those counts, is an agreement
for the performance of an act, and the attainment of an object, which is
a violation of the law of the land."
With reference to the SIXTH and SEVENTH counts, in the form in which
they stand upon their record, the judges were unanimously of opinion,
that these counts "did not state the illegal purpose and design of the
agreement entered into between the defendants, with such proper and
sufficient _certainty_ as to lead to the _necessary_ conclusion that it
was an agreement to do an act in violation of the law." They did not
show what sort of fear was intended by the alleged intimidation, nor
upon whom it was intended to operate, nor was it alleged that the
"physical force exhibited" was to be _used_, or _intended_ to be used.
Observed, therefore, on what grounds these two counts--two only out of
eleven--are held defective: they are deficient in that rigorous
"_certainty_" now held requisite to constitute a perfectly legal charge
of crime. To the eye of plain common sense--we submit, with the deepest
deference, to those who have held otherwise--they distinctly disclose a
_corpus delicti_; but when stretched upon the agonizing rack of legal
logic to which they were exposed, it seems that they gave way. The
degree of "certainty" here insisted upon, would seem to savour a little
(possibly) of that _nimia subtilitas quæ in jure reprobatur; et talis
certitudo certitudinem confundit_: and which, in the shape of "certainty
to a certain intent in every particular," is rejected in law, according
to Lord Coke, (5 _Rep._ 121.) It undoubtedly tends to impose inevitable
difficulty upon the administration of criminal justice. Sir Matthew Hale
complained strongly of this "strictness, which has grown to be a blemish
and inconvenience in the law, and the administration thereof; for that
more offenders escape by the over-easy ear given to exceptions in
indictments, than by their own innocence."--12 Hal. P. C. 193; 4 Bla.
Co. 376. The words, in the present case, are pregnant with irresistible
"inference" of guilt; an additional word or two, which to us appear
already implicitly there, as they are actually in the eleventh count,
would have dispersed every possible film of doubt; and Lord Brougham, in
giving judgment, appeared to be of this opinion. But now for the general
result: The indictment contained two imperfect counts, and nine perfect
counts, distinctly disclosing offences not very far short of treason.
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.
Then there remain FIVE PERFECT COUNTS WITH FIVE PERFECT FINDINGS, in the
opinion of all the judges and of all the law lords; those five _counts_
containing the gist of the whole charge against O'Connell and his
confederates--those five _findings_ establishing that the defendants
were guilty of the offences so laid to their charge. Blot out, then,
altogether from the record the six counts objectionable on the
above-mentioned grounds, how are the other five to be got rid of? Thus,
said the traversers' counsel. We have the entire record before us
containing all the eleven counts and findings, both good and bad; and we
find by the language of the record itself, that the judges, in passing
sentence, _took into consideration all the eleven counts_, as if they
had been valid counts with valid findings--for the judges expressly
inflicted punishment on each of the traversers "_for his_ OFFENCES
_aforesaid_." Is it not therefore plain to demonstration, that the
measure of punishment was governed by reference to six--_i. e._ a
majority--of eleven counts, which six counts had no more right to stand
on the record, entailing liability to punishment on the parties named in
them, than six of the odes of Horace? The punishment here, moreover,
being discretionary, and consequently dependent upon, and influenced by,
the ingredients of guilt, which it appears conclusively that the judges
took into their consideration?
Such was the general drift of the reasonings of the traversers' counsel.
What was their effect upon the assembled judges--those experienced and
authoritative expositors of the law of the land? Why, after nearly two
months' time taken to consider and ponder over the various points which
had been started--after anxious consideration and communication one with
another--they re-appeared in the House of Lords on the 2d of September;
and, led by one who will be on all hands admitted to be one of the most
experienced, gifted, profoundly learned, and perfectly impartial and
independent lawyers that ever presided over a court of justice--Sir
Nicholas Tindal--SEVEN out of _nine_ of the judges expressed a clear
unhesitating opinion, that the third and eleventh questions should be
answered in the negative--viz. that the judgment was in no way
invalidated--could be in no way impeached, by reason of the defective
counts and findings. The two dissenting judges who had been _hit_ by the
arguments of the traversers' counsel, were Baron Parke and Mr Justice
Coltman--the latter speaking in a confident, the former in a remarkably
hesitating and doubting tone. The majority consisted of Chief-Justice
Sir Nicholas Tindal, Mr Justice Patteson, Mr Justice Maule, Mr Justice
Williams, Mr Baron Gurney, Mr Baron Alderson, and Mr Justice Coleridge.
We have no hesitation in expressing our opinion, that the judgments
delivered by this majority of the judges stand on the immovable basis of
sound logic, accurate law, and good sense; and lament that our space
will not allow us to present our readers with the many striking and
conclusive reasonings and illustrations with which those judgments
abound. We can but glance at the _result_--leaving the _process_ to be
examined at leisure by those so disposed. The artful fallacies of the
traversers' counsel will be found utterly demolished. The first grand
conclusion of the judges was thus expressed by the Chief-Justice--
"I conceive it to be the law, that in the case of an indictment, if
there be ONE GOOD COUNT in an indictment upon which the defendants have
been declared guilty by proper findings on the record, and a judgment
given for the crown, imposing a sentence authorized by law to be awarded
in respect of the particular offence, that such judgment cannot be
reversed by a writ of error, by reason of one or more of the counts in
the indictment being bad in point of law."
The main argument of the traversers' counsel was thus disposed of--
"It was urged at your lordships' bar, that all the instances which have
been brought forward in support of the proposition, that one good count
will support a general judgment upon an indictment in which there are
also bad counts, are cases in which there was a motion in _arrest of
judgment_, not cases where a _writ of error_ has been brought. This may
be true; for so far as can be ascertained, there is no single instance
in which a writ of error has been ever brought to reverse a judgment
upon an indictment, upon this ground of objection. But the very
circumstance of the refusal by the court to arrest the judgment, where
such arrest has been prayed on the ground of some defective count
appearing on the record, and the assigning by the court as the reason
for such refusal, that there was one good count upon which the judgment
might be entered up, affords the strongest argument, that they thought
the judgment, _when entered up_, was irreversible upon a writ of error.
For such answer could not otherwise have been given; it could have had
no other effect than to mislead the prosecutor, if the court were
sensible at the time, that the judgment, when entered up, might
afterwards be reversed by a court of error."
The grand argument derived from _the language of the judgment_, was thus
encountered:--
"I interpret the words, 'that the defendant _for his offences_
aforesaid, be fined and imprisoned,' in their plain literal sense, to
mean _such offences as are set out in the counts of the indictment which
are free from objection, and of which the defendant is shown by proper
findings on the record to have been guilty_--that is in effect the
offences contained in the fifth and eighth, and all the subsequent
counts. And I see no objection to the word offences, in the plural,
being used, whether the several counts last enumerated do intend several
and distinct offences, or only one offence described in different
manners in those counts. For whilst the record remains in that shape,
and unreversed, there can be no objection in point of law, that they
should be called 'offences' as they appear on the record."
Now, however, let us see the view taken of the matter by Mr Baron
Parke--a man undoubtedly of acute and powerful mind, as well as accurate
and extensive learning. It is impossible not to be struck by the tone of
diffidence which pervades his judgment; and it was _delivered_ in a very
subdued manner, not usual with that learned judge; occasioned doubtless
by the pain with which he found himself, on an occasion of such
transcendent importance, differing from all his brethren but one. He
commenced by acknowledging the astonishment with which he had heard
counsel at the bar question the proposition _which he_ (Baron Parke)
_had always considered_, ever since he had been in the profession,
_perfectly settled and well established_, viz. that in criminal cases
one good count, though associated with many bad ones, would,
nevertheless, suffice to support a general judgment. But "he had been
induced to _doubt_ whether the rule had not been carried too far, by a
misunderstanding of the _dicta_ of judges on applications _in arrest of
judgment_."
To enable the lay reader to appreciate the novel doctrine which has been
sanctioned in the present case, it is requisite to understand clearly
the distinction to which we have already briefly adverted, between a
motion in _arrest of judgment_ and a _writ of error_. When a defendant
has been found guilty of an offence by the verdict of a jury, judgment
must follow as a matter of course, "_judgment_ being the sentence of the
law pronounced by the court upon the matter contained in the
record."[11] If, however, the defendant can satisfy the court that the
indictment is entirely defective, he will succeed in "_arresting,_" or
staying the passing of judgment; but if he cannot, the court will
proceed to _give judgment_. That judgment having been entered on the
record, the defendant, if still persuaded that the indictment is
defective, and consequently the judgment given on it erroneous, has one
more chance; viz. to _reverse_ the judgment which has been so given, by
bringing a writ of error before an appellate tribunal. Now, the exact
proposition for which the traversers' counsel contended was this--that
the rule that "one good count will sustain a general judgment, though
there are also bad counts in the indictment," is applicable to that
stage only of the proceedings at which a motion is made in arrest of
judgment; _i. e. before the judgment has been actually given_, and not
to the stage at which a writ of error has been obtained, viz. _after the
judgment has been actually given_.
This proposition was adopted by Mr Justice Coltman; while Mr Baron
Parke--for reasons substantially identical with those of Lords Denman,
Cottenham, and Campbell--declared himself unable to overthrow it.
As to the "opinion that one good count, properly found, will support a
judgment warranted by it, whatever bad counts there may be," Mr Baron
Parke said,--"I doubt whether this received opinion is so sufficiently
established by a course of usage and practical recognition, though
generally entertained, as to compel its adoption in the present case,
and prevent me considering its propriety. After much anxious
consideration, and weighing the difficulties of reconciling such a
doctrine with principle, I feel so much doubt, that I cannot bring
myself to concur with the majority of the judges upon this question."
Without for one moment presuming to suggest any invidious comparison, we
may observe, that whatever may be the learning and ability of the two
dissenting judges, the majority, with Sir Nicholas Tindal at their head,
contains some of the most powerful, well-disciplined, long-experienced,
and learned intellects that ever were devoted to the administration of
justice, and all of them thoroughly familiar with the law and practice
in criminal proceedings; and as we have already suggested, no competent
reader can peruse their judgments without feeling admiration of the
logical power evinced by them. While Mr Baron Parke "_doubts_" as to the
soundness of his conclusions, they all express a clear and _decisive_
opinion as to the existence of the rule or custom in question as a rule
of law, and as to its reasonableness, utility, and justice.
The reading of these judgments occupied from ten o'clock on the Monday
morning till three o'clock in the afternoon, when the House adjourned
till Wednesday; having first ordered the opinions of the judges to be
printed. There were a considerable number of peers (among whom was the
Duke of Cambridge) present, and they listened attentively to those whom
they had summoned to advise them on so great an occasion. Lords
Brougham, Denman, Cottenham, and Campbell sat near one another on the
opposition side of the House, each with writing-tables before him; and
they, together with the Lord Chancellor, appeared to pay close attention
to what fell from the judges. The House of Lords on these great
occasions presents a very interesting and impressive appearance. The
Chancellor sits robed in his usual place, surrounded by the judges, who
are seated on the woolsacks in the centre of the house, all in their
full official costume, each rising to read his written judgment. If ever
man made a magnificent personal appearance among his fellows, it is Lord
Lyndhurst thus surrounded. At the bar of the house stood, or sat, the
majority of the counsel engaged on each side, as well as others; and the
whole space behind was crowded by anxious spectators, conspicuous among
whom were Messrs Mahoney and Ford, (two tall, stout, shrewd-looking
men,) the Irish attorneys engaged on behalf of the traversers. They and
their counsel appeared a trifle less desponding at the conclusion of
Baron Parke's judgment; but the impression was universal that the
Chancellor would advise the House to affirm the judgment, in accordance
with the opinions of so overwhelming a majority of the judges. No one,
however, could do more than guess the inclination of the law lords, or
what impression had been made upon them by the opinions of the judges.
When therefore Wednesday, the day of final judgment upon this memorable
and agitating case, had arrived, it is difficult to describe the
excitement and anxiety manifest among all the parties who densely
crowded the space between the door and the bar of the House. There were,
of course, none of the judges present, with the exception of Mr Baron
Rolfe, who, in plain clothes, sat on the steps of the throne, a mere
private spectator. There were about a dozen peers on the ministerial
benches, including Lord Wharncliffe, Lord Redesdale, Lord Stradbroke,
and others; and several peers (including Lord Clanricarde) sat on the
opposite benches. Lords Cottenham and Campbell sat together, frequently
in communication with each other, and occasionally with Lord Denman, who
sat near them, at the cross-benches, busily engaged in referring to
books and papers. Lord Brougham occupied his usual place, a little
nearer the bar of the House than Lords Cottenham and Campbell; and on
the writing-desks of all three lay their written judgments. All the
law-peers wore a serious and thoughtful expression of countenance--which
you scrutinized with eager anxiety in vain for any sign of the sort of
judgments which they had come prepared to deliver. The traversers'
leading counsel, Sir Thomas Wilde and Mr Hill, both stood at the bar of
the House in a state of very perceptible suspense and anxiety. The
Attorney-General for Ireland sat in his usual place--almost motionless,
as usual, from first to last--very calm, and watching the proceedings
with deep attention, seldom uttering more than a passing syllable to
those who sat next to him, _i. e._ the English Solicitor-General, and Mr
Waddington, and Mr Maule of the Treasury. After judgment had been
briefly given in Gray's case, a few moments' interval of silence
elapsed--the silence of suppressed anxiety and expectation. At length
the Lord Chancellor, who had been sitting with a very thoughtful air for
a few moments, slowly rose from the woolsack, and advanced to his proper
post when addressing the House, viz. at about a couple of yards'
distance to the left of the woolsack. Finding that his robes, or train,
had in some way got inconveniently disarranged, so as to interfere with
the freedom of his motions, he occupied several seconds in very calmly
putting it to rights; and then his tall commanding figure stood before
you, in all that tranquil grace and dignity of appearance and gesture,
for which he has ever been so remarkably distinguished. During the whole
time--exactly an hour--that he was speaking, his voice clear and
harmonious as usual, and his attitude and gesture characterized by a
graceful and easy energy, he never once slipped, or even hesitated for
want of an apt expression; but, on the contrary, invariably hit upon
_the very_ expression which was the most accurate, appropriate, and
elegant, for conveying his meaning. He spoke with an air of unusual
decision, and entirely _extempore_, without the assistance of a single
memorandum, or note, or law-book: yet the greater portion of his speech
consisted of very masterly comments on a great number of cases which had
been cited, in doing which he was as familiar and exactly accurate, in
stating not only the principles and distinctions involved, but the
minutest circumstances connected with them, as if the cases had been
lying open before him! His very first sentence put an end to all doubt
as to the conclusion at which _he_ had arrived. These were his precise
words--the last of them uttered with peculiar emphasis:--"My lords, I
have to move your lordships that the judgment of the court below in this
case be _affirmed_." He proceeded to compliment the judges on the
patient and laborious attention and research which they had bestowed
upon the case. "My lords," said he, "with respect to all the points
submitted to their consideration, with the exception of one
question--for in substance it _was_ one question--their opinion and
judgment have been unanimous. With reference to that one question, seven
of the learned judges, with the Chief-Justice of the Common Pleas at
their head, have expressed a distinct, a clear, and decided opinion
against the objections which were urged. Two other learned judges have
expressed an adverse opinion. I may be permitted to say--and all who
were present to hear them must agree with me--that it was an opinion
accompanied with much doubt and much hesitation. I think, under these
circumstances, that _unless your lordships are thoroughly and entirely
satisfied that the opinion of the great majority of the judges was
founded in palpable error_, your lordships will feel yourselves, in a
case of this kind, bound by their decision to adhere to and support
their judgment, and act in conformity with it." After briefly stating
the only question before them--viz. "whether, there being defective
counts in the indictment, and other counts with defective findings on
them, a general judgment can be sustained?"--he proceeded, "Your
lordships will observe that this is a mere technical question, though, I
admit, of great importance--never presented to the judges of the court
below, not calling in question their judgment in substance--but arising
entirely out of the manner in which that judgment has been entered up,
by those whose province it was to discharge that particular duty." He
then made the following decisive and authoritative declaration, which
all who know the accurate and profound learning and the vast judicial
experience of the Chancellor will know how to value. "Allow me, my
lords, to say, that _it has always been considered as a clear, distinct,
and undoubted principle of the criminal law of England, that in a case
of this nature a general judgment is sufficient_; and from the first
moment when I entered the profession, down to the time when I heard the
question agitated at your lordships' bar, I never heard it called in
question. I have found it uniformly and constantly acted upon, without
doubt, without hesitation. I find it in all treatises, in all
text-writers on the subject--not questioned, not doubted, not qualified,
but stated broadly and clearly. Now for the first time it has been
stated--and Mr Baron Parke himself admits that it _is_ for the first
time--that that rule applies only to motions in arrest of judgment. I
never before heard of such a limitation. I am quite sure that there is
no case to sanction it, no decision to warrant it, no authority to be
cited in support of it. I am quite satisfied, after all I have heard on
the subject, that there is no ground whatever for the doubt--no ground
whatever for the exception now insisted upon. * * * It is not NECESSARY
that the judgment should be awarded _with reference to any particular
count_. No such decision can be cited. No one not in the confidence of
the judges can tell in respect of what the judgment was awarded, _except
with reference to the record itself_. If there be defective counts, does
it by any means FOLLOW that the judges, in awarding judgment, appointed
any part of it with reference to the defective counts? There 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
its validity had been disputed, but established--I should leave
apportioned the sentence to the degree of criminality that was stated in
all the counts which were proved in evidence."--"I see no inconvenience
in compelling a judge to form an opinion on the validity of the counts,
before he proceeds to pass judgment. He ought to take care that a count
is good before he allows a verdict to be taken, or at least judgment to
be entered upon it; and great good will arise from that practice. I am
deliberately of opinion that this is a right and wholesome practice,
producing no inconvenience, and affording a great security for justice.
* * * In criminal cases, all difficulty may be entirely avoided by the
court passing a separate judgment on each count, and saying, 'We adjudge
that on this count, on which the prisoner is found guilty, he ought to
suffer so much; that on the second count, having been found guilty, he
ought to suffer so much; whether the count turn out to be good or not,
we shall pronounce no opinion; that question would be reserved for a
superior court. A court of error would then reverse the judgment only on
such counts as could not be supported in law--leaving that to stand
which had proceeded on valid charges."--"Where a felony was established,
requiring a capital punishment, or transportation for life, the number
of counts could make no difference; because the punishment pronounced on
any one exhausted the whole materials of punishment, and admitted of no
addition."--"The current notion, that one count alone could support any
sentence applicable to the offences stated in the whole indictment, can
be accounted for only by Lord Mansfield's general words, needlessly and
inconsiderately uttered, hastily adopted, and applied to a stage of the
proceedings in which they are not correct in law."
Then came Lord Cottenham--a cold, clear-headed lawyer, cautious, close,
and accurate in his reasonings, and very tenacious in adhering to his
conclusions: possessing the advantage of several years' judicial
experience--as an equity judge. Thus he addressed himself to _the point_
of the case:--
"_Is there error upon the record?_"
* * * Did not the court below pass sentence upon the offences charged in
the _first_, _second_, _third_, _fourth_, _sixth_, and _seventh_ counts
in the indictment, as well as upon the offences charged in the other
counts? The record of that court tells us that it _did_; and if we are
to see whether there be any error on that record, and adopt the
unanimous opinion of the judges, that those six counts, or the findings
on them, are so bad that no judgment upon them would be good, how can we
give judgment for the defendant, and thereby declare that there is _no
error_ in the record? The answer which has been given to this objection
appears not only unsatisfactory, but inadmissible. It is said that we
must presume that the court below gave judgment, and passed sentence,
only with reference to the unobjectionable counts and findings. That
would be to presume that which the record negatives. By that record the
court tells us that the sentence on each defendant was 'for his offences
aforesaid,' after enumerating all those charged in the indictment. Are
we, after and in spite of this, to assume that this statement is false,
and that the sentence was upon one-half only of the offences charged? *
* * We can look to the record only for what passed in the court below;
and as that tells us the sentence was passed _upon all the offences of
which the jury had found the defendants guilty_, we cannot presume to
the contrary of such a statement. It would be the presumption of a fact,
the contrary of which was known to all to be the truth. The argument
supposes the court below to have been right in all particulars; but the
impossibility of doing so on this record was felt so strongly, that
another argument was resorted to, (not very consistently with the
judgment, for it assumes that the jury may have been wrong upon every
count but one,) namely, that a court of error has to see only that there
is _some one offence properly charged_, or a punishment applicable to it
inflicted; and then, that being so, that as to all the other counts the
court below was wrong--all such other counts or findings being bad.
"Consider what is the proposition contended for. Every count in an
indictment for misdemeanour is supposed to apply to a different offence:
they often do so, and always may; a prosecutor having the option of
preparing a separate indictment for each, or of joining all as one. If
he adopt the former course, he must, to support the sentence, show each
indictment to be right. If he adopt the latter course--viz. going upon
one indictment containing several counts, and one sentence is pronounced
upon all the counts, according to the proposition now contended for;
suppose the sentences to be bad on all the counts _but one_, that one
applying to the most insignificant offence of the whole; a court of
error, it is said, has no right to interfere! That is to say, it cannot
correct error except such error be _universal_;--no matter how important
that error, no matter how insignificant the portion which is right, nor
what may have been the effect of such error! The proposition will no
longer be 'in _nullo_ est erratum,' but that the error is
not--_universal_. If neither of these arguments prove that there is
manifest error upon the record, and it is not for a court of error to
enter into any consideration of the effect which such error may have
produced, it has no power to alter the verdict, and can form no opinion
of its propriety and justice from mere inspection of the record, which
is all the judicial knowledge a court of error has of the case. _Upon
what ground_ is it to be assumed, in any case, that the court below, if
aware of the legal insufficiency of any of the counts, or of the
findings upon them, would have awarded the same punishment? It _could_,
probably, do so in many cases--but in many it as certainly would not. If
the several counts were only different modes of stating the same
offence, the insufficiency of some of those counts could not affect the
sentence; but if the different counts stated--as they well
might--actually different misdemeanours, and, after a verdict of guilty
_upon all_, it were found that some of _such_ counts--that is, that some
of the misdemeanours--charged, must be withdrawn from the consideration
of the court, by reason of defects in either the counts themselves or
the findings upon them, it cannot, in many cases, be supposed that the
sentence could be the same as if the court had the duty thrown upon it
of punishing _all the offences charged_. This may be well illustrated by
supposing an indictment for two libels in different counts--the first of
a slight, the other of an aggravated character--and verdict and judgment
upon both; and the count charging the malignant libel, or the finding on
it, held to be bad. Is the defendant to suffer the same punishment as if
he had been properly found guilty of the malignant libel?" The reason
why the rule in civil actions does not apply to _motions in arrest of
judgment_ in criminal cases, is plainly this:--because the court,
_having the sentence in its own hands_, will give judgment 'on the part
which is indictable'--and the failure of part of the charge will go only
to lessening the punishment. These reasons, however, have plainly no
application to _writs of error_; because _a court of error_ CANNOT, _of
course, confine the judgment to those parts which are indictable, or
lessen it, as the different charges are found to fail_."
"The only inconvenience," added his lordship, "which can arise from the
rule we are laying down, will be, that the prosecutor must be careful as
to the counts on which he means to rely: _the evidence at the trial_
must afford him the means of making the selection--and the defendant has
now the means of compelling him to do so."
Such was, in substance, Lord Cottenham's judgment. He read it in his
usual quiet, homely, matter-of-fact manner, as if he were not at all
aware of, or cared not for, the immense importance and public interest
attaching to the publication of the conclusion at which he had arrived.
Then rose Lord Campbell. In a business-like and satisfactory manner he
went briefly over all the points which had been made by the plaintiffs
in error, disposing of them all in favour of the crown, (expressing,
however, doubts on the subject of the challenge to the array,) till he
came to THE POINT--which he thus approached:--"I now come, however, to
considerations which induce me, _without hesitation_, humbly to advise
your lordships to reverse this judgment." He was brief but pithy in
assigning his reasons.
"According to the doctrine contended for on the part of the crown," said
his lordship, adopting two cases which had been put by, we believe, Mr
Peacock in his argument, "the following case may well happen. There may
be an indictment containing two counts, A and B, for separate offences;
A being a good count, B a bad one. The court below may think A bad and B
good; and proceed to sentence the defendant to a heavy punishment merely
in respect of B, which, though it may contain in reality not an offence
in point of law, they may consider to contain one, and of signal
turpitude. On a writ of error, the court above clearly sees that B is a
bad count; but cannot reverse the judgment, because there stands count A
in the indictment--and which, therefore, (though for a common assault
only,) will support the heavy fine and imprisonment _imposed in respect
of count B_! Let me suppose another case. An indictment contains two
counts: there is a demurrer[13] to each count: each demurrer is
overruled, and a general judgment given that the defendant, 'for his
offences aforesaid,' shall be fined and imprisoned. Is it to be said,
that if he bring a writ of error, and prove one count to be bad, he
shall have no relief unless he shows the other to be bad also?"
He concluded a brief commentary (substantially identical with that of
Lord Cottenham) on the authorities cited, by affirming that "there was
neither text-book, decision, nor _dicta_ to support a doctrine so
entirely contrary to principle."
This is how his lordship thinks the like mischief may be obviated in
future:--
"If bad counts are inadvertently introduced, the mischief may be
_easily_ obviated by taking a verdict of acquittal upon them--by
entering a _nolle prosequi_ to them, or by seeing that the judgment is
expressly stated to be on the good counts only, which alone could
prevent the bad counts from invalidating the judgment upon a writ of
error."
As to the notion that the judges were uninfluenced in passing sentence
by the first three counts, on which there were numerous findings, he
observed, that--"We cannot resort to the _palpably incredible fiction_
that the judges, in violation of their duty, did not consider the guilt
of the parties aggravated by the charges in these three counts, and
proportionally increase their punishment."
After an unsuccessful attempt on the part of one or two lay peers who
had not heard the whole argument, to vote--which was resisted by both
the Lord Chancellor and Lord Wharncliffe, and Lords Brougham and
Campbell--the Lord Chancellor finally put the question:--
"Is it your lordships' pleasure that this judgment be reversed?--As many
as are of that opinion, will say '_Content_.' As many as are of a
contrary opinion, will say '_Not Content_.'"
"_Content!_" exclaimed Lords Denman, Cottenham, and Campbell.
"_Not Content!_" said the Lord Chancellor and Lord Brougham.
_Lord Chancellor._ "The _Contents_ have it. The judgment is Reversed."
The instant after these pregnant words had been uttered, there was a
rush of persons, in a state of the highest excitement and exultation,
towards the door; but the lords calmly proceeded to give judgment in a
number of ordinary appeal cases. The Attorney-General for Ireland, who
had been watching the whole of the day's proceedings with close
attention, heard the result with perfect composure; but as several
portions of the judgments of Lords Denman, Cottenham, and Campbell were
being delivered, a slight sarcastic smile flitted over his features. As
we have mentioned him, let us take this opportunity of bearing testimony
to the very great ability--ability of the highest order--with which he
has discharged _his_ portion of the duty of conducting these
proceedings, unprecedented in their harassing complexity and their
overwhelming magnitude. He has manifested throughout--'bating a little
irritability and strictness in petty details at starting--a
self-possession; a resolute determination; a capability of coping with
unexpected difficulty; a familiarity with constitutional law; a mastery
over the details of legal proceedings; in short, a degree of forensic
ability, which has been fully appreciated by the English bar, and
reflects credit upon those who placed him in his arduous and responsible
office. In terms of similar commendation we would speak of the Irish
Solicitor-General, (Mr Sergeant Green.) Accustomed as we are to witness
the most eminent displays of forensic ability, we feel no hesitation in
expressing our opinion, that the Solicitor-General's reply at the trial,
and the Attorney-General's reply on the motion for a new trial, were as
masterly performances as have come under our notice for very many years.
We have thus laid before our readers, with the utmost candour and care,
this truly remarkable case; and at a length which, though considerable,
is by no means incommensurate with its permanent interest and
importance. We believe that we have, in the foregoing pages, furnished
all persons, of average intellect and information, with the means of
forming for themselves a sound opinion as to the propriety or
impropriety of reversing the judgment of the court below. We have given
the arguments on both sides with rigid impartiality, and supplied such
information, in going along, as will enable the lay reader thoroughly to
understand them. This is a question which all thinking persons must
needs regard with profound interest and anxiety. If, in the deliberate
opinion of the country, the judgments of the High Court of Parliament
are habitually, though unconsciously, warped by party and political
feelings and prejudices; if, with such views and intentions, they have
strained and perverted the law of the land, wickedly sheltering
themselves under the unfortunate difference of opinion existing among
the judges, those who have been guilty of it will justly stand exposed
to universal execration. It is no light matter even to propose such a
possibility as that of profligacy or corruption in the administration of
justice; above all, in the highest tribunal in the land--the place of
last resort for the subject. It is always with pain and regret that we
hear, even in the height of political excitement and hostility, the
faintest imputation from any quarter on judicial integrity. We have
watched this case from first to last; and especially examined over and
over again, in a spirit of fearless freedom, the grounds assigned for
reversing the judgment, and the position and character of those by whose
_fiat_ that result was effected. We cannot bring ourselves to believe
any thing so dreadful as that three judicial noblemen have deliberately
violated their oaths, and perpetrated so enormous an offence as that of
knowingly deciding contrary to law. Those who publicly express that
opinion, incur a very grave responsibility. We are ourselves zealous,
but independent supporters of the present government; we applaud their
institution of these proceedings; no one can lament more bitterly than
we do, that O'Connell should, like many a criminal before him, have
escaped from justice through a flaw in the indictment; yet with all
this, we feel perfectly satisfied that the three peers who reversed the
judgment against him, believed that they were right in point of law.
When we find so high an authority as Mr Baron Parke--as far as politics
are concerned, a strong Conservative--declaring that he cannot possibly
bring himself to concur in opinion with his brethren; that another
judge--Mr Justice Coltman--after anxious deliberation, also dissents
from his brethren; and when we give each of these judges credit for
being able to appreciate the immense importance of _unanimity_ upon such
a case as the present, had it been practicable--can it seem really
unreasonable or surprising, that a corresponding difference of opinion
should exist among the peers, whose judicial duty it was to decide
finally between the judges? It _is_, certainly, a matter calculated to
attract a _moment's_ attention, that the judgment should have been
reversed by the votes of three peers who concur in political opinion,
and opposition to the government who instituted the prosecution. But in
fairness, put another possible case. Suppose Lord Abinger had been
alive, and had concurred with the Chancellor and Lord Brougham, would
not another class of ardent partisans as naturally have remarked
bitterly upon the coincidence of opinion between the peers whose three
voices concurred in supporting the judgment of the court below?
While we thus entirely exonerate Lords Denman, Cottenham, and Campbell
from all imputation of intentionally giving effect to party and
political bias, it is difficult to suppose them, or any other peer,
entirely free from _unconscious_ political bias; but in the nature of
things, is it not next to impossible that it should be otherwise, in the
case of men who combine in their own persons the legislative and
judicial character, and in the former capacity are unavoidably and
habitually subject to party influences? When a Judicial question is
under consideration, of such extreme doubtfulness as almost to justify a
vote either way, (we must deal with men and things as we find them,) can
it excite great surprise, if even in the most honourable minds a
political bias should _unconsciously_ evince its presence, and just
turn the scale?
But here the case has turned upon one single point of the purest
technicality, which the House of Lords has deemed sufficient to cause 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
law[16]--"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, and points out to the jury two bad
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 Parke[19] 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 crime goes unpunished. If the new rule is to be really acted upon in
future, we must, in some way or other, alter the whole machinery of the
criminal law: but how to do so, without seriously interfering with the
liberty of the subject, we know not.
We affirm, therefore, that the old rule--viz. that one good count would
support a general verdict and judgment, though the indictment contained
bad ones also--was a beneficial rule, calculated to obviate _inevitable_
difficulties; and its policy was so transparent to all the great
intellects which have, both as judges or counsel, been for so long a
series of years concerned in criminal cases, that no one ever thought of
questioning it. The supposition of the three peers is one not very
flattering to the distinguished predecessors, with the great Lord
Mansfield at their head--all of whom it charges with gross negligence,
ignorance, and, in plain words, stupidity--in overlooking, from time to
time, a point so patent and glaring. The Lord Chancellor's answer to
their argument is triumphant; and we refer the reader to it.[24] We
respectfully and firmly enter our protest against Lord Denman's mode of
getting rid of the efficacy of a custom or practice which has been so
long observed by the profession; and regard it as one calculated to sap
the foundations of the common law of the land. An opinion, a practice
which has stood its ground for so long a series of years _unchallenged_,
amidst incessant provocation to challenge it--and that, too, in the case
of men of such vigilant astuteness, learning, and determination as have
long characterized the English Bench and Bar--rest upon as solid grounds
as are conceivable, and warrants it subversion only after profound
consideration, and _repeated evidence of its mischievous operation_. Was
any such evidence offered in the argument at the Bar of the House of
Lords, of persons who had suffered either a kind or a degree of
punishment not warranted by law? None: but several cases were put in
which--in spite of past experience to the contrary--inconvenience and
injustice _might possibly_ be conceived to occur hereafter!
What, then, led to this error--for error we must call it? Let us
candidly express our opinion that the three peers were fairly
"_overpowered_"--to adopt the frank acknowledgment of one of the most
distinguished among them--by the plausible fallacies urged upon them,
with such unprecedented pertinacity and ingenuity, by the traversers'
counsel. They have been influenced by certain disturbing forces, against
which they ought to have been vigilantly on their guard, and which we
shall now venture to specify, as having occasioned their _forgetfulness
of the true province of a court of error_--of the functions and duties
of the members of such a court. A COURT OF ERROR occupies a high, but
necessarily a very limited, sphere of action. Their observations and
movements are restricted to the examination of a single document, viz.
the record, which they are to scrutinize, as closely as possible,
without regard to any of the incidents which may have attended the
progress of the events narrated in it, if these incidents do not appear
upon record: and they must be guided by general principles--not such as
might properly regulate a certain special and particular case, but such
as would guide them in all cases. And this is signified by the usual
phrase, that they "must not travel out of the record." Now, we defy any
one to read the judgments of the three peers, without detecting the
undue influence which one extrinsic and utterly inadmissible fact has
had upon their minds; viz. the fact, that the court below had actually
_affirmed_ the validity of the two bad counts. They speak of its being
"_against notorious facts_"--against "_common probabilities_," a
"palpably incredible fiction"--to conclude from the language of the
record, that the "offences" there mentioned did not include the pseudo
offences contained in the sixth and seventh counts. In this particular
case, it _did_ undoubtedly happen, in point of fact, that the court
below decided these counts to be valid counts: but the court of error
can take no cognisance whatever of extrinsic facts. _Their_ only source
of information--_their_ only means of knowledge, is _the record_--beyond
the four corners of which they have no power, no authority, to cast a
single glance; and within which are contained all the materials upon
which, by law, the judges of a court of error can adjudicate and decide.
The Court, in the present case, ought thus to have contemplated the
record in the abstract--and with reference to the _balance of
possibilities_ in such cases, that the court below had affirmed, or
condemned the vicious counts: which very balance of possibilities shows
the impropriety of being influenced by speculations based on matters
_dehors_ the record. However numerous and mischievous may have been the
errors committed by the inferior court, _a court of error_ can take no
cognisance of them, if they do not appear specifically and positively
upon the record, however valid may be the claim which these errors may
notoriously prefer _to the interference of the executive_. Consider what
a very serious thing it is--what a shock to the public confidence in the
administration of justice--to reverse a judgment pronounced after due
deliberation, and under the gravest responsibilities, by a court of
justice! The law and constitution are properly very tender in the
exercise of such a perilous power, and have limited it to the case of
"MANIFEST" error--that is, not the vehement, the immense _probability_
that there has been error--but the CERTAINTY of such error _necessarily
and exclusively appearing from the record itself_. To act upon
speculation, instead of certainty, in these cases, is dangerous to the
last degree, and subversive of some of the fundamental principles of
English jurisprudence. "Judgment may be reversed in a criminal case by
writ of error," says Blackstone, "for NOTORIOUS (_i. e._ palpable,
manifest, patent) mistakes in the judgment, as when a man is found
guilty of PERJURY, (_i. e._ of a misdemeanour,) and RECEIVES THE
JUDGMENT OF FELONY." This is the true doctrine; and we submit that it
demonstrates the error which has been committed in the present instance.
Let us illustrate our case by an example. Suppose a man found guilty
under an indictment containing two counts, A and B. To the offence in
count A, the legislature has annexed one punishment only, viz.
_transportation_; to that in count B, _imprisonment_. The court awards
sentence of transportation; and, on a writ of error being brought, the
court above pronounces count A to be bad. Here it appears INEVITABLY and
"manifestly" _from the record_, that there has been error; there is no
escaping from it; and consequently judgment _must_ be reversed. So where
the judgment is the infliction of punishment "for his offen_ces_"
aforesaid: there being only two offences charged, one of which is
contained in a bad count, containing therefore no "_offence_" at all.
Apply this principle to the present case. Does this record, in
sentencing the defendant "for his offences aforesaid," _conclusively_
and _necessarily_ show that the court regarded the sixth and seventh
counts as containing "offences," and awarded punishment in respect of
them? We unhesitatingly deny it. The merest tyro can see that it is
_possible_--and, if so, where is the NECESSARY error?--that the judges
excluded the vicious counts from their consideration; that they knew the
law, and could discern what were and what were not "offences;" and
annexed punishment to only true "_offences_" in the eye of the law. The
word "offence" is a term of art, and is here used in its strictest
technical sense. What is that sense? It is thus defined by an accurate
writer on law: "an _offence_ is an act committed _against a law_, or
omitted _when the law requires it_, and punishable by it."[25] This word
is, then, properly used in the record--in its purely technical sense. It
can have no other meaning; and an indictment cannot, with great
deference to Mr Baron Parke,[26] contain an "offence" which is not
"legally described in it;" that is, unless any act charged against the
defendant be shown upon the face of the indictment to be a breach of the
law, no "_offence_," as regards that act, is contained in or alleged by
the indictment. The House of Lords, therefore, has exceeded the narrow
province and limited authority of a _court of error_, or has presumed,
upon illegal and insufficient grounds, that the Irish judges did not
know which were, and which were not "_offences_," and that they did, in
fact, consider those to be offences which were not, although the record
contains matter to satisfy the allegation to the letter--viz. a
_plurality_ of real "offences." Where is Lord Campbell's authority for
declaring this judgment "_clearly_ erroneous in awarding punishment for
charges which are _not offences in point of law_?" Or Lord Cottenham's,
for saying that "the record states that the judgment was _upon all the
counts, bad as well as good_?" They have none whatever; their assertions
appear to us, with all due deference and respect, purely arbitrary, and
gratuitous fallacies; they do violence to legal language--to the
language of the record, and foist upon it a ridiculous and false
interpretation. We admit, with Lord Cottenham, that "where the sentence
is of a nature applicable _only_ to the bad counts," it is incurably
vicious, and judgment must be reversed--it is the very case which we put
above; but how does that appear in the judgment under consideration? Not
at all. The two cases are totally different.
And this brings us to another palpable fallacy--another glaring and
serious error into which we cannot help thinking the House of Lords has
fallen, and which is abundantly evidenced by their judgment: viz. that a
court of error has any concern whatever with, or can draw any inference
whatever from, the AMOUNT of punishment. The reasoning of the judges is
here perfectly conclusive. "If a sentence be OF THE KIND which the law
allows, the _degree_ of it is not within the competence of a court of
error. If a fine be an appropriate part of the sentence of a court
below, the excess of it is no ground of error. What possible line can be
drawn as to the reasonableness and excess, so as to affect it with
illegality? It is obvious there can be none. If in _this_ case, the
sentence had been _transportation_, the sentence would have been
_illegal_: Why? Because not of _the kind_ authorized by law in such a
case." Any presumption, therefore, made by a court of error, from the
_amount_ of punishment awarded, as to which of the counts had been taken
into consideration by the judges in giving their judgment, is manifestly
based upon insufficient and illegal grounds. Can these principles have
been duly pondered by the lords? We fear not. Look at Lord Cottenham's
supposition of two counts for libel: one for a very malignant one, the
other for one comparatively innocuous; and a sentence of heavy fine and
imprisonment passed, evidently in respect of the malignant libel, which
a court of error decides to be no libel at all. Lord Cottenham appears
to rely greatly on this supposed case; but is it not perfectly clear,
that it is not a case of error _on the record_--and therefore totally
inapplicable to the case which he had to consider? The defendant would
have certainly sustained an injury in that case; Where is the remedy?
There is _no legal_ remedy, any more than there is when a man has been
wrongfully _acquitted_ of a manifestly well-proved crime, or unjustly
convicted of a felony. The mercy, or more properly the sense of
_justice_ entertained by the _executive_, must be appealed to in either
case; such power of interposition having, in the imperfection of human
institutions, been wisely reserved to the supreme power to afford
redress in all cases where the LAW cannot. Lord Cottenham's reasoning
appears to us, in short, based upon two fallacies--a _petitio
principii_, in _assuming_ that judgment was entered upon all the counts;
the _question_ being, _was_ it so entered? The other is, that a court of
error is competent to infer, from the _amount_ of punishment, that a
defendant has been sentenced upon bad counts. Again: the three peers
admit, that if a sole count contain a quantity of aggravating, but
really "_irrelevant stuff_" (to adopt Lord Denman's expression,) it will
not prejudice the judgment, provided the count also contain matter which
will legally support that judgment. Why should the judges be given
credit for being able to discard from consideration these legally
extrinsic matters in a single count, and not also, by the exercise of
the very same discretion, be able to discard, in considering the record,
irrelevant and insufficient counts, such as in the eye of the law have
no existence, are mere nonentities?
For these, and many other reasons which might be assigned, had we not
already exceeded our limits, we have, after a close and a candid study
of the judgments delivered by the three peers, and the convincing, the
conclusive judgments of the great majority of the judges, come, without
hesitation, to the conclusion, that the Lords have not merely decided
incorrectly, but have precipitately removed a chief corner-stone from
the fabric of our criminal law, and have incurred a very grave
responsibility in so doing. We cannot help thinking, that they have
forgotten the fundamental distinction which our constitution makes
between "jus _dare_" and "jus _dicere_." _Jus dederunt, non jus
dixerunt_--an error, however, easily to be accounted for, by a reference
to their double capacity, and the confusion it occasions between their
judicial and legislative functions. We view with grave apprehension the
power exercised by three members of the House of Lords, of overturning
so well-established a rule and custom as that attested to them by the
judges. What security have we for the integrity of our common law? In
the face of the judges' decisions, how decorous and dignified would have
been the conduct of the House of Lords in giving way, even if they had
differed from the judges; lamenting that such _was_ the law of the land,
and resolving to try and persuade the legislature to alter it, as has
often been done. Witness the statute of 1 and 2 Geo. IV. c. 78, passed
in consequence of the decision of the House of Lords in _Rowe_ v.
_Young_, 2 Brod. and Bing. 165. The House of Commons has resented such
interference with the laws by the House of Lords; who, in the case of
_Reeve_ v. _Young_, (1 Salkeld, 227,) "_moved by the hardship of the
case_, reversed the judgments of the courts below, contrary to the
opinion of all the judges." But the House of Commons, "_in reproof of
this assumption of legislative authority in the Lords_," immediately
brought in the 10 and 11 Will. III. c. 16, which passed into a
statute.[27] May we venture to suggest that the elaborate, and long,
and deeply-considered opinions of the judges of the land, who had been
summoned by the Lords to advise them, were worthy of more than the
single day, or day and a half's examination which they received before
they were so peremptorily pronounced to be "_clearly_ erroneous?" And
may we, with no little pain, suggest to Lord Campbell, that the array of
_Gamaliels_ at whose feet he had _sate_ during his whole life--whose
feet he had indeed so very recently quitted--whose integrity, whose
profound learning, whose sagacity, none has had larger experience of
than he--are entitled to look at his cavalier-like treatment of their
best services, with a feeling stronger than that of mere surprise? In
concluding this long article--in expressing our conviction of the error
of the Lords--we feel one consolation at all events--that if we err, we
err in good company; and that we are not conscious of having
transgressed the limits of legitimate discussion, in exercising as
undoubted a right of its kind, as these three peers exercised in
branding so overwhelming a majority of the judges of the land with the
imputation of ignorance of those laws which all their lives had been
spent in administering. The very existence of the ancient common law of
the land is put in jeopardy by such a procedure as that which we have
been discussing; and our honest conviction, however erroneous, that such
is the case, will suffice to excuse the freedom of our strictures; if,
indeed, we require an excuse for echoing the stern declaration of on
forefathers--_Nolumus leges Angliæ mutari_.
As to him who has reaped the benefit of this lamentable miscarriage--Mr
O'Connell--the law of the land has nevertheless been vindicated, and the
stability of the empire secured, to a far greater extent than he is
willing to acknowledge. Agitation he must continue; he _must_ play out
his base and sordid game. But his powers of mischief are manifestly and
seriously crippled; and we quit him with the language addressed by Pope
to a mean one of _his_ day--
"Uncaged, then let the harmless monster rage--
Secure in dulness, madness, want, and age!"
FOOTNOTES:
[1] See the Judgment of the Judges, ordered by the House of Lords to be
printed, (and from which the quotations in this article have been made,)
read to the House of Lords by Lord Chief-Justice Tindal, on the 2d
September 1844.
[2] State Prosecutions, pp. 9, 10. No. CCCXXXIX. Vol. LV.
[3] Blackstone's Commentaries, vol. i. p. 302.
[4] Several distinct offences may undoubtedly be included, in as many
counts, in one indictment.
[5] Two of the defendants' (the two priests) names do not appear in the
record of the verdict, as one of them (Tyrrell) died before the trial,
and as to Tierney, the Attorney-General entered a _nolle prosequi_.
[6] _Comyn's Digest_, title _Pleader_, 3 B. 18.
[7] This is the proper expression. See _M'Queen's Practice of the House
of Lords,_ p. 256. "They are summoned _for their advice in point of
law_, and the greater dignity of the proceedings" of the
Lords.--(_Blackst, Comm._ p. 167.)
[8] 1 _Blackstone's Commentaries,_ p. 69.
[9] Opinions of the Judges, &c.--(Pp. 1-3.)
[10] Opinions of the Judges, p. 23.
[11] 3 _Blackstone's Commentaries_, p. 395.
[12] We quote from the edition of Lord Denman's judgment, sanctioned by
himself, and edited by D. Leahy, Esq., (one of the counsel in the
cause.)
[13] A "_demurrer_" is the mode by which any pleading, civil or
criminal, is denied to be (whether in form or substance) sufficient in
point of _law_; and a _plea_ is the mode by which is denied the _truth_
of the _facts_ which the pleading alleges.
[14] Opinions of the Judges, p. 19.
[15] Vol. I., pp. 68-9.
[16] Williams v. Germaine, 7 Bar. and Cress. 476.
[17] Opinions of the Judges, p. 17.
[18] Judgment, (by Leahy,) p. 36.
[19] Opinions of the Judges, p. 28.
[20] Judgment, &c., p. 43.
[21] Opinions of the Judges, p. 28.
[22] Lord Denman's judgment.
[23] Ditto.
[24] Ante.
[25] West's Symbolography, and Jacob's and Tomlin's Law.
[26] Opinions of the Judges, p. 29.
[27] 2 Bla. Comm. 169; and see Mr Christian's Note.
MY COLLEGE FRIENDS.
No. I
JOHN BROWN.
Did you ever happen to know a man who spent a whole Christmas vacation
in Oxford, and survived it? I did. And this is how it came to pass.
"Frank," said the governor one evening after dinner, when the
conversation had turned upon my approaching return to college, and the
ticklish question of supplies had been disposed of--"when the deuce do
you mean to go up for your degree? I have a notion this next term is
your fifteenth, young man?"
"Why no, sir--that is, not exactly; you know"----
"Oh! true--I forgot that confounded rustication business. Well, it's
your fourteenth at all events, and I think that's enough."
"Well, sir, I was thinking to have a shy at it after Christmas."
"Shy at it! You've always been _shying_ at it, I think. I hope it mayn't
end in a _bolt_, Master Frank!"
I laughed dutifully at the paternal wit, and promised to go to work in
earnest the moment I reached Oxford.
This was a resolution announced periodically like the ballot question,
and with much the same result. So the governor only shook his head,
yawned, looked at the bottle, which stood between us nearly empty, and
prepared apparently for an adjournment.
"I'll tell you what, sir," said I, emptying what remained in the
decanter into my glass, and swallowing it with a desperate energy
befitting the occasion, "I'll stay up the Christmas vacation and read."
"The deuce will you! Why, Frank," continued the governor, sorely
puzzled, "you know your cousins are coming here to spend the Christmas,
and I thought we should all make a merry party. Why can't you read a
little at home? You can get up something earlier, you know--much better
for your health--and have two hours or so clear before breakfast--no
time like the morning for reading--and then have all the day to yourself
afterwards. Eh, why not, Frank?"
"If you'll allow me to ring for another bottle of this Madeira, sir, (I
declare I think it's better than our senior common-room have, and they
don't consider theirs small-beer,) I'll tell you.----I never could read
at home, sir; it's not in the nature of things."
"I doubt whether it's much in your nature to read any where, Frank: I
confess I don't see much signs of it when you are here."
"In the first place, sir, I should never have a room to myself."
"Why, there's the library for you all day long, Frank; I'm sure I don't
trouble it much."
"Why, sir, in these days, if there are any young ladies in the house,
they take to the library as a matter of course: it's the regular place
for love-making: mammas don't follow them into the company of folios and
quartos while there are three volumes of the last novel on the
drawing-room table; and the atmosphere is sentimentality itself; they
mark favourite passages, and sigh illustrations."
"Precious dusty work, Frank, flirtations among my book-shelves must be;
but I suppose the girls don't go much beyond the bindings: they don't
expect to get husbands by being blue."
"Not exactly, sir; reviews and title-pages constitute a good part of
modern literary acquirements. But upon my honour, sir, one hears young
ladies now talk of nothing but architecture and divinity. Botany is
quite gone out; and music, unless there's a twang of Papistry about it,
is generally voted a bore. In my younger days--(really, sir, you needn't
laugh, for I haven't had a love affair these two years)--in my younger
days, when one talked about similarity of tastes and so forth, it meant
that both parties loved moonlight, hated quadrilles, adored Moore's
Melodies, and were learning German; now, nine girls out of ten have a
passion for speculative divinity and social regeneration."
"Ay, one sort of nonsense does just as well for them as another: your
cousin Sophy bothers me to build an Elizabethan pigsty, and wanted her
poor mother to dance with the butler in the servants' hall last
Christmas, when the fellow was as drunk as an owl: I hope it mayn't end
in her figuring off herself with the footman; for Sophy is rather a pet
of mine, and a right-down English girl after all. But, Frank, if you
can't read in peace in the library, you surely could have a room fitted
up for yourself up stairs; and you shall have the great reading-desk,
with lights, that was your grandfather's, that stands in my little
sanctum; (he made more use of it, poor man, than I do;) or I don't know
but what I might spare you the little room itself, if it would suit
you--eh?"
"Oh, my dear father! I wouldn't disturb you on any account," said I,
rather alarmed at the extent of my worthy parent's liberality in the
cause, and fearing it might end in the offer of the whole family to pack
themselves in the attics, and leave me a first floor to
myself--calculating, too, the amount of hard reading commensurate with
such imposing preparations. "What would become of the justice business
of the parish, sir, if we shut up your tribunal? I don't suppose my
mother would like to have the constables and the illegitimates
introduced either into the drawing-room or the kitchen," (this was, as I
meant it to be, a poser; if Mr Hawthorne senior had a hobby, it was his
magisterial authority.) "The fact is, that at home, up-stairs or
down-stairs, I couldn't read. I should have not only my own idleness,
but the various idlenesses of the whole family combined, to fight
against. My sisters would be knocking at the door every half hour, if
only to ask how I was getting on: Bob would tease me to come out
skating, and Charles would start me perpetually after wild-ducks or
woodcocks. And you yourself, sir, if I am not much mistaken, would think
it odd if I didn't take a ride with you as usual after breakfast. Then
one can't be expected to crawl about one's books by candlelight on a
winter's morning; and after a six o'clock dinner who can read? After tea
you know, sir, my mother always likes a rubber when I'm at home; and if
you are going to have those girls, Jane and Sophy, down this
Christmas"----
"Ah! well--I see, Frank; I'm afraid it's a hopeless case. Perhaps you
had better stay up at Oxford after all; you won't have much to disturb
you there, I suppose. If you don't get moped to death, I certainly don't
see what's to hinder your reading. You don't feel inclined to try North
Wales in the winter, I suppose, eh?"
"No, sir," said I, swallowing a last glass of Madeira at a gulp, and
rising, to cut short a conversation which was beginning to take rather
an awkward turn--"No, sir, not exactly."
"Why, I don't know, Frank: why not? you'd find the climate cooler, you
know," persevered the governor, as he followed me into the drawing-room.
So in Oxford it was settled that I should stay; a tolerable character
for the last term or two, and the notorious fact that I was going up at
Easter, ostensibly for a class, obtained me the necessary permission:
strange that, in the University, one should require leave to read! My
friends, John Brown and Harry Chesterton, were to stay up too; and we
promised ourselves some hours of hard work, and many merry ones
together. The vice-principal and one of the juniors, the only fellows
that would be in residence, were both gentlemen, and always treated the
under-graduates as such; we should get rid of the eternal rounds of beef
and legs of mutton that figured at the commoners' table in hall; there
would be no morning chapel; and altogether, having had nearly enough of
the noisy gayety of a full term, we looked forward to the novelty of a
few quiet weeks in college with a degree of pleasure which surprised
even ourselves.
But alas! under-graduates are but mortals, and subject to somewhat more
than the ordinary uncertainties of mortal life. It wanted but a week to
the end of term; all our plans were settled. Brown was to migrate from
his own rooms in "Purgatory"--as we used to call the little dark back
quadrangle, where, from sheer laziness, which made him think moving a
bore, he had remained ever since his first location there as a freshman,
up three pair of stairs; so that, when his intimate friends wished to
ascertain if he was at home, we used to throw a stone through the
window--and was to take up his abode in "Elysium," where he would be
Chesterton's next-door neighbour, and in the same number as myself. We
were to have a quiet breakfast in each others' rooms in turn every
morning; no gross repast of beef-steaks and "spread-eagle" fowls, but a
slight relish of anchovy toast, potted shrimps, or something equally
ethereal; and the _chasse-café_ limited to one cigar and no bottled
porter. It was cruel to interfere with such unexceptionable
arrangements; but a college, though it have a head, has no heart worth
mentioning; and, in an evil hour, they rusticated John Brown. At least
they forbade his staying up the Christmas vacation; and, for the credit
of my friend's character, let me explain. Why John Brown should have
been a person particularly distasteful to the fellows of ---- College,
was a matter at first sight rather hard to understand. He was not what
is called a rowing man; was never found drunk in the quad, or asleep at
the hall lecture; never sported a pink, or drove a team; was not known
to have been concerned in any of the remarkable larks which occurred in
our times; was neither an agent in the Plague of Frogs, nor an actor in
the private theatricals; was not a member of the Agricultural Society,
which made the remarkable experiments with clover and ryegrass in the
college quadrangle; had no talent for midnight howling, sang very small
in a chorus, capped all the fellows diligently, and paid his battels to
the minute. He was known to have asked twice for the key of the library,
put down his name for the senior tutor's pet lecture in "Cornelius
Nepos," bought the principal's sermon on the "Via Media," and was
suspected of having tried to read it. He was not clever enough to sneer
at the tutors, or stupid enough to disgust them. He was too sleepy to
keep late hours, too fat to pull in the boat, too stingy to give
supper-parties. How on earth came the fellows not to like John Brown? "A
most respectable man," the principal always said he was. "Sir," said he
to his anxious father, when, at the end of his second term, he took the
opportunity of a professional visit to Oxford to call to know how the
hope of the Browns was progressing--"Sir, I consider your son a most
respectable person: I may say a most respectable person;" and as the
principal had taken wine with him once at dinner, and bowed to him at
collections, and read "Mr John Brown" twice upon a card at the end and
beginning of term, and thus had every opportunity of forming an opinion,
and expressed that opinion oracularly, in a Johnsonian fashion, Governor
Brown was satisfied. How did the fellows come not to like John
Brown?--pronounced "most respectable" by the principal--declared by his
scout to be "the quietest gentleman as he ever a knowed;" admitted by
the under-graduates to be "a monstrous good fellow, but rather slow;"
how came John Brown to fail in recommending himself to the favour of his
pastors and masters--the dean and tutors of ----? Why, in the first
place, John Brown, the elder, was a wine-merchant; a well-educated man,
a well-behaved man; but still a wine-merchant. Now the dean's father
was--I beg his pardon, had been--a linen-draper; neither well-educated
nor well behaved; in short, an unmitigated linen-draper. Consequently
the dean's adoration of the aristocracy was excessive. There are few
such thorough tuft-hunters as your genuine Oxford Don; the man who,
without family or station in society, often without any further general
education and knowledge of the world than is to be found at a country
grammar-school, is suddenly, upon the strength of some acquaintance with
Latin and Greek, or quite as often, from having first seen the light in
some fortunately endowed county, elevated to the dignity of a
fellowship, and permitted to take rank with gentlemen. The "high table"
in hall, the Turkey carpet and violet cushioned chair in the common
room, the obsequious attention of college servants, and the more
unwilling "capping" of the under-graduates, to such a man are real
luxuries, and the relish with which he enjoys them is deep and strong.
And if he have but the luck to immortalize himself by holding some
University office, to strut through his year of misrule as proctor, or
even as his humble "pro," then does he at once emerge from the obscurity
of the family annals a being of a higher sphere. And when there comes up
to commemoration a waddling old lady, and two thin sticks of virginity,
who horrify the college butler by calling the vice-principal "Dick," no
wonder that they return to the select society of their native town with
an impression, that though Oxford was a very fine place, and they had
real champagne, and wax candles, and every thing quite genteel, and dear
Richard was very kind, still they did think he was grown rather proud,
as he never once asked after his old acquaintances the Smiths, and
didn't like to be teased about his old flame Mary. No wonder that in the
visits, few and far between, which, during the long vacation, the
pompous B.D. pays to his humble relations in the country, (when he has
exhausted the invitations and the patience of his more aristocratic
friends,) they do not find a trace remaining of the vulgar boy, who,
some twelve years ago, quitted the seat of the provincial muses to push
his fortunes in the University of Oxford. In vain does his uncle give up
his after-dinner pipe, and in place of the accustomed Hollands and
water, astonish the dusty decanter with port of an unknown vintage in
honour of his illustrious nephew; in vain does the good old lady
afore-mentioned, the unworthy mother of so bright a son, quit the
instruction of pious Mr Jabez Jenkins, the "Independent" minister, and
turn orthodox and high-church for the nonce, when her dearly beloved
Richard "officiates" for the rev. the vicar; no ties of home or kindred,
no memories of boyhood, no glow of early recollections, touch the
case-hardened parasite of college growth; and when he has banished his
younger brother to Australia, under pretext of making his fortune,
married both his sisters, and erected a cheap monument to the
linen-draper's widow as the "relict of the late Thomas Thompson,
_Esquire_," he waits in peaceful expectation of a college living, with
the consciousness of having done his duty by his relations, and
delivered himself from a drag upon his new career. I do not mean to set
too high a value on gentle birth, or to limit nobility of character by
that of blood; I believe my tailor to be one of nature's gentlemen, (he
never duns,) and I know my next neighbour, Sir John, thirteenth baronet
as he is, to possess the soul of a huckster, because he sells his fruit
and game: still these are the exceptions, not the rule; and there are
few cases of men rising from low origin--rising, that is, from
circumstances, not from ability--not the architects, but the creations
of their own fortunes, (for that makes all the difference)--who do not
carry with them, through all the gradations of their advancement, the
plebeian instincts, while they forget, perhaps, the homely virtues of
the class from which they spring. There is a nobility of birth, seldom
to be counterfeited or mistaken, wholly irrespective of the rank and
wealth which are either its graceful accompaniments or its insufficient
substitutes; fostered and strengthened by early habits and education,
but none the less originally innate--as much an endowment from heaven as
beauty, strength, or talent, and more valuable than all. Many men have
the tact to adapt themselves to the station and the society to which
they have risen, however much above their own level; they acquire the
habits and the tastes, seldom the feelings, of a gentleman. They act the
character well; it is carefully studied, and on the whole well
sustained; it is a correct and painstaking performance, and the points
tell distinctly; but there is throughout that indirect appeal to the
audience which marks it to be only acting. They are more studiously
aristocratic than the aristocracy, and have a horror of vulgarity which
is in itself essentially vulgar.
And such a man was the dean of ----. On the philosophic principle of
hating all to whom we are under obligations, if there was any thing he
cordially detested, it was trade. His constant aim was to forget his
unfortunate origin himself, if possible to lead others who knew him to
forget it, and to keep strangers from knowing it at all. And as he
shrank from every shape and sound plebeian, so he industriously
cultivated every opening to "good society." There was not a member of
his own college, graduate or under-graduate, of any pretensions to
family, who could not speak from experience of the dean's capital
dinners, and his invariable urbanity. No young honourable, or tenth
cousin to an honourable, ever got into a row, that he had not cause to
bless the dean's good offices for getting him out. And if some of the
old stagers contented themselves with eating his dinners, and returning
them in the proportion of one to five, the unsophisticated gratitude of
youth, less cunning in the ways of the world, declared unhesitatingly,
in its own idiomatic language, "that old Hodgett was a regular brick,
and gave very beany feeds." And so his fame travelled far beyond his own
collegiate walls, and out-college honourables and gentlemen-commoners
were content to make the acquaintance, and eat the dinners that were so
freely offered. And as the dean had really some cleverness, and "a
well-assorted selection" of anecdotes and illustrations "from the best
markets," (as his worthy father would have advertised it,) and could
fill the chair at his own entertainments with ease if not with
gracefulness, and moreover was not close with his purse-strings, and
could always be reckoned safe for a L.20 note if a dun was troublesome,
(well knowing that even under-graduates make exceptions in favour of
debts of honour,) he became, among his younger friends especially, a
very popular man. And when those who had enjoyed his good fare, and
profited by his friendly offices with duns and proctors, found that,
after all, he was "nobody," all they said was, that it was a pity, and
that he was a monstrous good fellow none the less. And one invited him
to spend the Christmas with him down at the governor's in Kent, where
there was to be a regular houseful, and merry-making of all sorts, and
another would have him into Norfolk in September for the shooting--(the
dean never shot, but wisely said nothing about it until he got into
good quarters, when he left his younger friends to beat the stubbles,
while he walked or drove with Lady Mary and Lady Emily, and eat the
partridges;)--so that on the whole he felt himself rather an ill-used
individual if there was a week of the vacation for which he had not an
invite. If such a rare and undesirable exception did happen, seldom
indeed did he bestow himself, even for a day or two, upon his mother and
sisters at Nottingham; and never did he, by any oversight, permit a
letter to be addressed to him there; if it could not conveniently bear
the address of some of his titled entertainers, it was to meet him at
his college, to which he usually retired to await, with sufficient
discontent, an invitation, or the beginning of term; while he took pains
to have it understood, that his temporary seclusion was hardly spared
him from the hospitable importunities of those whom he delighted to call
"his many friends," in order to attend to important business.
Occasionally, indeed, it would happen that the natural sagacity of some
old English gentleman, or the keen eye of an experienced courtier, would
fathom at a glance the character of his son's invited guest, and treat
him with a distant politeness which he could neither mistake nor get
over; but, on the whole, his visits among his aristocratic entertainers
were agreeable enough, and he was not a man to stick at an occasional
trifle. His youthful _protégés_ were glad to be able to repay in the
country many kind offices at Oxford, and to become patronizers in their
turn; and the seniors redoubled, in the case of their son's friend, the
hospitality and courtesy they would have readily shown to a stranger,
and were not eager to scrutinize the motives which might have induced
him to be civil to the hopeful stripling, whom, in their partial view,
the whole university might well have delighted to honour.
In the eyes of such a man, John Brown was not likely, at first starting,
to find much favour. Had he been a rich man, and sported the velvet cap
and silk gown, the unhappy fact of his father's being in trade might
have been winked at. If not in the front rank of the dean's friends he
might have filled a vacant seat occasionally at his dinner-table, and
been honoured with a friendly recognition in the quadrangle. At it was,
he did not condescend to remember that such a man was on the college
books. Happy ignorance, if only it could have lasted. But one unlucky
morning a late supper party had decidedly thinned the attendance at the
hall lecture; and Mr Hodgett, having been disappointed of an invitation
to a very select dinner at the principal's, was in no very benignant
humour, and "hauled up" the defaulters. Among them was one of the dean's
pets--who, having done the same thing a dozen times before, was rather
astonished at the summons--and the usually regular John Brown. What
excuses the rest of the party made is immaterial. John, I believe, said
nothing, beyond a remark as to his having been rarely absent. The
result, however, was, that he and the rest got an imposition, which cost
them half-a-guinea each to get done by the under-cook, (it was Greek
_with_ the accents, which comes expensive,) while the Honourable Lumley
Skeffington was dismissed with a jocular reproof, and an invitation to
breakfast. Now, if Mr Skeffington had had the sense to have kept his own
and his friend's counsel, this might have been all very well. But being
a somewhat shallow-pated youth, and a freshman to boot, he thought it a
very fine thing to talk about at his next wine-party, and boast that he
could cut lecture and chapel when he pleased--the dean and he understood
each other. Brown happened to be present; (for though not good company
enough for the dean, he was for his betters; your _parvenu_ is far more
exclusive in his society than your born gentleman;) he quietly enquired
into the facts; and finding that what he had before been inclined to
consider as undue severity in his own case, was positively an injustice
compared with that of another, appreciating thoroughly the character of
the party he had to deal with, and coupling the present with certain
previous minor snubbings from the same quarter, he from that moment
declared war.
Now, the Rev. Mr Hodgett, sedate and dignified as he was, had better
have danced a hornpipe in his thinnest silks amongst a bed of stinging
nettles, or have poked sticks into a wasp's nest, or amused himself with
any other innocent recreation, than have made an enemy of John Brown. It
was what he himself would have called a wrong move, and it played the
deuce with his game. John was the very man who could annoy him, and he
did. None of us knew he had so much ingenuity, or so much malice in his
composition, until he commenced his hostilities against the dean. The
fact was, he was more piqued, perhaps, than any other man in college
would have been by so small a matter. Too sensible to be really ashamed
of being the son of a man in trade, he was conscious, nevertheless, that
it was in some sort a disadvantage to him, and that, descended as he was
from an old and once knightly line, (his father had been an ill-used
younger son,) he did not quite occupy his proper position in the world.
His feeling of this made him sensitive to a fault; it led him rather to
shun than to seek the society of his contemporaries; and much as he was
esteemed by myself and others who knew him well, I will not say that he
was a universal favourite. Men did not understand him: at that time of
life (alas, why not always?) most of us are open and free-hearted; they
did not relish his shy and reserved manner, his unwillingness to take
the initiative in any social intercourse, his _exigéance_ to a certain
extent of those forms which the freedom of college friendship is apt to
neglect. "Why didn't you turn into my rooms the other night, when you
came in from Oriel?" said I to him early in our acquaintance. "Hobbs
says he told you I had some men to supper."--"You didn't ask me," was
the quiet reply.--"I couldn't see you, or else I should; but you might
have known I wanted you; don't serve me such a trick as that again, old
fellow." But it let me into a secret of his character, and ever after
that, I was as particular in my invitations as possible. Men thought him
proud, and cold, and touchy, which he was not; and stingy, which he
scorned to be, from his contempt for ostentation in any shape. The
rarity of his wine-parties, and his never having other wines produced
than port or sherry, he himself explained to me--"Men would say, it was
easy for me to sport claret and champagne, when I could get them for
nothing." But if an unthinking freshman broke out in praise of the said
excellent port or sherry, (as indeed they might well be pardoned for
doing, considering the quality of what they commonly imbibed,) he would
say at once--"Yes, I believe it is good; I know my father considers it
so, and it has been in bottle above twelve years." There was no shirking
the question for a moment. And excellent wine he got for me from his
father, at a moderate price, at his own offer. Hating then, as he did
undisguisedly, the tuft-hunting and affectation of _haut-ton_, which was
so foreign to his own nature, he felt, perhaps excusably, annoyed at
their palpable existence and apparent success, in a man, whose station,
as he said, ought to have kept him from meanness, if it could not give
him dignity.
At all events, his method of retaliation--"taking down the dean"--as he
called it was most systematic and persevering. He let the matter of the
imposition pass over quietly; was for some months doubly attentive to
all his college duties; carefully avoided all collision with his
adversary; kept out of his way as much as he could; and whenever brought
into contact with him, was as respectful as if he had been the
Vice-chancellor. This had its effect: John began to rise in the dean's
good graces; and when he called upon him in the usual course of
etiquette, to mention that he should be absent the vacation of three
days which intervenes between the two short terms, the meeting, on one
side at least, was almost cordial. A day or two after his return, (he
had been to visit a friend, he said,) we were in his rooms at breakfast
together, when the dean's scout entered with his master's compliments to
request Mr Brown's company to breakfast. Then it was that John's eyes
dilated, and he rubbed his hands, as soon as the door was shut, with an
excitement rather unusual.
"Do you know who breakfasts with the man to-morrow? Do you, Hawthorne?"
"Why, I had a message this morning," said I, "but I don't mean to go. I
shall have a headach or something to-morrow. I have no notion of going
there to eat my own bread and butter, and drink his very bad tea, and
see a freshman swallow greasy ham and eggs, enough to turn the stomach
of any one else; and then those Dons always make a point of asking me to
meet a set of regular muffs that I don't know. The last time I went,
there were only two reading-men in spectacles, perfect dummies, and that
ass, young Medlicott, who talks about hunting, and I believe never
crossed the back of anything higher than a donkey."
"You had better come to-morrow; perhaps you will have some fun."
"Why, who is going there, do you know?"
"I haven't a notion; but do come. I must go, and we will sit together,
and I'll get the cook to send up a dish of deviled kidneys for you."
There was something in his eye as he said this which I could not make
out, and it rather puzzled me to find him so willing to be of the party
himself. However, he was an odd fellow, so I promised to go, and we
parted; certainly with little anticipation on my part of what the "fun"
was to be.
Nine o'clock the next day arrived, and punctual to the minute might be
seen two freshmen, from opposite corners of the quadrangle, steering for
the dean's rooms. Ten minutes afterwards, an interesting procession of
coffee-pots and tin-covers warned me to finish my toilet; and following
them up the staircase, I found a tolerably large party assembled.
"Just in time--just in time, Mr Hawthorne," said the dean, who appeared
to be in high good-humour, "as my old pupil, Sir Charles Galston, used
to say, (you don't know him, do you? he's your county man, too, I
believe,)--as he always used to say, 'Gad, Hodgett, just in time to see
the muffins break cover!' ha, ha! Take those tins off, Robert."
We sat down, and for some time every thing went on as slow as it usually
does at breakfast parties. At length, taking advantage of a pause, after
laughing his loudest at one of our host's stories, John Brown broke out
with "How is Mrs Hodgett, sir?"
If Mrs Hodgett, instead of the dean's most respectable mother, had been
his lawful wife, hitherto unacknowledged through fear of losing his
fellowship, he could not have looked more thoroughly horrified. I myself
was considerably taken aback; some of the other men, who knew the
reverend gentleman's tenderness on the subject of his family connexions,
picked their chicken-bones, and stirred their coffee with redoubled
attention. John Brown and the two freshmen alone looked as cool as
cucumbers.
"Eh? oh--h," stammered the party addressed, "quite well, thank
you--quite well. Let me give you some of this--oh, it's all gone! We'll
have some more; will one of you be kind enough to ring? My friend,
Lord"----
"No more for me, thank you, sir, I beg," said John. "Have you heard from
Mrs Hodgett since the vacation?"
"No--yes; oh dear, yes, several times!" (It was about five days back.)
"She was quite well, thank you. In town at present, I believe. You were
in town during the vacation, I think, Mr Wartnaby? Did you meet your
uncle Sir Thomas there, or any of the family?"
"Sir T-T-Thom...." began young Wartnaby, who stammered terribly.
"I beg your pardon, sir," struck in John Brown, "are you sure Mrs
Hodgett is in town? I saw her in Nottingham myself on Friday; I made my
first acquaintance with her there, and a very charming old lady she is."
Mr Hodgett's confusion could only be rivaled by Mr Brown's perfect
self-possession. I began to see the object of his kind enquiries; so,
probably, did the victim himself. The other men who were present
thought, I suppose, that it was only an unfortunate attempt of John's to
make himself agreeable; and while some were amused by it, a more
considerate friend kicked my shins in mistake for his, under the table.
"She certainly told me, sir, she should be going up to London in a few
weeks, to purchase her winter stock, I think she said; but I did not
understand that she was to be there now."
John had got on thus far before his enemy could rally at all; but the
dean grew desperate, and resolved to make a diversion at all hazards;
and as he reached his hand out, apparently in quest of a slice of toast,
cup, saucer, and a pile of empty plates, went crashing on the floor.
"Bless me, how very awkward!" said he, with a face as red as fire.
"Never mind, sir," said a freshman from Shrewsbury, just entered who had
not opened his lips before, and thought it a good opportunity; "it's all
for the good of trade."
Never was a stale jest so unconsciously pointed in its application.
Brown laughed of course, and so did we all; while the dean tried to
cover his confusion by wiping his clothes--the cup having been an empty
one. The freshman, seeing our amusement, thought he had said a very good
thing, and began to talk very fast; but nobody listened to him.
"Talking of trade," mercilessly continued the tormentor, "I was
uncommonly pleased with Nottingham the other day. Your brother-in-law,
Mr Mogg, was exceedingly civil to me, (I took the liberty of mentioning
your name, sir;) he showed me the whole process of stocking-making; very
interesting indeed it is--but of course you have seen it often; and I
really think, for a small establishment, Mr Mogg's is one of the best
conducted I ever saw. You don't know Mr Mogg, Hawthorne, do you? Get the
dean to give you a letter to him, if you ever go to Nottingham; a very
good sort of man he is, and has his whole heart in his business. 'Some
men are ashamed of their trade, sir' said he; 'I a'n't. What should I
do, I should like to know, if trade was ashamed of me?' And really Mrs
Mogg"----
"Ah yes!" said Mr Hodgett, hitherto overwhelmed by John's eloquence, (he
never talked so fast,) and utterly at a loss how to meet it, "Mogg is a
great man in his line at Nottingham. I shouldn't wonder if he was member
some day; he has a large wholesale connexion."
"And retail, too, sir," chimed in John. "I bought six pair of the nicest
sort of stockings there I have seen for a long time: did I show them to
you, Hawthorne? 'These,' said Mr Mogg, 'I can recommend; I always'"----
"If you won't take any more coffee, gentlemen," said the dean, jumping
up and looking at his watch, "I am afraid, as I have an appointment at
ten"----
"I declare, so have I," said Brown; "but I had quite forgotten it, our
conversation has been so very agreeable. Good-morning, sir; and if you
are writing to Mrs Hodgett, pray make my compliments." And with this
Parthian shaft he quitted the field.
Having adjusted the difficult questions which are apt to arise as to the
ownership of caps and gowns, the rest of the party took leave. The
facetious freshman, after putting in an ineffectual claim upon one or
two of the most respectable of the caps, at last marched off with the
dean's, as being certainly more like the new one he had bought the day
before, than the dilapidated article with a broken board and half a
tassel, which was the tempting alternative, and possessing also the
common property of having a red seal in it. He was not allowed, however,
to remain long in peaceful possession of his prize. Scarcely had he
reached his rooms, when Robert, the dean's scout, came to inform him
that he had left his own cap (which Robert presented to him with a grin)
behind him, and taken away Mr Hodgett's in mistake; enlightening him, at
the same time, as to the fact, that fellows' caps, by special exemption,
were "not transferable." And when he ventured to send back by Robert an
apology, to the effect that the very ancient specimen could not at all
events be his, and a humble request that the dean would endeavour to
ascertain which of his friends whom he had met at breakfast had also
"made a mistake," that official, remembering his happy _debût_ as a
conversationalist, instantly sent for him, and read him a severe lecture
upon impertinence.
Of course we were no sooner fairly landed in the quadrangle, than all
who had any acquaintance with Brown surrounded him with entreaties for
an explanation. What possessed him to make such a dead set at the dean?
How came he to be so well up in the family history? How long had he had
the pleasure of an acquaintance with dear old Mrs Hodgett? And who
introduced him to Mr Mogg?
It turned out that John had made an expedition to Nottingham during the
vacation on purpose; he had called on the old lady, whose address he had
with some difficulty obtained; presented his card, "Mr John Brown, ----
Coll.;" stated that he was a stranger, very desirous to see the lions of
Nottingham, of which he had heard so much; and having the honour of
knowing her son, and the advantage of being at the same college with
him, and having so often heard her name mentioned in their many
conversations, that he almost felt as if she was his intimate
acquaintance, had ventured to intrude upon her with a request that she
would put him in the way of seeing the town and its manufactures to the
best advantage. Much taken, no doubt, by John's polite address, which by
his own recapitulation of it must have been highly insinuating, and
delighted to see any one who could talk to her about her son, and to
learn that she herself was talked about among his grand friends in
Oxford, the worthy Mrs Hodgett begged John Brown to walk in; and finding
that there was nothing high about him, and that he listened with the
greatest interest to all her family details and reminiscences, she took
courage to ask him to eat a bit of dinner with her and her daughter at
two o'clock, after which she promised him the escort of her son-in-law,
Mr Mogg, the principal (that was what they called them up at Nottingham,
just as they did in Oxford, she observed) of the great stocking-house
over the way. Such a man he was! she said; every bit as good as a book
to a stranger; "he knowed every think and every body." John assured her
such universal knowledge was not common among principals of houses in
Oxford; and declared that he should appreciate the services of such a
guide proportionately. And as an introduction to the whole family was
just the thing he wanted, he at once accepted the invitation with many
thanks. In short, an arrangement was made which pleased all parties;
all, that is, with the exception of Mr Spriggins, the head shopman, who
usually took his meals with the family, but on that day, to his great
disgust, not being considered of quality to meet their unexpected guest,
(not being a principal,) received intimation that his dinner would be
served in the counting-house. The dinner passed off, no doubt, much more
satisfactorily than more formal affairs of the kind. John had a good
appetite and good-humour, and so had the old lady; and no doubt, even in
Miss Hodgett's eyes, the young Oxonian was no bad substitute for Mr
Spriggins. Even that gentleman, could he have foreseen all that was to
follow from this visit, would have exchanged for his blandest smile the
stern glance with which he regarded, from the little back window of the
counting-house, the procession of John, with Miss Hodgett under his arm,
from the drawing-room, to take the seat which should have been his;
would have made him his most obsequious bow, and regarded him as the
best customer that had ever come inside their doors.
But perhaps I am wronging Mr Spriggins in assuming that he thought the
usurper of his rights worthy of a glance at all: and certainly I am
anticipating my story. John dined with the old lady; drank her currant
wine in preference to her port, ate her seed biscuits, and when Mr Mogg,
in pursuance of a message from his mother-in-law, called to renew in his
own person the offer to show his relation's distinguished friend, (Mrs
Hodgett had hinted her suspicions that John Brown was a nobleman,) he
was ready, though rather sleepy, to commence his lionizing. Mr Mogg was
exceedingly civil, showed him every thing worth seeing, from the castle
to the stocking-frames; and by the time they returned together to supper
at the old lady's, they had become very thick indeed. John called the
next day and took his leave of both parties, with a promise not to pass
through Nottingham without renewing his acquaintance, and that he would
not fail to mention to his friend the dean how much he had been
gratified by his reception; both which pledges he scrupulously redeemed.
Mr Hodgett's indignation was unbounded; if the united powers of
vice-chancellor, doctors, proctors, and convocation, could, by rummaging
up some old statute, have expelled John Brown for paying a visit to
Nottingham, he would have moved the university to strive to effect it.
Happily these powers never are united, or there is no saying what they
might not do. So John remained a member of the college still. The dean
seldom looked at him if he could help it; he tried once the soothing
system by praising him at collections, but it only elicited from John a
polite enquiry after Mr and Mrs Mogg.
What man could do to extricate himself from his unfortunate position,
the dean did. He wrote off immediately to his mother, entreating her, by
her hopes of his advancement in life, not to allow the name of Hodgett
to be any longer contaminated by any touch of linen-drapery. He
suggested that she should at once make over the business to her foreman,
Spriggins, reserving to herself an interest in the profits, and retire
to a small and genteel cottage in the suburbs, where no impertinent
intruder could detect the linen-draper's widow. She, worthy old soul,
though it did grieve her, no doubt, to part with her shop, in which were
centred the interests and associations of so many years, yet would have
set fire to it with her own hands, and emigrated to America--though she
knew it only as a place where banks always broke, and people never paid
their debts--if it could in anyway have furthered his interests whom she
loved better than he deserved. She always looked upon him as a
gentleman, and did not wonder he wished to be one, though she herself
had no manner of taste for becoming a lady.
But in the simplicity of her heart, she planned that even this sacrifice
to her motherly affection might be turned to some account in the way of
trade. Accordingly, there appeared in the _Nottingham Herald_ an
advertisement, extending across two columns, headed with imposing
capitals, by which the public were informed that Mrs Hodgett being about
to decline her long-established linen-drapery business in favour of Mr
Spriggins, the whole stock was to be turned into ready money
immediately, "considerably below prime cost;" by which means the public
had no doubt an opportunity of giving full value to Mrs H. for sundry
old-fashioned patterns and faded remnants, which the incoming Spriggins
would otherwise have "taken to" for a mere song.
Now, since the time that John Brown began first to take so deep an
interest in the Hodgett family, he had regularly invested fourpence
weekly in a copy of the _Nottingham Herald_. By this means he had the
satisfaction of congratulating the dean upon the birth of a nephew, in
the person of a son and heir of the Moggs: and though so carefully did
that gentleman avoid all communication with his tormentor, that he was
obliged for two whole days to watch an opportunity to convey the
intelligence; yet, as he finally succeeded in announcing it in the
presence of the tutor of a neighbouring college, who was a profound
genealogist and a great gossip, his pains, he declared, were
sufficiently repaid. The eagerness with which he pounced upon the
advertisement may be imagined; and finding, from a little _N. B._ at the
bottom, that handbills with further particulars were to be had at the
office, he lost no time in procuring half a dozen by post; and one
morning the usual receptacles for university notices, the hall-door and
the board by the buttery, were placarded with staring announcements, in
red and black letters, six inches long, of Mrs HODGETT'S speculation.
One was pushed under the dean's door; one stuck under the knocker at the
principal's; one put into the college letterbox for "the senior
common-room;" in short, had good Mrs Hodgett herself wished to have the
college for her customers, she could hardly have distributed them more
judiciously.
In short, no pains were spared by John Brown to tease and worry the dean
with all the particulars of his family history, which he would most have
wished to bury in oblivion. And to do him justice, he in his turn spared
no pains to get rid of John Brown. He would have allowed him to cut
lectures and chapels _ad libitum_, if he thus could have spared all
personal intercourse, and escaped his detested civilities. Finding that
would not do, he tried the opposite course, and endeavoured either to
get him rusticated at once, or to disgust him with the college, and thus
induce him to take his name off. John was cautious--very cautious; but a
war against the powers that be, is always pretty much of an uphill game;
and so at last it proved in his case.
John had another enemy in the college, of his own making too; this was
Mr Silver, the junior tutor. He was a man of some scholarship and much
conceit; took a first class when very young, having entered college a
mere schoolboy, and read hard; got his appointment as tutor soon after,
and sneered at older men on the strength of it. He pretended to be
exceedingly jocular and familiar with his pupils, but was really always
on the alarm for his dignity. His great delight was to impress the
freshmen with an idea of his abilities and his condescension. "Always
come to me, Mr ----, if you find any difficulties in your reading--I
shall be most happy to assist you." This language, repeated to all in
turn, was, not unnaturally, literally understood by the matter-of-fact
John Brown; who, perhaps, could see no good reason why a college tutor
should _not_ be ready to aid, as far as he could, the private studies of
those who are so often in want of sensible advice and encouragement.
However, it did not occur to him, when he took up to Mr Silver's rooms
one morning after lecture, a passage that had puzzled him, that he was
doing a very odd thing, and that the tutor thought so. As these
consultations became more frequent, however, he began to perceive, what
other men were not slow to tell him, that Mr Silver thought him a bore.
And the moment this flashed upon him, with his unfortunate antipathy to
any thing like humbug, he began another war of independence. He selected
crabbed passages; got them up carefully by the help of translations,
scholiasts, and clever friends; and then took them up hot to Mr Silver.
And when he detected him slurring a difficulty instead of explaining it,
or saying there was no difficulty at all, John would bring up against
him his array of objections to this or that rendering, and arguments for
and against various readings, &c., till Mr Silver found himself fairly
out of his depth. At first this puzzled him, and he very nearly
committed the mistake of pronouncing John Brown a first-rate scholar in
the common-room; but when he found his performance at lecture did not by
any means keep pace with the remarkable erudition sometimes displayed by
him in private, he began in his turn to suspect the trick. He dared not
refuse to play his part, when called upon, in these learned discussions,
though he dreaded them more and more; for his college reputation was at
stake, and there were some among the older fellows who looked upon him
as rather an assuming young man for understanding what they did not
pretend to, and would have been glad to have had a joke against him; but
he began cordially to hate John Brown; he gave him all the difficult
bits he could at lecture; sneered at him when he dared; and practised
all those amiable embellishments which make schoolmasters and tutors
usually so beloved, and learning in all its branches so delightful.
It is not to be wondered at, then, if John's kind friends somewhat
damaged his reputation among the Dons, and watched their opportunity to
annihilate him. It came, and they were down upon him at once. Some
half-dozen noisy men, the survivors of a supper-party, had turned into
Brown's rooms (he seldom sat up so late) for a parting cigar. Having
accomplished this, they took it into their heads to dance a quadrille in
the middle of the covered thoroughfare, for the benefit of the echo, to
the music of six individual tunes sung in chorus. So strange a
performance brought down some of the fellows; the men were not
recognised, but traced to Brown's rooms. He refused to give up their
names--was declared contumacious; and, in spite of the good-natured
remonstrances of the principal and one or two of the others, his enemies
obtained a majority in the common-room; and it was decided that John
Brown was too dangerous a character to be allowed to remain in college
during vacation. But they had not got rid of him yet.
About two miles out of Oxford, on the C---- road, if any one takes the
trouble to turn up a narrow lane, and then follow a footpath by the side
of the canal, he will come to one of the most curious-looking farmhouses
that he (or at least I) ever met with. It is a large rambling
uninhabited-looking place; the house, as is not unusual, forming one
side of a square enclosure, of which the barns and outhouses make up the
rest. The high blank walls of these latter, pierced only here and there
by two or three of the narrowest possible lancet-holes, give it
something the air of a fortification. Indeed, if well garrisoned, it
would be almost as strong a post as the Chateau of Hougoumont; with this
additional advantage, that it has a moat on two sides of it, and a
canal, only divided from it by a narrow towing-path, on a third. The
front (for it has a front, though, upon my first visit, it took me some
time to find it, it being exactly on the opposite side to the approach
at present in use, and requiring two pretty deep ditches to be crossed,
in order to get at it from the direction)--the front only has any
regular windows; and of these, most of the largest are boarded up,
(some, indeed, more substantially closed with brick and mortar) in order
to render it as independent as possible of the glazier and the assessor
of taxes. There is a little bridge, very much decayed, thrown across the
narrow moat to what was, in former days, the main entrance; but now the
door was nailed up, the bridge ruinous, and the path leading to it no
longer distinguishable in the long rank grass that covered the wet
meadows upon which the house looked out. It was a place that filled you
involuntarily with melancholy feelings; it breathed of loneliness and
desolation, changed times and fallen fortunes. I never beheld it but I
thought of Tennyson's "Mariana in the moated Grange"--
"Unlifted was the clicking latch,
Weeded and worn the ancient thatch
Upon the lonely moated Grange."
Brown and I, in some of our peregrinations, had stumbled upon this old
house; and after having walked round it, and speculated upon its
history, made our way through an open door into the spacious court-yard.
If the outside looked desolate, however, the interior was lively enough:
cattle, pigs, geese, ducks, and all the ordinary appurtenances of a
well-stocked farm, gave token that the old place was still tenanted; and
a large mastiff, who stalked towards us with a series of enquiring
growls, evidently demanding our business, and suspicious of our good
intentions, made us not at all sorry to see a stout good-natured-looking
dame, a perfect contradiction to the poet's woe-worn "Mariana," who,
after bidding Boxer hold his noise, volunteered a compendious history of
herself and husband in answer to our simple question as to the name of
the place. How good Farmer Nutt and herself had lived there for the last
seventeen years; how the old place belonged to Squire somebody, and
folks said that some gentry used to live in it in times past; what a
lonesome-like life they thought it when they first came, after living in
the gay town of Abingdon; how, by degrees, they got to think it pretty
comfortable, and found the plashy meadows good pasturage, and the house
"famous and roomy-like;" this, and much besides, did we listen to
patiently, the more so because an attempt or two at interruption only
served to widen the field of her discourse. The wind-up of it all,
however, was, that we were asked to walk in and sit down, and so we did.
A civil farmer's wife, a very common character in most parts of England,
is, I am sorry to say, somewhat too much of a rarity about Oxford;
whether their tempers are too severely tried by the "fast men," who hunt
drags and ride steeple-chases to the detriment of young wheat and
new-made fences; or by the reading-men, who, in their innocence, make
pertinacious visits in search of strawberries and cream in the month of
March, or call for the twentieth time to enquire the nearest way to
Oxford, (being ignorant of all topography but that of ancient Rome and
Athens;) or whether they regard all gownsmen as embryo parsons and
tithe-owners, and therefore hereditary enemies; whatever be the reason,
it generally requires some tact to establish any thing like a friendly
relation with a farmer or his wife in the neighbourhood of the
university. However, Mrs Nutt was an exception; and nothing could exceed
the heartiness with which she set out her best wheaten bread and rich
Gloucester cheese, and particular ale--an advance towards further
acquaintance which we met with due readiness. In short, so well were we
pleased with the good dame's hospitable ways, and her old-fashioned
house, and even with her good-humoured loquacity, that our first visit
was not our last. The farmer himself, a quiet, good-natured, honest
yeoman of about sixty, who said very little indeed when his wife was
present, (he had not much chance,) but could, when disposed, let out
many a droll story of "College Gents" in bygone days, when he was a
brewer's apprentice at Abingdon, came, by invitation, to taste the
college tap, and carried home in each pocket a bottle of wine for "the
missus."
When John Brown, Esquire, found his intentions of wintering within the
walls of ---- so unexpectedly defeated, he cast about diligently in his
own mind for a resting-place for himself, his books, and a nondescript
animal which he called a Russian terrier. Home he was determined not to
go--any where within the boundaries of the University, the College were
equally determined he should not stay; and we all settled that he would
fix himself for the vacation either at Woodstock, or Ensham, or
Abingdon; the odds were in favour of the latter place, for John was a
good judge of ale. It was not, therefore, without considerable
astonishment that one morning, at breakfast in my room, after devouring
in rigid silence a commons of broiled ham for two, and the last number
of _Pickwick_, (John seldom laughed, but read "Boz" as gravely as he
would Aristotle,) we heard him open his heart as follows:--
"I say, old fellow, where do you think I am going to put up this
vacation?"
"Really, John, you're such an odd fellow it's impossible to guess; if it
had been summer, I shouldn't have been at all surprised to hear of your
having pitched a tent at Bullingdon, or hired a house-boat, and lived
Chinese fashion on the river; but I suppose you would hardly think of
that plan at this time of the year."
"Nonsense, man; you know the Moated Grange, as you call it--old
Nutt's!--I've taken lodging there."
"The Grange! Well, there's no accounting for tastes; but if there were
any empty rooms in the county jail, I almost think I should prefer them,
especially when one might possibly get board and lodging there gratis."
"Don't be absurd; I shall be very comfortable there. I'm to have two
rooms up-stairs, that will look very habitable when they've cleaned down
the cobwebs, and got rid of the bats; Farmer Nutt is going to lay poison
for the rats to-night, and I can go in, if I like, on Monday."
"Upon my honour, John, Chesterton and I can never come and see you in
that miserable hole."
"Don't, then; I'm going there to read: I sha'n't want company."
It turned out that he was really in earnest; and the day after the
University term was ended, the Grange received its new tenant. We went
down there to instal him; it was the first time Chesterton had seen the
place, and he was rather envious of our friend's selection, as he
followed him up-stairs into the quaint old chambers, to which two
blazing log-fires, and Mrs Nutt's unimpeachable cleanliness, had
imparted an air of no little comfort. The old oaken floor of the
sitting-room had been polished to something like its original richness
and brilliancy of hue, and reflected the firelight in a way that warmed
you to look at it. There was not a cobweb to be seen; and though old
Bruin snuffed round the room suspiciously, Farmer Nutt gave it as his
conscientious opinion that every rat had had a taste of the "pyson."
There was no question but that if one could get over the dulness of the
place, as far as accommodation went there need be little cause to
complain.
"I shall get an 18-gallon of Hall and Tawney, and hire an easy-chair,"
said John, "and then _won't_ I read?"
Full of these virtuous resolutions we left him; and how he got on there
my readers shall hear another day.
H.
THE TOMBLESS MAN. A DREAM.
BY DELTA.
I.
I woke from sleep at midnight, all was dark,
Solemn, and silent, an unbroken calm;
It was a fearful vision, and had made
A mystical impression on my mind;
For clouds lay o'er the ocean of my thoughts
In vague and broken masses, strangely wild;
And grim imagination wander'd on
'Mid gloomy yew-trees in a churchyard old,
And mouldering shielings of the eyeless hills,
And snow-clad pathless moors on moonless nights,
And icebergs drifting from the sunless Pole,
And prostrate Indian villages, when spent
The rage of the hurricane has pass'd away,
Leaving a landscape desolate with death;
And as I turn'd me to my vanish'd dream,
Clothed in its drapery of gloom, it rose
Upon my spirit, dreary as before.
II.
Alone--alone--a desolate dreary wild,
Herbless and verdureless; low swampy moss,
Where tadpoles grew to frogs, for leagues begirt
My solitary path. Nor sight nor sound
Of moving life, except a grey curlew--
As shrieking tumbled on the timid bird,
Aye glancing backward with its coal-black eye,
Even as by imp invisible pursued--
Was seen or heard; the last low level rays
Of sunset, gilded with a blood-red glow
That melancholy moor, with its grey stones
And stagnant water-pools. Aye floundering on,
And on, I stray'd, finding no pathway, save
The runlet of a wintry stream, begirt
With shelvy barren rocks; around, o'erhead,
Yea every where, in shapes grotesque and grim,
Towering they rose, encompassing my path,
As 'twere in savage mockery. Lo, a chasm
Yawning, and bottomless, and black! Beneath
I heard the waters in their sheer descent
Descending down, and down; and further down
Descending still, and dashing: Now a rush,
And now a roar, and now a fainter fall,
And still remoter, and yet finding still,
For the white anguish of their boiling whirl,
No resting-place. Over my head appear'd,
Between the jagged black rifts bluely seen,
Sole harbinger of hope, a patch of sky,
Of deep, clear, solemn sky, shrining a star
Magnificent; that, with a holy light,
Glowing and glittering, shone into the heart
As 'twere an angel's eye. Entranced I stood,
Drinking the beauty of that gem serene,
How long I wist not; but, when back to earth
Sank my prone eyes--I knew not where I was--
Again the scene had shifted, and the time,
From midnight to the hour when earliest dawn
Gleams in the orient, and with inky lines
The trees seem painted on the girding sky.
III.
A solemn hour!--so silent, that the sound
Even of a falling leaflet had been heard,
Was that, wherein, with meditative step,
With uncompanion'd step, measured and slow,
And wistful gaze, that to the left, the right,
Was often turn'd, as if in secret dread
Of something horrible that must be met--
Of unseen evil not to be eschew'd--
Up a long vista'd avenue I wound,
Untrodden long, and overgrown with moss.
It seem'd an entrance to the hall of gloom;
Grey twilight, in the melancholy shade
Of the hoar branches, show'd the tufted grass
With globules spangled of the fine night-dew--
So fine--that even a midge's tiny tread
Had caused them trickle down. Funereal yews
Notch'd with the growth of centuries, stretching round
Dismal in aspect, and grotesque in shape,
Pair after pair, were ranged: where ended these,
Girdling an open semicircle, tower'd
A row of rifted plane-trees, inky-leaved
With cinnamon-colour'd barks; and, in the midst,
Hidden almost by their entwining boughs,
An unshut gateway, musty and forlorn;
Its old supporting pillars roughly rich
With sculpturings quaint of intermingled flowers.
IV.
Each pillar held upon its top an urn,
Serpent-begirt; each urn upon its front
A face--and such a face! I turn'd away--
Then gazed again--'twas not to be forgot:--
There was a fascination in the eyes--
Even in their stony stare; like the ribb'd sand
Of ocean was the eager brow; the mouth
Had a hyena grin; the nose, compress'd
With curling sneer, of wolfish cunning spake;
O'er the lank temples, long entwisted curls
Adown the scraggy neck in masses fell;
And fancy, aided by the time and place,
Read in the whole the effigies of a fiend--
Who, and what art thou? ask'd my beating heart--
And but the silence to my heart replied!
That entrance pass'd, I found a grass-grown court,
Vast, void, and desolate--and there a house,
Baronial, grim, and grey, with Flemish roof
High-pointed, and with aspect all forlorn:--
Four-sided rose the towers at either end
Of the long front, each coped with mouldering flags:
Up from the silent chimneys went no smoke;
And vacantly the deep-brow'd windows stared,
Like eyeballs dead to daylight. O'er the gate
Of entrance, to whose folding-doors a flight
Of steps converging led, startled I saw,
Oh, horrible! the same reflected face
As that on either urn--but gloomier still
In shadow of the mouldering architrave.
V.
I would have turn'd me back--I would have fled
From that malignant, yet half-syren smile;
But magic held me rooted to the spot,
And some inquisitive horror led me on.--
Entering I stood beneath the spacious dome
Of a round hall, vacant, save here and there,
Where from the panelings, in mouldy shreds,
Hung what was arras loom-work; weather-stains
In mould appear'd on the mosaic floors,
Of marble black and white--or what was white,
For time had yellow'd all; and opposite,
High on the wall, within a crumbling frame
Of tarnish'd gold, scowl'd down a pictured form
In the habiliments of bygone days--
With ruff, and doublet slash'd, and studded belt--
'Twas the same face--the Gorgon curls the same,
The same lynx eye, the same peak-bearded chin,
And the same nose, with sneering upward curl.
VI.
Again I would have turned to flee--again
Tried to elude the snares around my feet;
But struggling could not--though I knew not why,
Self-will and self-possession vaguely lost.--
Horror thrill'd through me--to recede was vain;
Fear lurk'd behind in that sepulchral court,
In its mute avenue and grave-like grass;
And to proceed--where led my onward way?
Ranges of doorways branch'd on either side,
Each like the other:--one I oped, and lo!
A dim deserted room, its furniture
Withdrawn; gray, stirless cobwebs from the roof
Hanging; and its deep windows letting in
The pale, sad dawn--than darkness drearier far.
How desolate! Around its cornices
Of florid stucco shone the mimic flowers
Of art's device, carved to delight the eyes
Of those long since but dust within their graves!
The hollow hearth-place, with its fluted jambs
Of clammy Ethiop marble, whence, of yore,
Had risen the Yule-log's animating blaze
On festal faces, tomb-like, coldly yawn'd;
While o'er its centre, lined in hues of night,
Grinn'd the same features with the aspick eyes,
And fox-like watchful, though averted gaze,
The haunting demon of that voiceless home!
VII.
How silent! to the beating of my heart
I listen'd, and nought else around me heard.
How stirless! even a waving gossamer--
The mazy motes that rise and fall in air--
Had been as signs of life; when, suddenly,
As bursts the thunder-peal upon the calm,
Whence I had come the clank of feet was heard--
A noise remote, which near'd and near'd, and near'd--
Even to the threshold of that room it came,
Where, with raised hands, spell-bound, I listening stood;
And the door opening stealthily, I beheld
The embodied figure of the phantom head,
Garb'd in the quaint robes of the portraiture--
A veritable fiend, a life in death!
VIII.
My heart stood still, though quickly came my breath;
Headlong I rush'd away, I knew not where;
In frenzied hast rushing I ran; my feet
With terror wing'd, a hell-hound at my heels,
Yea! scarce three strides between us. Through a door
Right opposite I flew, slamming its weight,
To shut me from the spectre who pursued:
And lo! another room, the counterpart
Of that just left, but gloomier. On I rush'd,
Beholding o'er its hearth the grinning face,
Another and the same; the haunting face
Reflected, as it seem'd, from wall to wall!
There, opening as I shut, onward he came,
That Broucoloka, not to be escaped,
With measured tread unwearied, like the wolf's
When tracking its sure prey: forward I sprang,
And lo! another room--another face,
Alike, but gloomier still; another door,
And the pursuing fiend--and on--and on,
With palpitating heart and yielding knees,
From room to room, each mirror'd in the last.
At length I reach'd a porch--amid my hair
I felt his desperate clutch--outward I flung--
The open air was gain'd--I stood alone!
IX.
That welcome postern open'd on a court--
Say rather, grave-yard; gloomy yews begirt
Its cheerless walls; ranges of headstones show'd,
Each on its hoary tablature, half hid
With moss, with hemlock, and with nettles rank,
The sculptured leer of that hyena face,
Softening as backwards, through the waves of time,
Receded generations more remote.
It was a square of tombs--of old, grey tombs,
(The oldest of an immemorial date,)
Deserted quite--and rusty gratings black,
Along the yawning mouths of dreary vaults--
And epitaphs unread--and mouldering bones.
Alone, forlorn, the only breathing thing
In that unknown, forgotten cemetery,
Reeling, I strove to stand, and all things round
Flicker'd, and wavering, seem'd to wane away,
And earth became a blank; the tide of life
Ebbing, as backward ebbs the billowy sea,
Wave after wave, till nought is left behind,
Save casual foam-bells on the barren sand.
X.
From out annihilation's vacancy,
(The elements, as of a second birth,
Kindling within, at first a fitful spark,
And then a light which, glowing to a blaze,
Fill'd me with genial life,) I seemed to wake
Upon a bed of bloom. The breath of spring
Scented the air; mingling their odours sweet,
The bright jonquil, the lily of the vale,
The primrose, and the daffodil, o'erspread
The fresh green turf; and, as it were in love,
Around the boughs of budding lilac wreathed
The honeysuckle, rich in earlier leaves,
Gold-tinctured now, for sunrise fill'd the clouds
With purple glory, and with aureate beams
The dew-refreshen'd earth. Up, up, the larks
Mounted to heaven, as did the angel wings
Of old in Jacob's vision; and the fly,
Awakening from its wintry sleep, once more
Spread, humming, to the light its gauzy wings.
XI.
A happy being in a happy place,
As 'twere a captive from his chains released,
His dungeon and its darkness, there I lay
Nestling, amid the sun-illumined flowers,
Revolving silently the varied scenes,
Grotesque and grim, 'mid which my erring feet
Had stumbled; and a brightness darting in
On my mysterious night-mare, something told
The what and wherefore of the effigies grim--
The wolfish, never-resting, tombless man,
Voicelessly haunting that ancestral home--
Yea of his destiny for evermore
To suffer fearful life-in-death, until
A victim suffer'd from the sons of men,
To soothe the cravings of insatiate hell;
An agony for age undergone--
An agony for ages to be borne,
Hope, still elusive, baffled by despair.
XII.
Thus as an eagle, from the altitude
Of the mid-sky, its pride of place attain'd,
Glances around the illimitable void,
And sees no goal, and finds no resting-place
In the blue, boundless depths--then, silently,
Pauses on wing, and with gyrations down
And down descends thorough the blinding clouds,
In billowy masses, many-hued, around
Floating, until their confines past, green earth
Once more appears, and on its loftiest crag
The nest, wherein 'tis bliss to rest his plumes
Flight-wearied--so, from farthest dreamland's shores,
Where clouds and chaos form the continents,
And reason reigns not, Fancy back return'd
To sights and sounds familiar--to the birds
Singing above--and the br
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