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
