FROST, WILLIAMS, AND JONES.

HL Deb 03 February 1840 vol 51 cc1080-95

— Lord Brougham

said, that a petition had just been thrust into his hands on a subject of great importance, and to which he begged earnestly to crave the best attention of the House. It was from certain inhabitants of the cities of London and Westminster, and was numerously signed by many respectable persons, tradesmen and others, who felt a deep interest in the subject matter of the petition. He would best discharge the duty with which he had been, honoured, if he stated to their Lordships, in the petitioners' own words, their prayer, and the prefatory statement of facts to that prayer, which were comprised within a few lines. After having set forth the conviction of three persons—viz. Frost, Williams, and Jones, now prisoners in Monmouth gaol, they stated that a majority of the judges who had tried the prisoners had declared that the legal objection taken to the trial had been good and sufficient, and duly urged—not touching the question of time, on which a majority of the Judges held a difference of opinion from the majority who had decided that it was duly urged—that a majority of the fifteen Judges had decided that the objection to the trial was a good and sufficient one—that three several juries had recommended the prisoners to mercy, and that upwards of 200,000 persons had petitioned the Crown for their pardon. They, therefore, pray the House to address the Crown, in order that the said prisoners may be discharged from custody. He never, in his lifetime, remembered a greater interest being excited on any matter connected with judicial proceedings than had been throughout the whole country on this unhappy question—unhappy in all its bearings, but most unhappy in the errors which had had given rise to the objection which had lately been decided by the Judges of the land. It was deeply to be deplored, from the bad spirit which appeared to pervade some classes of the subject of this realm, but more deeply to be deplored from the ignorance pervading other classes, which made them the tools of designing men—deeply to be deplored from the grounds which gave rise to the objection—the errors which seem to pervade the whole prosecution, and which, in the present instance would prevent the law from being executed, and criminal justice almost entirely defeated. As a Member of the highest Court known to the law—as a Member of Parliament—he felt himself imperatively called upon to watch closely the proceedings of the Executive Government relative to the administration of justice. Before he proceeded to advert to the error which most unfortunately had been committed, and which seemed to prevail throughout the proceedings, he felt bound to state that a part only of the proceedings was stated in the petition. It was true that a majority of nine of the Judges of the land had held that the objection taken at Monmouth, but not there decided, was a valid one—but it was not stated that a similar majority of nine of these learned Judges had held that that objection had not been taken in proper time. Upon the validity of that objection he would give no opinion—He had no right to state that his opinion went with the minority of those learned personages—he would not be, as some other persons had been, presumptuous enough to say that the Judges had decided wrong. If there was any one more than another from whom it was imperatively demanded that he should respect the law and the Judges, it was from statesmen and Mem- bers of the Legislature, and men who, because they are law-makers, should not be proverbially known to be law-breakers. If there was any thing more imperatively demanded from them than another, it was that they should uphold the Judges, and do their best to inculcate veneration towards them from the people, and not cavil at them in order to ruin them in public estimation. He could assure their Lordships, that they would look in vain for respect for the laws if they ceased to make men respect the organs and authorities of the law—they would in vain call upon him to respect those oracles of the law if they ever so far forgot their bounden duty as to cavil at, misrepresent, and to slander those Judges when they happened, for purposes of their own and motives of their own, to dissent from the solemn opinion delivered by the Judges upon their solemn oaths; therefore it was, that whatever his private individual opinion might be, the law having been expounded, he had a right to hold no opinion at all, when those, the venerable organs and oracles of the law, had determined what it was. But there was a difference of opinion on the point, and out of that arose, among those most learned Judges, an intimation of a desire that the objection taken by the learned Gentlemen, the able counsel for those unhappy men, should not be pressed for the decision. They were induced to accede to that recommendation not from any doubt of the validity of their objection—that he knew; not from any fear that the objection was doubtful—that he knew; not because in point of fact, or rather of law, that the objection was not valid—and he had a right now to say so, because the Judges of England had determined that the objection was valid; but they were induced, in the exercise of a most delicate and anxious discretion—more anxious than most of their Lordships, who had never defended men on trial for their lives, he would take the liberty of saying were capable of forming any conception of, to reserve that point for the consideration of all the Judges. Nevertheless, he had known unprofessional men to criticise and canvass the discretion of men so situated, and which appeared to him almost as bad as any thing of the kind could be. He did not complain of the conduct of the learned and able counsel, but it appears they did, in the exercise of a most delicate and difficult discretion, agree to postpone arguing the objection upon the distinct statement made to them, that they and their clients should be put upon the self-same footing after the objection was decided, if the other Judges decided in their favour, as they would have stood if the objection had been decided in the country. Since then the objection had been' decided. That understanding, as he was authorized to state, most distinctly was, that they were to be put upon the same footing, provided the objection was sustained and approved of by a majority of the Judges, as if the majority of the Judges at the trial being pressed for the decision, had decided in favour of the prisoners. If the majority of the Judges at the trial had decided, upon being pressed for their decision, they must needs have instantly been acquitted. It was an objection fatal to the whole proceeding—it applied to every one of the witnesses. The Jury were empannelled—t e plea had been pleaded—nay, more than that, again they could not have been tried. That was the first and principal ground he wished their Lordships to consider, and the other was altogether independent of the former. The counsel for the prisoner had a right to press for judgment at the trial, and it now turned out, because they knew what the Judges had done—it turned out, too, that two out of those three Judges were in favour of the objection made at the trial, and of the party waiving the objection until after arraignment, and plea pleaded. It consequently followed as a matter of absolute demonstration, that if they had exercised their right of pressing the objection at the trial at Monmouth—it consequently followed as a certainty, that the objection would have been sustained, and the trial at once put an end to. He (Lord Brougham) knew, in point of fact, that that was not an opinion taken up after the arguments in town, but it was their opinion at Monmouth, at the trial. A stronger case—but infinitely strengthened by the bargain made with the counsel—a stronger case for absolute acquittal, in the whole course of his professional experience, he confessed he had never known. He had stated to their Lordships that he should add one word explanatory of his regret at what had taken place. He repeated that it was deeply to be lamented upon such an important question, that criminal justice should have been so defeated. Whose the fault might have been he did not stop to inquire; but it was due to a most experienced, able, and excellent officer of the Crown, that he should add, that his learned Friend, Mr. Maule, the Secretary for the Treasury.—[A noble Lord—The Solicitor for the Treasury. He begged pardon, it was the Solicitor for the Treasury he meant to express his commendation of. He was a gentleman who had served under various Governments without being offensive to any, and with the good will of most. In this case he had not served the list of the witnesses at the same time with the copy of the indictment. This was an omission which was easily accounted for: no doubt it was done in the hurry of business, and without reflection. But the nature of the objection was such, that if it had been taken at the proper time, there would only have been a postponement of the trial. The counsel for the accused had a right to take the objection at the time which would best serve the interest of his client. But what if the prosecutor was aware of the irregularity? It was stated before the fifteen Judges, that Mr. Maule was quite aware of it—that the counsel for the prosecution was aware of it. In fact, the Judges were aware, before they went down on the Commission, that the objection would be taken, and they went with the expectation that they should have to come back for a month. They never dreamed that for the purpose of keeping Members of Parliament four weeks longer in the country, the risk would be run of allowing justice to be defeated. However, a great error of judgment had been committed, which must lead to a complete defeasance of the criminal law in this case. He had several other petitions to present to their Lordships, and he thought it necessary, indeed it was his duty to inform them that numbers of his countrymen had done him the honour of sending him addresses, begging him to exert his influence in favour of those persons, and they had also done him the honour of sending him addresses to forward to the fountain of mercy, which he had done. He believed he might say that he had presented petitions to the Queen upon this subject to the amount of about 100—one of them signed by 54,000, another by upwards of 40,000, and another signed by upwards of 20,000. All this showed there was an understatement in the petition, which estimated the number at 200,000. He considered, looking at the circumstances of the case, that these unfortunate individuals were entitled to a total release, an extension of mercy it could not be called, because he conceived that a total release was a legal right and justice. The addresses that were presented to the Crown, pro- ceeded on three different grounds. One class prayed the extension of mercy upon the special circumstances of the case—another upon the illegality, or as some called it the inexpediency, and others the unlawfulness of the conviction; and the last proceeded upon a view of the evidence that the matter had not been rightly decided upon by the judge and jury. With the first ground he agreed, but he differed from the second, and he felt convinced that he should have the unanimous concurrence of that House, as a Court of Judicature, when he stated the objection which he had to the second and third grounds. He was against all capital punishment for trifling offences, and even for great offences, where the public feeling was against them. He had assisted their Lordships in putting an end to capital punishment in cases of larceny and forgery. But there were cases of an atrocious nature—murder and high treason—in which he considered it necessary that life should be taken away. It was for the purpose of preserving life that he would take it away—it was sacrificing one life in order to preserve many, and therefore he did not agree with those who said, that in no case ought there to be an exception to the rule of abolishing all capital punishments. But upon the third point there could not be any doubt. It was absolutely necessary for the administration of justice, that every investigation should be carried on, firmly and deliberately; and he held it to be an intolerable presumption in any class of men, be they ever so powerful, or ever so numerous, to sit in judgment upon a jury, and to say, had we, who have read the evidence in a newspaper, been in the jury-box, we would have arrived at a different conclusion from them—from the twelve men who, on their oaths, with the assistance of an experienced and enlightened judge, and with the incalculable benefit of having seen and heard every witness give his testimony upon his oath. He held it to be intolerable to object to the verdict of a jury, directed by a judge, who had heard the whole of the arguments. He should have given an imperfect opinion if he had confined his observations to one point; and he was bound to say, that he had never put the case before one deputation without finding that a calm statement of his objections had their weight. He trusted, therefore, that in consideration of the extraordinary importance of this matter, touching neither more nor less than the interference of the people with the ad- ministration of justice, their Lordships would excuse him for having detained them so long in stating an opinion which he believed was the unanimous opinion of all whom he then addressed. He cared not, the matter might be misrepresented elsewhere. He set a due value on popular opinion and excitement where he thought it was applicable—in cases of expediency, of right and interest to the public, in which the people were entitled to judge, but not in questions touching the administration of justice by sworn judges and sworn juries. He would, therefore, after having troubled them so long, present those petitions, which were all of the same nature, to the House.

The Marquess of Normanby

said, that their Lordships would readily suppose, that if he arose merely for the purpose of offering his individual opinion upon a subject of that nature, in opposition to that urged by his noble and learned Friend, with so much force and with all the authority of his name, he should do so with the greatest hesitation. But he had had an opportunity of appealing on the question to that party to whom his noble and learned Friend had alluded in the course of his address—he had had an opportunity of referring to the learned judges who had given on the matter their deliberate decision. He should be able to refer to that decision, not only in general terms, and in a manner which might be supposed a loose one, but as his noble Friend, in the course of the afternoon, had communicated to him his intention of presenting a petition upon the subject, he had referred to the judge who had presided at the commission at Monmouth, and he obtained his permission to give the House the substance of those communications which had passed between that learned person and other parties on the occasion. But before he would urge on their Lordships', with all the weight due to that authority, that they should not listen to the prayer of those petititioners, he would say a few words on that to which his noble and learned Friend had alluded, viz., the unfortunate conduct of the parties who had "conducted the trial." His noble and learned Friend stated, that he knew not where the blame of the proceeding rested, and he had afterwards alluded to a person for whom he entertained the highest respect, he meant the person who had prepared that prosecution, and on whom, no doubt, it was intended to make the blame rest. He would say on behalf of Government, that it was impossible for Government to trust the prosecution to any other than to the learned Gentleman who had conducted for so many years, and for so many Administrations, public prosecutions of a similar nature. As to the time at which the objection should have been taken, all he could say was, that those who had been trusted with the conducting of the case were convinced, that that objection of itself could be of no force or weight. So much for that unfortunate error, which, from a person of all the experience and character of the hon. and learned Gentleman, must be considered as such, and which he most deeply regretted, but which did not operate with any degree of hardship upon the prisoner, but was occasioned by the desire to furnish him with some information, which it was thought he ought to have on the first opportunity; and let the result of the objection be what it might, it was not complained the parties had suffered any substantial injury from the conduct of the prosecution. All that was urged by his noble and learned Friend, was urged upon the day after the decision of the judges by those two Gentlemen, with intense anxiety, and they stated verbally, that the very objection now made was considered valid by two of the learned judges who presided at the Special Commission at the time, and urged that it ought to have been decided at Monmouth. He informed Sir F. Pollock and Mr. Kelly, that he was anxious to receive any representation they chose to make on the subject, and should feel it his duty on receiving such, to refer it to those learned persons whose conduct was involved in the representation they made. He told them at that time the substance of the communication with the learned judges, as far as he was at liberty to do so. He would now read to their Lordships the communication received from the Lord Chief Justice on the decision of the judges on that occasion:— Westminster Hall, 28th January, 1840. My Lord—I have the honour to inform your Lordship, that the argument upon the three cases of the Queen v. Frost, the Queen v. Williams, and the Queen v. Jones, closed this afternoon, and that the judges, after considering the subject, have come to the following determination upon the two questions which have been argued before them viz.: First—A majority of the judges, in the proportion of nine to six, are of opinion, that the delivery of the list of witnesses was not a good delivery in point of law. But secondly—A majority of the judges, in the proportion of nine to six, are of opinion, that the objection to the delivery of the list of witnesses was not taken in due time. All the judges agreed, that if the objection had been made in due time, the effect of it would have been the postponement of the trial, in order to give time for a proper delivery of the list. The result, therefore, of the determination of the judges, is, that the conviction is right. I will have the honour of calling on your Lordship to-morrow at the rising of the Court, if I should receive any intimation to that effect. I have the honour to remain my Lord, your Lordship's obedient and faithful servant, N. C. TINDAL. The Lord Marquess of Normanby, &c. The result, therefore, of the determination of the judges was, that the conviction was right. He stated that communication to Sir Frederick Pollock and Mr. Kelly. They on that occasion used, he believed, the word "bargain;" that was one of the points to which he immediately directed the attention of Chief Justice Tindal, who distinctly denied that anything of the nature of a bargain had taken place. He would only say, that Sir Frederick Pollock and Mr. Kelly were in complete misunderstanding as to the nature of the point on which the judges were then deciding, but that he never saw two gentlemen more convinced that they were really right in their recollection. They, in accordance with his recommendation, forwarded to him a memorial of considerable length, on the understanding that it should be referred to the judges. Both this memorial and the reported account by the short-hand writer, he had forwarded to the Chief Justice. He would read that part of the memorial which seemed to bear on the point. [The noble Marques3 then read several portions of the memorial. It set forth, that in the course of the discussion, two of the judges appeared to hold a favourable opinion of the objection, and seemed inclined at once to pronounce in its favour, but that towards the close of the Court, at six o'clock, the Lord Chief Justice said, that he would reserve the point; that upon this the prisoner, John Frost, would not allow them, his counsel, to interfere further in his defence; that a consultation was held with him in the prison that night, and he consented at last to yield and go on with his defence; that in Court next clay a conversation took place between Sir Frederick Pollock and the Lord Chief Justice, to the effect that the prisoner should be precisely in the same situation as if the point had been decided at the time of the trial.] All their Lordships would have read the report of the trial. He had read it with intenseinterest, as he had not before heard of the objection which was raised. He had read it in the public papers, the report of which turned out to be very accurate, and he had never heard till within the last few days that it was supposed, that the point would be decided according to the opinion of two of the judges, if referred ultimately to all the fifteen judges. The impression upon his mind from the report was, that if the point reserved should be decided in favour of the prisoner, that the conviction should stand for nothing; that the prisoners would be exempted from all pains and penalties whatever. Having forwarded the memorial to the Chief Justice, he consulted with the other two judges, and he would read to their Lordships, the substance of a letter from them on this point. [Lord Lyndhurst: read the whole of the letter.] No, the first sentence did not refer to the point, and it would be of no use to read it. He had certainly the permission of the learned judge to read the whole communication, but he would only read that portion which was applicable to the point. He would begin with the second seutence:— As to the law, the uniform practice has been, so far back as we have any means of knowledge, that if the judge upon the trial of an indictment feels any serious doubt as to an objection that occurs in point of law, he decides the point against the prisoner, and allows the trial to proceed, reserving such point of law, in order that he may take the advice and opinion of all the other judges thereon. After consulting them, and hearing argument thereon (if thought necessary), the opinion of the judges is taken, and that of the majority binds the judge who has reserved the question. If that opinion should be against the prisoner, the law is suffered to take its course, and the sentence which has been passed remains. If the opinion of the judges is in favour of the prisoner, the constant course is for the judge who tried the prisoner, and passed the sentence, to apply to the Secretary of State for a free pardon. And this course in no way depends on any consent, express or implied, on the part of the prisoner; the judge pursues it at his own discretion, and decides the point for the present against the prisoner, giving him the benefit of further consideration and advice with the other judges. And this course is pursued for the manifest purpose of preventing a failure of justice, inasmuch as if the judge decided under his immediate impression, supposing it to be in favour of the prisoner, and directed an acquittal, there could be no new trial, although upon reference to the other judges, his own opinion was held to be wrong. On the other hand, if the opinion of the judge is at the time unfavourable to the prisoner, it can be reserved by that course, and if erroneous set right. With respect to the statement in the memorial of what took place at the trial, so far as relates to ourselves, we cannot but remark, that the learned Counsel labour under a complete misapprehension, at which we are the more surprised, as we expressly stated, that no distinction would be made between this and other cases tried at the assizes, but that it must follow the ordinary course. At the time of the discussion we all of us entertained serious doubts, more or less strong, on the objection that was raised before us. And if the law had obliged us to come to an immediate and final decision, without the power of consulting the judges, which the law does not, we were not prepared, without much further consideration, nor without hearing the arguments on the part of the Crown concluded, to come to any determination on the point. We therefore followed the ordinary course pursued on similar occasions, decided the point against the prisoner by allowing the trial to proceed, subject to the revision before referred to. We beg to inform your Lordship, that we think the circumstance stated and relied on in the memorial, viz., that two of the judges under the Special Commission, ultimately declared their opinion in favour of the objection, does in our judgment make no difference whatever; nor do we think, that any inclination in their minds at the time of the trial ought to affect the question; the law is taken from the majority of the judges when consuited. Under the circumstances above mentioned, we beg leave to represent to your Lordship, that in our opinion there is no ground whatever to entitle the prisoner, John Frost, to a free pardon. N. C. TINDAL. J. PARKE J. WILLIAMS. To the Most Noble the Marquess of Normanby," &c. The learned counsel had, therefore, laboured under misapprehension on the point, and he was surprised at it, because the Lord Chief Justice had stated, that this case would be treated on the same principles as all the cases heard at assizes. If the law had compelled them to come to a decision which it did not—and the arguments by the learned counsel did not in this point meet the views of law entertained by the learned judges—they could not have been prepared, without hearing the argument, to come to a conclusion. They had followed the ordinary course. The fact that, two of the judges on the commission had subsequently expressed their opinion in favour of the objection, made no difference. Under these circumstances, there was no ground which entitled the prisoners to a free pardon. He would presently state what effect the communications which had passed, had in the determination to which the Government arrived. He would first, however, read the short-hand writer's note, on that part of the case which had been called a bargain. It was the answer of the Chief Justice to a case cited by Sir P. Pollock. The Lord Chief Justice says:— I do not know anything about that case; I have explained the position in which the prisoner will stand, if the point should be decided by the judges in his favour. It will be precisely the same as if we had never so decided it. Then Mr. Baron Parke says, If there is a conviction, and the judges are of opinion that the objection is well-founded, a pardon will be issued at the recommendation of the Secretary of State, as a matter of course. Mr. Justice Williams made a remark, also, which showed his opinion not to be at variance with the other judges. He says, With precisely the same consequences that follow in other cases of the same kind. The impression on the mind of every one was, that if the point were decided in favour of the prisoner by a majority of the fifteen judges, he would not suffer any of the consequences of a conviction. The judges were of opinion, that the conviction was legal, and the Administration were of opinion, that the prisoners had sustained no substantial injustice; but concerning the question whether the extreme penalty of the law should be carried into effect, they were glad to consider that all this difference of opinion opened the door for the exercise of mercy; but he would take this opportunity of stating, that that consideration, and that consideration alone, forced them to such a conclusion. If it had not been for this difference of opinion, and if this difference of opinion had not thrown doubts and difficulties in their way, he had no hesitation in stating in the face of their Lordships, that lives would never have been more justly forfeited. And he had also no hesitation in stating, looking at the atrocity of the crime committed, the character of the persons who were the offenders, the number of the weak and misguided whom they had misled, and the vicious and criminal designs I which had exhibited themselves in other parts of the country, that but for this difference of opinion, it would have been the duty of the Government—its painful duty—to have overlooked all recommendation to mercy, and to have permitted the law to I take its course. It was necessary for him to explain why the prayer of the petition should not be acted upon. He had stated his reasons in which he entirely agreed | with the learned judges who had tried the case. The Administration had thought it their duty to save the lives of the prisoners, but the justice of the case would not be met, save by inflicting the extreme secondary sentence of the law, and by commuting the punishment of death into transportation for life.

Lord Wynford

was understood to say that he entirely agreed with the noble Marquess in the view of the case which he had so distinctly laid down. In the course of his experience he had never heard it doubted that every point was finally settled by a majority of the fifteen Judges, for whose opinion it had been reserved. As to the doctrine that the prisoner was entitled to his pardon because two of the Judges on the special commission were in favour of his objection, how, he would ask, was it known that such were the opinions of those learned Judges? It had not been, and could not be officially announced; and was a pardon to be granted on the reports of newspapers? He was of opinion that the prisoners ought not to receive a free pardon. If they did not carry the punishment into effect, it would be giving encouragement to traitors, and Chartism would prevail more than ever. He was glad that the lives of the prisoners had been saved, but justice demanded that they should receive some punishment. He quite approved of the course pursued by the noble Marquess.

Lord Brougham

wished to explain a few of his remarks which had been referred to by his noble Friend the Marquess of Normanby. He had not thrown the blame of the proceeding on Mr. Maule, who was only to blame in the first step, and this step might easily have been cured by going again to Monmouth four weeks afterwards. No blame as to the ultimate consequences could rest upon him. Not Mr. Maule, but the Crown counsel were to blame, and they were to blame for pronouncing that there was nothing in an objection in which a majority of the learned Judges said that there was a great deal. His argument, as to the two Judges out of the three, had been misunderstood; and as to the word "bargain," he only used that word for shortness. It was always lamentable when counsel and Judges disagreed. Now, the case was this. It was said that no party could compel by pressure any learned Judge to give his decision. He had never heard, in the course of his long professional experience, a case where a party having insisted on a decision, the Judge did not decide; and the most frightful consequences would ensue if they did not. He would suppose a case. Suppose an infamous charge to be brought against any one, and that an objection was raised—not a mere formal legal objection, but one which went to the very bottom, which involved the whole criminality of the case—was he to be told that he must wait until the fifteen Judges had assembled in London, and their opinion on the point taken? "No," such a man could say, "I have confidence in my objection, and I call upon you to decide by law. I will not consent to be convicted, to be branded, to be stigmatised, to pass through life with the stigma of conviction upon me, when that stigma ought at once to be wiped off, even though I may be pardoned afterwards." Pardoned, forsooth, where no guilt had been committed—where innocence had always breathed. This might be the case where the point was doubtful, but suppose that two out of the three Judges had no doubt? Suppose that the prisoners demanded the decision, and the Judges gave it, they must have been instantly acquitted—no proceedings could have been entered into—no trial could have begun. But it had been said, that they had not reason to know what were the opinions of the Judges. The experiment had been tried, and their opinions were known; and if they had by accident—he wished to put it on no surer, no higher ground—given their decision at the trial, these men must have been as safe as if they had never been tried, arraigned, indicted, convicted, or even committed the offence.

The Lord Chancellor

wished to say a few words on the question which had been raised by his noble and learned Friend (Brougham), whether a prisoner or his counsel had the choice of reserving a point for the decision of the fifteen Judges, or whether, if insisted upon, it was the duty of the Judges at once to decide. He believed that counsel had no power to demand a decision to be given at the time. Where a question arose on a trial in which the Judge or Judges entertained some doubt, the course which had always been adopted, was to pronounce a decision against the objection, reserving to themselves the power of obtaining the opinion of their brethren. The authority of the learned Judges—which his noble and learned Friend would not question, and which no one else could—had been very properly brought forward—and that set the question entirely at rest. As to the correctness of their opinions, there was no doubt in his mind; and what would be the consequences if such were not the case? It would render the opinion of the body of the Judges utterly useless. For what purpose could reference be made to the opinion of the fifteen Judges, if the previously formed opinion of those who presided at the trial was to be acted upon? He would suppose a case which had really occurred—the present case. Suppose that two out of the three Judges who presided were in favour of the validity of the objection, or were to come to that conclusion, or that counsel compelled them to decide; the course always, as far as he knew, was to decide against the objection, and the trial was always allowed to proceed. The opinion of the fifteen Judges had been taken, and that opinion was that the objection ought not then to have prevailed. Now, if the prisoner was entitled to have a pardon, what was done? At any rate this absurdity was perpetrated—that the majority of the Judges whose opinions were expressly sought, were rendered useless and treated as nothing, and the opinion of the two Judges originally present prevailed. By doing that, was it not rendering it utterly absurd to refer to the Judges at all? Why, then, under such circumstances, the decision might as well be given at once, for having asked and having obtained the opinion of the whole bench, to that opinion no deference was paid. If that course were adopted, no attention would be paid to the una- nimous opinion of the Judges, save of those who were on the trial. He objected to any such a conclusion, which he thought unreasonable and absurd. It was not according to the course of practice, and it would lead to consequences which must prevent the due and efficient administration of justice. Unless a disputed point was reserved for the opinion of all the Judges, the only good gained was giving the prisoner the benefit of an error. He trusted that their Lordships would not form an opinion contrary to the opinion of the Judges.

Lord Brougham

then presented the other petitions, and said that he would rest his case upon this issue. Two of the Judges out of the three had been in favour of the objection, and if the point had been decided at the time of the trial, the prisoners must have been acquitted. If it were denied that such was the case, and two of the Judges were in favour of the objection, he would, under such a circumstance, withdraw his prayer.

Petitions laid upon the table.