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.
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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 offences" 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 bright vale beneath,
With cottages and trees—and the blue sky—
And the glad waters murmuring to the sun.

FRENCH SOCIALISTS.[28]

Socialism, as well in this country as in France, may be regarded as an offset of the French Revolution. It is true that, in all times, the striking disparity between the conditions of men has given rise to Utopian speculations—to schemes of some new order of society, where the comforts of life should be enjoyed in a more equalized manner than seems possible under the old system of individual efforts and individual rights; and it may be added that, as this disparity of wealth becomes more glaring in proportion as the disparity of intelligence and political rights diminishes, such speculations may be expected in these later times to become more frequent and more bold. Nevertheless we apprehend that the courage or audacity requisite to attempt the realization of these speculative schemes, must confess its origin in the fever-heat of the French Revolution. It required the bold example of that great political subversion to prompt the design of these social subversions—to familiarize the mind with the project of reducing into practice what had been deemed sufficiently adventurous as reverie.

What a stride has been taken since those olden times, when the philosophic visionary devised his Utopian society with all the freedom, because with all the irresponsibility, of dreams! He so little contemplated any practical result, that he did not even venture to bring his new commonwealth on the old soil of Europe, lest it should appear too strange, and be put out of countenance by the broad reality: but he carried it out to some far-off island in the ocean, and created a new territory for his new people. A chancellor of England, the high administrator of the laws of property, could then amuse his leisure with constructing a Utopia, where property, with all its laws, would undergo strange mutation. How would he have started from his woolsack if any one had told him that his design would be improved upon in boldness, and that such men as his own carpenter and mason would set about the veritable realization of it! At the present time nothing is more common or familiar than the project of changing entirely the model of society. "To subvert a government," writes M. Reybaud of his own country men, "to change a dynasty or a political constitution, is now an insignificant project. Your socialist is at peace with kings and constitutions; he merely talks in the quietest manner imaginable of destroying every thing, of uprooting society from its very basis."

Indeed, if the power of these projectors bore any proportion to their presumption, our neighbours would be in a most alarming condition. To extemporize a social system, a new humanity, or at least a new Christianity, is now as common as it was formerly, on leaving college, to rhyme a tragedy. The social projector, sublimely confident in himself, seems to expect to realize, on a most gigantic scale, the fable of Mesmerism; he will put the whole world in rapport with him, and it shall have no will but his, and none but such blind, imitative movements as he shall impress on it. And it is to a sort of coma that these projectors would, for the most part, reduce mankind—a state where there is some shadow of thought and passion, but no will, no self-direction, no connexion between the past and present—a state aimless, evanescent, and of utter subjugation. Fortunately these social reformers, however daring, use no other instruments of warfare than speech and pamphlets; they do not betake themselves to the sharp weapons of political conspiracy. They must be permitted, therefore, to rave themselves out. And this they will do the sooner from their very number. There are too many prophets; they spoil the trade; the Mesmerizers disturb and distract each other's efforts; the fixed idea that is in them will not fix any where else. Those who, in the natural order of things, should be dupes, aspire to be leaders, and the leaders are at a dead struggle for some novelty wherewith to attract followers. We have, for instance, M. Pierre Leroux, most distinguished of the Humanitarians, the last sect which figures on the scene, bidding for disciples—with what, will our readers think?—with the doctrine of metempsychosis! It is put forward as a fresh inducement to improve the world we live in, that we shall live in it again and again, and nowhere else, and be our own most remote posterity. We are not assured that there is any thread of consciousness connecting the successive apparitions of the same being; yet some slight filament of this kind must be traceable, for we are informed that M. Leroux gives himself out to have been formerly Plato. He has advanced thus far in the scale of progression, that he is at present M. Leroux.[29]

Still the frequent agitation of these social reforms cannot be, and has not been, without its influence on society. It is from this influence they gain their sole importance. Such schemes as those of St Simon, of Fourier, and of our own Robert Owen, viewed as projects to be realized, are not worth a serious criticism. In this point of view they are considered, at least in this country, as mere nullities. No one questions here whether they are feasible, or whether, if possible, they would be propitious to human happiness. But the constant agitation in society of such projects may be no nullity—may have, for a season, an indisputable and very pernicious influence. As systems of doctrine they may not be ineffective, nor undeserving of attention; and in this light M. Reybaud, in the work we now bring before our readers, mainly considers them.

M. Reybaud has given us a sketch of the biography and opinions of the most celebrated of those men who have undertaken to produce a new scheme of human life for us; he has introduced his description of them and their projects by some account of the previous speculations, of a kindred nature indeed, but conducted in a very different spirit, of Plato, Sir Thomas More, and others; and he has accompanied the whole with observations of his own, which bear the impress of a masculine understanding, a candid judgment, and a sound, healthy condition of the moral sentiments. The French Academy has distinguished the work by according to it the Montyon prize—a prize destined annually to the publication judged most beneficial to morals; and in this judgment of the Academy every private reader, unless he has some peculiar morality of his own, will readily acquiesce.

Our author is not one of those who at once, and without a question, reject all schemes for the amelioration of society; nor has he sat down to write the history of these social reformers for the mere purpose of throwing on them his contempt or irony. He has even been accused, it seems, by some of his critics, of manifesting too much sympathy with the enthusiasts he has undertaken to describe. He tells us, in the preface to his second edition, that he has encountered the contradictory accusations of being too severe, and too indulgent, towards them; from which he concludes, that he cannot have widely departed from the tone which truth and impartiality would prescribe. This is a conclusion which authors are very apt to draw; they very conveniently dispatch their several critics by opposing them to each other. But this conclusion may be drawn too hastily. Two contradictory accusations do not always destroy each other, even when they are made by judges equally competent. The inconsistency may be in the author himself, who may, in different portions of his work, have given foundation for very opposite censures. In the present case, although we have already intimated that M. Reybaud writes with a spirit of fairness and candour, we cannot admit him to the full benefit of the conclusion he draws in his own favour, from the opponent criticisms he has met with. There are individual passages in his work which it would be difficult to reconcile with each other, and which invite very different criticisms. On some occasions he appears to attribute a certain value to these tentatives at social reform, and intimates that they may probably be the precursors, or may contain the germ, of some substantial improvement; whilst at other times, he scourges them without pity or compunction, as a species of moral pestilence. He seems not to have been able, at all moments, to defend himself from the vertige which possesses the personages of whom he is writing; like a certain historian of witchcraft, whom we have somewhere read of, who had so industriously studied his subject that a faith in the black art imperceptibly gained upon him. The narrative goes on to say, that the unfortunate historian of witchcraft attempted to practise the knowledge he had obtained, and was burned for a wizard. But there the analogy will certainly fail. M. Reybaud soon recovers from the visionary mood, and wakes himself thoroughly by inflicting the lash with renewed vigour upon all the other dreamers around him.

This shadow of inconsistency is still more perceptible when speaking of the lives and characters of his socialists. Sometimes the reader receives the impression that an egregious vanity, an eccentric ambition, and perhaps a little touch of monomania, would complete the picture, and sufficiently explain that conduct, of a hero of socialism. At another time his enthusiasts assume a more imposing aspect. St Simon sacrificing his fortune, abjuring the patronage of the court, dying in extreme poverty—Charles Fourier refusing all entrance into commerce that would implicate him with a vicious system, and pursuing to the end, amidst want and ridicule, the labours of social regeneration—our own Robert Owen quitting ease and fortune, and crossing the Atlantic for the New World, there to try, upon a virgin soil, his bold experiment of a new society;—these men rise before us endowed with a certain courage and devotion which ought to command our admiration. We see them in the light of martyrs to a faith which no one shares with them—sacrificing all, enduring all, for a hope which is of this world, for schemes which they will never see realized, for a heaven which they may prophesy, but which they cannot enter; manifesting, in short, the same obstinacy of idea, and the same renouncement of self, which distinguish the founders of new religions. And indeed we are not disposed to deny, that in their character they may bear a comparison, in many points, with religious impostors. There is this striking difference, however, in the effect of their teaching: the religious impostor has often promised a paradise of merely voluptuous enjoyment, but he has promised it as the reward of certain self-denying virtues to be practised here on earth; whilst the socialist insists upon bringing his sensual ill-ordered paradise, wherein all virtue is dispensed with as superfluous, here, at once, upon this earth we have to live and toil in.

The first volume of the work contains an account of the life and writings of St Simon, Fourier, and Owen. The second is very miscellaneous. We encounter, to our surprise, the name of Jeremy Bentham in the category of socialists, and are still more startled to learn that the Utilitarians derive their origin from Robert Owen! It is a jumble of all sects, religious and political, in which even our Quakers are included in the list of social reformers—our excellent Friends, who assuredly have no wish whatever to disturb the world, but seek merely to live in it as it is, with the additional advantage of being themselves particularly quiet and comfortable. But we are so accustomed to the haste of negligence of the majority of French writers whenever they leave their own soil, (unless the literature or concerns of a foreign country be their special subject,) that we are not disposed to pass any very severe censure on M. Reybaud; and still less should we do him the injustice to prejudge his qualifications as an historian of his own countrymen, by the measure of accuracy he may display in that part of his work which relates to England. It is a part of his work which we have but slightly perused; our attention has been confined to the socialists of France.

Amongst these founders of society, and constructors of Mahometan paradises, Fourier is, we believe, the least known in this country. Some brief account of him will, we think, be acceptable; more especially as some of his ideas, leaving the narrow circle of his disciples, have found partisans amongst men who, in other respects, have a reputation for sobriety of thought. Our readers need not fear that we shall overwhelm them with all the institutions, plans, projects, arrangements—the complete cosmogony, in short, of this most laborious of the tribe. A very little of such matter is quite enough. One may say with truth that it is such stuff,

"Whereof a little more than a little
Is by much too much."

Nothing is more charming to the imagination than the first general idea of some new community, where all men are to be happy, every body active, benevolent, reasonable. But the moment we leave this general idea, enter upon particulars, and set about the arrangements necessary for this universally comfortable state of things, there is nothing in the world more tedious and oppressive. Proposals for new political institutions are sufficiently wearisome; but proposals for earthly elysiums, which are to embrace the whole circle of human affairs, become insupportably dull. It is child's play, played with heavy granite boulders. No; if we were capable of being seduced for a moment into the belief of some golden age of equality, where a parental government, presiding over all, should secure the peace and prosperity of all, we should need no other argument to recover us from the delusion than simply to read on, and learn how this parental government intends to accomplish its purpose. When we find that, in order to be relieved from domestic cares, we are to have no home at all; that our parental government, in order to provide for our children, begins by taking them away from us; when we picture to ourselves the sort of wooden melancholy figures we must become, (something like the large painted dolls in a Dutch garden, stuck here and there without choice or locomotion of their own,) we speedily lose all inclination to enter upon this discipline of happiness. We quit with haste this enchanted garden, which turns out to be an enormous piece of clockwork, and embrace with renewed content the old state of personal freedom, albeit attended with many personal inconveniences. Whilst reading of Utopian schemes, the idea has very vividly occurred to us: suppose that some such society as this, where land and wives, money and children, are all in common, had been for a long time in existence, and that some clever Utopian had caught an inkling of the old system so familiar to us, and had made the discovery that it would be possible, without dissolving society, to have a wife of one's own, a house of one's own, land and children of one's own. Imagine, after an age of drowsy clockwork existence, one of these philosophers starting the idea of a free society, of a social organization based upon individual rights and individual effort—where property should not only be possessed, but really enjoyed—where men should for the first time stretch their limbs, and strain their faculties, and strive, and emulate, and endure, and encounter difficulties, and have friendships. What a commotion there would be! How would the younger sort, rebelling against the old rotten machine in which they had been incarcerated, form themselves into emigrating bands, and start forth to try upon some new soil their great experiment of a free life! How would they welcome toil in all its severity—how willingly practise abstinence, and suffer privation, for the sake of the bold rights which these would purchase!—how willingly take upon themselves the responsibility of their own fate to enjoy a fortune of their own shaping! Hope herself would start from the earth where she had been so long buried, and waving her rekindled torch, would lead on to the old race of life!

Charles Fourier was the son of a woollen-draper at Besançon. Two circumstances in his early history appear to have made a strong impression upon him. When he was a child, he contradicted, in his father's shop, some customary falsehood of the trade, and with great simplicity revealed the truth; for this he was severely reprimanded. Afterwards, when he was of the age of nineteen, and a clerk in a merchant's house at Marseilles, he was present at a voluntary submersion of grain, made in order to raise the price in the market. These circumstances, he used to say, opened his eyes to the nature of human relations. Falsehood and selfishness, systematic falsehood and selfishness without a shadow of scruple, were at the basis of all our commercial dealings. It was time, he thought, that a new order of things should arise, founded upon veracity and a harmony of interests.

For himself, his part was taken. He became the man of one idea. "We might rather say of him," writes M. Reybaud, "that he traversed the world, than that he lived in it." He refused to enter into any commercial dealings that might implicate him in the existing system, and warp his feelings in favour of it; and exercised to the last, for a bare subsistence, the mere mechanical employment of a copying clerk. He never understood the art of making for himself two separate existences: one in the domain of fiction or of thought; the other in the land of reality. He passed all that might be called his life in the ideal world of his own creating.

According to Fourier, there is but one deep and all-pervading cause of the miseries of man: it is, that he does not comprehend the ways of God, or, in other words, the laws of his own being. If humanity does not work well, and with the same harmony that the planetary system exhibits, it is because he is determined to impress upon it other movements than those the Creator designed. Between the creature and the Creator there has been, as he expresses it, a misunderstanding for these five thousand years past.

The great error, it seems, that has been committed, is the supposing that there are any passions of man which require to be restrained. God has made nothing ill—nothing useless. You have but to let these passions quite loose, and it will be found that they move in a beautiful harmony of their own. These attractions—such is his favourite word—are as admirably adjusted as those which rule over the course of the planets. Duty, he says, is human—it varies from epoch to epoch, from people to people. Attraction—that is to say, passion—is divine; and is the same amongst all people, civilized and savage, and in all ages, ancient and modern. At present the passions are compressed, and therefore act unhappily; in future, they shall be free, satisfied, and shall act according to the law they have received from God. To yield to their impulse is the only wisdom; to remove whatever obstacles society has placed in the way of their free exercise, is the great task of the reformer.

Fourier does not hesitate to place himself by the side of Newton, in virtue of his discovery of this new law of attraction. If any comparison can be made, we think—inasmuch as to unravel the problem of humanity is a greater task than to elucidate the movements of the planets—that Fourier was warranted in placing himself infinitely above Newton. Unfortunately, there is this difference between the two, that Newton's law explains existing phenomena, while Fourier's explained phenomena that do not exist—that are, however, to exist some day.

Having established his fundamental law of the attraction of the passions, (which, he finds, amount to the number of twelve, and, in this respect, to bear some occult analogy to the sidereal system, the prismatic colours, and the gamut,) he has nothing to do but to set them fairly at work. This he does, and discovers that they form men into delightful communities, or phalanges, of about eighteen hundred men each. Here nothing shall be wanting. Whether it is love or labour, attraction supplies all. "Labour will be a charm, a taste, a preference—in short, a passion. Each man will devote himself to the occupation that he likes—to twenty occupations, if he likes twenty. A charming rivalry, an enthusiasm always new, will preside over human labour, when, under the law of attraction, men will be associated by groups, the last social fraction—by series, which are the association of groups—by phalanges, which are the association of series."—(P. 123.)