hem,
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 r