ecord. However numerous and mischievous may have been the
errors committed by the inferior court, _a court of error_ can take no
cognisance of them, if they do not appear specifically and positively
upon the record, however valid may be the claim which these errors may
notoriously prefer _to the interference of the executive_. Consider what
a very serious thing it is--what a shock to the public confidence in the
administration of justice--to reverse a judgment pronounced after due
deliberation, and under the gravest responsibilities, by a court of
justice! The law and constitution are properly very tender in the
exercise of such a perilous power, and have limited it to the case of
"MANIFEST" error--that is, not the vehement, the immense _probability_
that there has been error--but the CERTAINTY of such error _necessarily
and exclusively appearing from the record itself_. To act upon
speculation, instead of certainty, in these cases, is dangerous to the
last degree, and subversive of some of the fundamental principles of
English jurisprudence. "Judgment may be reversed in a criminal case by
writ of error," says Blackstone, "for NOTORIOUS (_i. e._ palpable,
manifest, patent) mistakes in the judgment, as when a man is found
guilty of PERJURY, (_i. e._ of a misdemeanour,) and RECEIVES THE
JUDGMENT OF FELONY." This is the true doctrine; and we submit that it
demonstrates the error which has been committed in the present instance.
Let us illustrate our case by an example. Suppose a man found guilty
under an indictment containing two counts, A and B. To the offence in
count A, the legislature has annexed one punishment only, viz.
_transportation_; to that in count B, _imprisonment_. The court awards
sentence of transportation; and, on a writ of error being brought, the
court above pronounces count A to be bad. Here it appears INEVITABLY and
"manifestly" _from the record_, that there has been error; there is no
escaping from it; and consequently judgment _must_ be reversed. So where
the judgment is the infliction of punishment "for his offen_ces_"
aforesaid: there being only two offences charged, one of which is
contained in a bad count, containing therefore no "_offence_" at all.
Apply this principle to the present case. Does this record, in
sentencing the defendant "for his offences aforesaid," _conclusively_
and _necessarily_ show that the court regarded the sixth and seventh
counts as containing "offences," and awarded punish