o 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
c