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 l