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