r into which we cannot help thinking the House of Lords has
fallen, and which is abundantly evidenced by their judgment: viz. that a
court of error has any concern whatever with, or can draw any inference
whatever from, the AMOUNT of punishment. The reasoning of the judges is
here perfectly conclusive. "If a sentence be OF THE KIND which the law
allows, the _degree_ of it is not within the competence of a court of
error. If a fine be an appropriate part of the sentence of a court
below, the excess of it is no ground of error. What possible line can be
drawn as to the reasonableness and excess, so as to affect it with
illegality? It is obvious there can be none. If in _this_ case, the
sentence had been _transportation_, the sentence would have been
_illegal_: Why? Because not of _the kind_ authorized by law in such a
case." Any presumption, therefore, made by a court of error, from the
_amount_ of punishment awarded, as to which of the counts had been taken
into consideration by the judges in giving their judgment, is manifestly
based upon insufficient and illegal grounds. Can these principles have
been duly pondered by the lords? We fear not. Look at Lord Cottenham's
supposition of two counts for libel: one for a very malignant one, the
other for one comparatively innocuous; and a sentence of heavy fine and
imprisonment passed, evidently in respect of the malignant libel, which
a court of error decides to be no libel at all. Lord Cottenham appears
to rely greatly on this supposed case; but is it not perfectly clear,
that it is not a case of error _on the record_--and therefore totally
inapplicable to the case which he had to consider? The defendant would
have certainly sustained an injury in that case; Where is the remedy?
There is _no legal_ remedy, any more than there is when a man has been
wrongfully _acquitted_ of a manifestly well-proved crime, or unjustly
convicted of a felony. The mercy, or more properly the sense of
_justice_ entertained by the _executive_, must be appealed to in either
case; such power of interposition having, in the imperfection of human
institutions, been wisely reserved to the supreme power to afford
redress in all cases where the LAW cannot. Lord Cottenham's reasoning
appears to us, in short, based upon two fallacies--a _petitio
principii_, in _assuming_ that judgment was entered upon all the counts;
the _question_ being, _was_ it so entered? The other is, that a court of
error is competent t