and the
punishment discretionary--can judgment be reversed on a writ of error?
The whole matter may now, in fact, be reduced to this single question:
Can a judgment inflicting fine or imprisonment be reversed by a court of
error, because that judgment proceeded on an indictment containing both
_bad and good_ counts, and in respect of which _some_ of the findings of
the jury were either defective or defectively entered?--Let us now
listen to the decision of that venerable body of men, who are, in the
language of our great commentator, "_the depositaries of the laws, the
living oracles, who must decide in all cases of doubt, and who are bound
by an oath to decide according to the law of the land._"[8] The
questions which they had thus to consider, moreover, were not questions
of rare, subtle, unusual, and speculative, but of an ordinary practical
character, such as they were concerned with every day of their lives in
administering the criminal law of the country.

First, then, were there any bad counts in the indictment?

The judges were unanimously of opinion that TWO of the counts were bad,
or insufficient in law--and two only--which were the SIXTH and SEVENTH
counts. They hold positively and explicitly, that the remaining NINE
COUNTS WERE PERFECTLY VALID.

The Chief-Justice (Tindal) thus delivered this unanimous opinion of
himself and his brethren on this point.[9]

"No serious objection appears to have been made by counsel for the
prisoners, against the sufficiency of any of the counts prior to the
sixth. Indeed, there can be no question that the charges contained in
the FIRST FIVE COUNTS, _do amount in each to the legal offence of
conspiracy, and are sufficiently described therein_.

"We all concur in opinion as to the EIGHTH, NINTH, and TENTH counts, (no
doubt whatever having been raised as to the sufficiency of the ELEVENTH
count,) that the object and purpose of the agreement entered into by the
defendants and others, as disclosed upon those counts, is an agreement
for the performance of an act, and the attainment of an object, which is
a violation of the law of the land."

With reference to the SIXTH and SEVENTH counts, in the form in which
they stand upon their record, the judges were unanimously of opinion,
that these counts "did not state the illegal purpose and design of the
agreement entered into between the defendants, with such proper and
sufficient _certainty_ as to lead to the _necessary_ conclusion