_the notorious fact_, that the judges had pronounced certain counts to
be good; and it was also against the _common probability_ of every case.
He admitted the general opinion of the profession to have long been,
that a general judgment, if supported by one sufficient good count, was
not injured by a bad one associated with it. "I know," said his
lordship,[12] "what course I should have taken if pressed to give
judgment at the trial, and had given it. If nothing had taken place
respecting the validity of any part of the indictment--but much more if
its validity had been disputed, but established--I should leave
apportioned the sentence to the degree of criminality that was stated in
all the counts which were proved in evidence."--"I see no inconvenience
in compelling a judge to form an opinion on the validity of the counts,
before he proceeds to pass judgment. He ought to take care that a count
is good before he allows a verdict to be taken, or at least judgment to
be entered upon it; and great good will arise from that practice. I am
deliberately of opinion that this is a right and wholesome practice,
producing no inconvenience, and affording a great security for justice.
* * * In criminal cases, all difficulty may be entirely avoided by the
court passing a separate judgment on each count, and saying, 'We adjudge
that on this count, on which the prisoner is found guilty, he ought to
suffer so much; that on the second count, having been found guilty, he
ought to suffer so much; whether the count turn out to be good or not,
we shall pronounce no opinion; that question would be reserved for a
superior court. A court of error would then reverse the judgment only on
such counts as could not be supported in law--leaving that to stand
which had proceeded on valid charges."--"Where a felony was established,
requiring a capital punishment, or transportation for life, the number
of counts could make no difference; because the punishment pronounced on
any one exhausted the whole materials of punishment, and admitted of no
addition."--"The current notion, that one count alone could support any
sentence applicable to the offences stated in the whole indictment, can
be accounted for only by Lord Mansfield's general words, needlessly and
inconsiderately uttered, hastily adopted, and applied to a stage of the
proceedings in which they are not correct in law."

Then came Lord Cottenham--a cold, clear-headed lawyer, cautious, close,
and