Various
Blackwood's Edinburgh Magazine, Vol. 68, No 420, October 1850
All the main facts of the case were universally known before the trial took place, together, of course, with the legal category to which they must be referred, to satisfy the conditions of high treason. The nature of that offence was thus tersely and beautifully explained by the Chief Justice, —5
"Gentlemen, the crime of high treason, in its own direct consequences, is calculated to produce the most malignant effects upon the community at large; its direct and immediate tendency is the putting down the authority of the law, the shaking and subverting the foundation of all government, the loosening and dissolving the bands and cement by which society is held together, the general confusion of property, the involving a whole people in bloodshed and mutual destruction; and, accordingly, the crime of high treason has always been regarded by the law of this country as the offence of all others of the deepest dye, and as calling for the severest measure of punishment. But in the very same proportion as it is dangerous to the community, and fearful to the offender from the weight of punishment which is attached to it, has it been thought necessary by the wisdom of our ancestors to define and limit this law within certain express boundaries, in order that, on the one hand, no guilty person might escape the punishment due to his transgression by an affected ignorance of the law; and, on the other, that no innocent man might be entangled or brought unawares within the reach of its severity by reason of the law's uncertainty."
The following were fearful words to be heard, or afterwards read, by those who were charged with the defence of Frost. They occur, like the preceding passage, in the luminous charge of the Chief Justice to the Grand Jury, on the 10th December 1839: —
"An assembly of men, armed and arrayed in a warlike manner, with any treasonable purpose, is a levying of war, although no blow be struck; and the enlisting and drilling and marching bodies of men are sufficient overt acts of that treason, without coming to a battle or action. And, if this be the case, the actual conflict between such a body and the Queen's forces must, beyond all doubt, amount to a levying of war against the Queen, under the statute of Edward. It was quite unnecessary to constitute the guilt of treason that the tumultuous multitude should be accompanied with the pomp and pageantry of war, or with military array. Insurrection and rebellion are more humble in their first infancy; but all such external marks of pomp will not fail to be added with the first gleam of success. The treasonable design once established by the proper evidence, the man who instigated, incited, procured, or persuaded others to commit the act, though not present in person at the commission of it, is equally a traitor, to all intents and purposes, as the man by whose hand the act of treason is committed. He who leads the armed multitude towards the point of attack, and then retires before the blow is struck – he who remains at home, planning and directing the proceedings, but leaving the actual execution of such plans to more daring hands – he who, after treason has been committed, knowingly harbours or conceals the traitor from the punishment due to him, all these are equally guilty in the eye of the law of the crime of high treason."
The head of treason applicable to the facts of the case under consideration is the third in statute 25 Edward III. c. 2, which concisely declares it to exist "if a man do levy war against our lord the King in his realm." This has been the law of the land for just five centuries, i. e. since the year 1351. But in the application of these words, of fearful significance, the object with which arms are taken up must be a GENERAL one – "the universality of the design making it a rebellion against the state, a usurpation of the power of Government, and an insolent invasion of the King's authority" – "under pretence to reform religion and the laws, or to remove evil counsellors, or other grievances, whether real or pretended."6 Or, to adopt the definition of Mr Kelly, in addressing the jury in this very case, it is necessary to prove "that the prisoner levied war against her Majesty, with intent by force to alter the law, and subvert the constitution of the realm."7 To appreciate the position of the prisoner, and the difficulties with which his counsel had to struggle, it may here be mentioned, that he admitted the prisoner to be a Chartist, as it was called – that is, a supporter of the following five points of sweeping change in the political institutions of the country, – "Universal suffrage, vote by ballot, annual parliaments, no property qualification, and payment of members of parliament." This was also, during the trial, avowed by the prisoner.8
Having thus got a clear view of the law, let us briefly indicate the facts– the palpable, notorious, leading facts, known to be such by the prisoner's counsel, as soon as they had perused their briefs.
A body of ten thousand men, principally miners from the surrounding country, headed, in three divisions, by Frost, and two other men, Jones and Williams, (Frost having five thousand under his command,) and armed indiscriminately with muskets, pikes, axes, staves, and other weapons, was to make a descent upon the peaceful town of Newport, during the night of Sunday, the 3d November 1839! Tempestuous weather prevented the preconcerted junction of these three bands; but, between eight and nine o'clock on the Monday morning, Frost's division, five thousand strong, marched into the town – and, headed after a fashion by him, commenced an attack upon a small inn, where they knew that a handful of troops was stationed, about thirty in number, under command of a lieutenant. As soon as the mob, who formed steadily, saw the soldiers drawn up in the room – the windows of which were thrown open – they cruelly fired into it, and also rushed through the doors into the passage. On this, the lieutenant gave the word of command to fire. He was obeyed – and with deadly effect, as far as regarded some thirty or forty, known to have received the fire, many of whom were shot dead on the spot. But this cool promptitude and determination of the troops put an end instanter to the insane insurrection. This vast body of supposed desperadoes fled panic-struck in every direction; and Frost himself, who was unquestionably on the very spot at the very time when and where the attack commenced, fled in ridiculous terror,9 and was arrested that evening at a friend's house adjoining his own, armed with three loaded pistols, and having on him a powder-flask and a quantity of balls. His brother heroes, Williams and Jones, were also arrested, together with many others; and there ended the formidable outbreak, which had more astounded than alarmed the public; leaving, however, the instigators and conductors to a speedy and very dismal reckoning with that same public. The active management of matters by Frost was beyond all doubt, and it seemed never to have been wished to conceal it. He was the Jack Cade of the affair. He planned the order of march; the time, place, and mode of attack; and explained the immediate and ulterior objects of the movement. Shortly before the outbreak, he was asked by one of his adherents, "what he intended to do?" He answered, —
"First, they should go to the new poor-house and take soldiers and arms; then, he said, there was a storehouse, where there was plenty of powder; then, they would blow up the bridge, that would stop the Welsh mail which did run to the north, and that would be tidings; and they would commence there in the north on Monday night, and he should be able to see two or three of his friends or enemies in Newport." – (vol. i., p. 36.)
Similar observations he made to another of his followers, who asked him, on hearing him give orders for the guns to take the front, the pikes next, the bludgeons next, – "in the name of God, what was he going to do? was he going to attack any place or people?" he said, —
"He was going to attack Newport, and take it – and blow up the bridge, and prevent the Welsh mail from proceeding to Birmingham: that there would be three delegates there, to wait for the coach an hour and a half after the time; and if the mail did not arrive there, the attack was to commence at Birmingham, and be carried thence to the North of England, and Scotland, and that was to be the signal for the whole nation." – (vol. i., p. 33.)
The coal and iron trade in these parts, from which the population derived their subsistence, had seldom been more prosperous than at the time when this movement was concerted and made: employment was easily obtained; wages were high; and those concerned in the affair had no private grievances to redress. At the same time, it was notorious that political agitation, on the subject of the Charter aforesaid, had for some time prevailed there – that the population had been organised for combined and effective action by affiliated societies; and Frost, the prime mover – a pestilent agitator, who, occupying the position of a decent tradesman, a linendraper, in Newtown, had been rashly raised to the local magistracy, from which he was soon degraded for sedition – declared his object to be, to make the Charter the law of the land. All these, and many other facts, which had been elicited during the preliminary examinations, were known to the prisoner's counsel, who had copies of all the depositions which had been made by the witnesses; and also knew the precise terms in which the indictment was framed, and the name, calling, and residence of every witness to be produced in proof of that indictment.
How was this towering array of facts to be encountered, with these enlightened judges to conduct the inquiry, and guide the jury, and very able and determined counsel to elicit and arrange the facts, and enforce them on the jury – and have the last word with the jury in so doing? We may well imagine how anxious and disheartening were the consultations of the prisoner's counsel before going into court. Neither they, nor their attorneys, could disguise from themselves the desperate nature of the case in which they were concerned. They would probably determine to cross-examine the witnesses very cautiously and rigorously, with a view to breaking down important links in the case; and it is likely that their paramount object in conducting the defence, would be to aim at supplying Frost with some other than a general object– something else than establishing the Charter as the law of the land. A hopeful prospect! But besides all this, it must have been determined, of course, to throw no single chance away, whereon – however, whenever it presented itself – to fight the fearful case for the Crown inch by inch, and foot by foot – contesting every technical point, with a view to detecting any possible slip in either the preliminary or any other part of the proceedings of the experienced and watchful Crown officers. Here, again, was a hopeful prospect! Their proceedings had been doubtless advised beforehand by the Attorney and Solicitor General, and conducted by Mr Maule, the Solicitor of the Treasury, in person – himself a barrister, and consummately qualified for his post. He was also a humane man, always anxious to discharge his duties firmly, but at the same time to afford a prisoner every degree of consideration and indulgence consistent with the public interest. By this time the reader may be aware how very serious a thing is the conduct, on the part of the Crown, of a prosecution of high treason, in every one of its stages – in the slightest particulars – especially where the great facts of the case are so clear against the prisoner, as to compel his advocate to watch and test every link in the chain fixed around his client. Here, in fact, correlative duties are cast on the opposing parties – to take every possible objection; and to be beforehand prepared for every possible objection, by vigilant exactitude in complying with every legal requisite.
On the eleventh day of December 1839, the Grand Jury returned a true bill for high treason, against John Frost and thirteen of his followers; and on the very next day – viz., Thursday the twelfth, in order to oblige the prisoner, by giving him the longest possible time for availing himself of the important information contained in the indictment, and the jury list– copies of these instruments were delivered to him by the Solicitor of the Treasury. On the ensuing Tuesday, the 17th, he delivered to the prisoner a list of the witnesses; and, the trial having been appointed to take place on the 31st December, five days previously to the latter day – viz., on the 26th December – Sir Frederick Pollock and Mr Kelly were assigned to John Frost, as his counsel, on his application pursuant to the statute to Mr Bellamy, the clerk of the Crown. It is here essential, in order to appreciate the immense importance of the earliest moves in this life-and-death game, to weigh every word in the following brief enactment, under which the above documents were delivered to the prisoner: the humane object of the legislature being to afford him ample time to prepare his defence. – "When any person is indicted for high treason, a list of the witnesses, and of the jury, mentioning the names, profession, and place of abode of the said witnesses and jurors, be also given at the same time that the copy of the indictment is delivered to the party indicted – which copy of the indictment shall be delivered ten days before the trial."10 Thus it will be seen that as the trial was to take place on Tuesday the 31st December, Mr Maule might have delayed delivering these documents to the prisoner till the 20th, and perhaps till the 21st December; but, solely to favour the prisoner, he delivered two of them – viz., the indictment and jury list – so early as the 12th, and the list of witnesses so early as the 17th December. Let us see, by and by, whether anything comes of this, and of the lengthened study, by the prisoner's counsel, of these three documents.
On Tuesday the 31st December 1839, all the fourteen prisoners were arraigned on an indictment consisting of four counts: two for levying war against her Majesty in her realm; a third for compassing to depose the Queen from her royal throne; and the last, for compassing to levy war against the Queen, with intent to compel her to change her measures. To this indictment each of the fourteen prisoners pleaded not guilty; and it is to be particularly observed that they all did so without making any objection on any score. Thus was taken the first move by the Crown counsel, who may possibly, for aught we can at present see, have thereby gained some very great advantage. Let us now conceive the solemnly-exciting scene of the court house at Monmonth, on this memorable trial. Three judges sitting, in their imposing scarlet and ermine vestments, calm and grave; a phalanx of counsel sitting beneath them; the prisoners standing at the bar, on their deliverance, silent as the grave, while the fate-fraught procedure of the court was methodically going on; the spectators crowding every part of the court that they could occupy, and all silent, nothing heard but official voices; while without that court all was excitement – repressed, however, by the stern presence of the civil and military power; detachments of troops at that moment scouring the adjacent hills in quest of malcontents, and preventing any fresh rising of the population.
The first step taken by the prisoner's counsel was to state that they appeared for John Frost alone, and should challenge the jury separately: on which all the other prisoners were removed from the bar, John Frost remaining to take his trial alone. Then came the swearing of the jury – the name of every one, with his calling in life, and place of abiding, being known to the prisoner and his counsel, who objected to the very first step taken by the clerk of the Crown. He had begun to call over the names in their alphabetical order on the panel – the usual course for a great series of years; but Sir Frederick Pollock objected to his doing so, insisting on each juror's name being taken from the ballot-box. The Lord Chief-Justice was about to have overruled the objection; but the Attorney-General intimated that he consented to the course proposed by the prisoner's counsel. Each witness was sworn first on the voir dire, (i. e. dicere verum) as to his qualification, before he was sworn to try. First came a juryman who was challenged peremptorily on the part of the Crown; but the prisoner's counsel, doubtless for very good reasons, wishing him to remain on the jury, insisted, first, that the Crown had no such right – an objection at once overruled; secondly, that the crown was too late, as the juror had actually got the New Testament into his hand to be sworn to try before the Crown challenged. But, on the court's inquiry, it turned out that the witness had himself taken the book, without having been directed to do so by the clerk of the Crown. Under these circumstances, the court decided that the Crown were in time with their challenge – and the juryman was excluded. In this kind of out-skirmishing the whole of the first day was consumed! – a full jury not having been sworn till the evening, when they were "charged" with the prisoner and then dismissed for the night – but with the unpleasant information from the court, that they themselves were thenceforth prisoners (though with every kind of proper indulgence) till the trial was over.
On the next morning, just as the Attorney-General was rising to state the case of the Crown, he was interrupted by Sir Frederick Pollock, and doubtless sufficiently astonished by what fell from him: "I feel myself bound, at the earliest moment – and this is the first opportunity that I have had, – to take an objection which must occur the moment that the first witness is put into the box, – namely, that the prisoner has never had a list of the witnesses, pursuant to the statute, and that therefore no witness can be called!" What could be the meaning of this? inquired the Attorney-General's companions among themselves, with no little anxiety; but he himself somewhat sternly censured the interruption, as premature, (as it certainly was,) and proceeded with his address to the jury. He made a lucid and very temperate statement of the case – drawing attention prominently to the necessity imposed on him of proving that what had been done by Frost and his companions was with a general, and not a particular object, – a public, and not a private purpose. His proposed proof was crushing: but immediately on the Solicitor-General's calling the name of the first witness, Sir Frederick Pollock rose, and required him to prove the delivery of a list of the witnesses, containing the particular one in question, pursuant to the statute. The Attorney-General then called Mr Maule, who proved having done what has already been explained: whereupon Sir Frederick Pollock disclosed the exact objection, which he himself had been the first to detect – that whereas the statute required all these documents, —i. e., the indictment, the jury list, and witness list – to be delivered "at the same time," in the present instance that had not been done, the first two having been delivered on the 12th, and the list of witnesses on the 17th December! This was a very formidable move on the part of the prisoner: who stood at the bar on his deliverance – the jury being bound to convict or acquit according to evidence, and none could be offered them! If that were so, he must of necessity be pronounced not guilty, and be for ever safe. The objection was urged with extreme tenacity and ingenuity by both the prisoner's counsel, who insisted on the statute of Anne receiving a strict literal construction of the words "at the same time," – admitting the benevolent intentions by which Mr Maule had been actuated. The Attorney-General argued very earnestly against this startling objection, denying that it had any validity – asserting that the statute had been substantially complied with; and that the objection, if valid, had been waived; and that it was made too late – viz., not till after the prisoner had pleaded to the indictment, and the jury been charged with the prisoner. The Attorney-General's astute argument, however, was interrupted by the Lord Chief-Justice, stating that the court had a sufficient degree of doubt on the point to reserve it for further consideration by the judges at Westminster, should it become necessary: for, if their objection were valid, it affected every one of the fourteen prisoners awaiting their trial! Then came another desperate attempt of Sir Frederick Pollock, to secure his client the benefit of an acquittal, in the event of the judges ultimately deciding that the objection ought to have been decided in the prisoner's favour at the trial. This, however, the Attorney-General again strongly opposed; and the court cautiously ruled, that, in the event contemplated, the prisoner would be entitled then to the same benefit to which he would have been entitled at the trial – without saying what that would have been. The witness thus provisionally objected to was then admitted; but only to be, at first, sworn on the voir dire, on which a lengthened examination and some argument ensued – each of the judges delivering judgment on the excessively refined and astute objection to the manner in which the witness's place of abode had been described in the list – which was such as that it was just imaginable, and nothing more, that an inquirer might have been misled! The objection was overruled in the case of the first witness; but on the ensuing two witnesses – and most important witnesses – being called, a similar objection was taken, but too successfully, and their evidence, consequently, altogether excluded! – excluded solely on account of the anxious "over-particularity" of the Crown! Nor were these the only witnesses whose testimony was, on such grounds, rendered unavailable to the Crown.
Then came the usual contests, from time to time, as to acts and declarations of third parties, which were offered as evidence against the prisoner, though done and said in his absence, and before and after the actual outbreak – viz., to what extent he had rendered himself liable for the consequences of such acts and declarations, by embarking in a common enterprise, having a common intent with these third parties. The result of such contests was practically this, – The court acted on the rule of law, as rule established, that, in treason and conspiracy, the Crown may prove either the conspiracy, which renders admissible as evidence the acts and declarations of the co-conspirators; or the acts and declarations of the different persons, and so prove the conspiracy. A witness, for instance, said that he was at a party at a Chartists' lodge on the 2d November, when a man named Reed gave them directions to go to Newport on the following night, and explained for what purpose they were to go: but the witness did not see Frost till two days afterwards, when on his march to Newport. The Lord Chief-Justice overruled the objections of Sir F. Pollock and Mr Kelly, and received the evidence which they had attempted to exclude.
A great mass of proof was given during the trial, establishing most satisfactorily the acts and doings of Frost, throughout the progress of the conspiracy, and down to the very moment of the actual attack on the inn, and the Queen's troops stationed in it – a mass of proof on which the attempt to make an impression seemed absurd. There was only one faint ray of hope for the prisoner's counsel, throughout the palpable obscure – that they might be able to escape from the generality and publicity of object attributed to the prisoner, by persuading the jury that the object was a private, temporary, and specific one – viz., to effect the release of one Vincent, a Chartist, then in confinement at Monmouth! To pave the way for this hopeful line of defence, first, an artful turn was sought, in cross-examination, to be given to one of the early witnesses. He swore that he had heard one of those who attacked the inn, exclaim at the time, presenting his gun at one of the special constables at the door, "Surrender yourselves our prisoners;" to which the gallant answer was, "No, never!" On this Mr Kelly very warily cross-examined the witness, with a view of showing that, in the confusion, he could not hear very distinctly, so as to report distinctly, as to precise expressions; that the mob intended merely to rescue Vincent; and that the expressions used must have been, not "Surrender yourselves our prisoners," but "Surrender up our prisoners!" or simply, "Surrender our prisoners," – thus rejecting, from the witness's answer, the single significant word "yourselves." The attempt, however, was wholly ineffectual; but out of two other witnesses were extorted on cross-examination, the following (so to speak) crumbs of comfort: from one – "I have heard Vincent's name mentioned many times; I have heard Williams (one of the leaders of the three bands forming the ten thousand) say that Vincent was a prisoner at Monmouth: the people there liked him very much; the people knew he was in jail. I have heard them speak about him." Another witness said, – "I knew of Vincent's being sent to prison: I believe the Chartists took a great interest in his fate: I do recollect something of dissatisfaction about Vincent's treatment, and about a petition to be drawn up: I recollect people's minds being dissatisfied about it." Another witness, however, said "that at midnight on the Sunday, (the 3d November,) Williams came to his house with a number of armed men: " the witness inquired, "Where are you going?" – "Why do you ask?" said Williams. "Because," answered the witness, "some of the men who were with me have told me, this morning, that they were going to Monmouth, to draw Vincent out of prison." – "No," replied Williams, "we do not attempt it: we are going to give a turn as far as Newport."
The Attorney-General closed his case with the arrest of Frost, heavily armed, and in concealment, on the evening of the day on which he had attacked the inn with his five thousand men; and thus stood the matter, when, after a considerable interval for repose and reflection, courteously conceded by the Lord Chief-Justice, at the implied request of Sir Frederick Pollock, that most able and upright advocate rose to address the jury for the defence. Judging from the specimens afforded us by Mr Townsend, Sir Frederick Pollock's address appears to have been pervaded by a strain of dignified and earnest eloquence, and also characterised by a candour in dealing with facts which was in the highest degree honourable to him, and also equally advantageous to the prisoner, on whose behalf such conduct was calculated to conciliate both the judges and the jury. His line of defence was, that, admitting enormous indiscretion on the part of Frost in assembling so vast a body of men, and marching and appearing with them as he did at Newport, there was no satisfactory evidence of his having done so with a treasonable purpose. He had been guilty of a heinous misdemeanour; but the treasonable declarations and exclamations put into his and their mouths, in order to give the affair a treasonable complexion, had been either misunderstood or perverted by the witnesses. The sole object of Frost and his friends was the release of Vincent; that they had never dreamed of taking, or attacking the town of Newport – least of all, as an act of general rebellion; that all they had meant was to take a "turn" as far as Newport, to get Vincent out of prison; and that "that was the true character of the whole proceedings;" that Frost did not know that the military were in the inn; and that, the instant they had become visible, and had fired, the crowd succumbed, threw down their arms, and ran away —i. e. they did this "the very moment there was any prospect of what they were doing being construed into treason." That Frost could not have contemplated treason, and throwing the whole country into confusion, would be evidenced by proof, and his having made provision for the payment of a bill of exchange, and actually paying it on the very Monday on which the outbreak occurred. Sir Frederick Pollock properly insisted on the burthen of proving treason lying on the Crown, and not of disproof on the prisoner. Then were called one or two witnesses, with a view to showing expressions of the crowd that they had come to Newport in quest of their prisoners who were there; but the evidence proved ridiculously insufficient and contradictory. Then was read, with the Attorney-General's consent, a letter of Frost's in the previous September, to one of the visiting magistrates of the gaol of Monmouth, requesting some relaxation of the prison discipline to which Vincent and other prisoners were subject; and it appeared, also, that a similar application had been made to the Lord-Lieutenant of the county. Then was proved Frost's having taken up his acceptance on the 4th November; and his character for humanity as specially instanced in his having protected Lord Granville Somerset from personal violence, during the Reform riots of 1832. Finally was called a witness, with the view of negativing the design imputed to Frost of preventing the Welsh mail from going to Birmingham, by showing the absurdity of that course, since a new and different mail started from Bristol to Birmingham, and not the same coach which had come from Newport. But to this witness were put the following significant, and probably unsuspected, questions: —
"Attorney-General.– You took an interest, I suppose, in Vincent? —A. I did so.
"Attorney-General.– You had not been told that there was to be any meeting for Vincent on the 4th of November, had you? —A. No.
"Attorney-General.– You, living at Newport, can tell us that there was no notice by placard, or in any other way, of a meeting to be held on the 4th November? —A. I never saw any.
"Attorney-General.—Nor heard of any?—A. No."
Such was the meagre case in behalf of the prisoner in point of evidence. And at its close, his second counsel, Mr Kelly, rose to address the jury on his behalf – a privilege accorded to no prisoner, except one tried on a charge of high treason. We shall present the reader with an extract from the opening passage in Mr Kelly's address, inasmuch as it is highly characteristic of that eminent counsellor's style of advocacy – of his imposing display of fervent confidence in his case – his terse and nervous expression, and the clearness and precision of his reasoning. We have some ground for believing that the following is exactly what fell from his lips: —