Various
Blackwood's Edinburgh Magazine, Vol. 68, No 420, October 1850
"The Attorney-General, in his opening, seemed to anticipate that we might deviate from the straight and honourable course before us, in defending the prisoner, into something like an attempt to induce you to depart from the strict letter of the law. So far from this, it is in the law, in the strict undeviating performance of the law, that I place my hope, my only trust. It is my prayer, therefore, that you should follow it; that you should be guided and governed by it; that you should attend and adhere to the law, and to the law alone; because I feel that, by that law, I shall prove to you, clearly and satisfactorily, that the prisoner, whatever may have been his misconduct in other respects, however high the crimes and misdemeanours for which in another form he might have been indicted or punished – I feel that, by the law of high treason, he is as guiltless as any one of you, whose duty, I hope, it will soon be so to pronounce him. Gentlemen, if the prisoner at the bar be at this moment in any jeopardy or danger, it is from the law not prevailing, or not being clearly and perfectly understood. It is because the facts, which are in evidence before you, undoubtedly disclose a case of guilt against him; because they do prove that he has committed a great and serious violation of the law; because he has subjected himself to indictment and to punishment, that the danger exists – a danger from which it is for me, by all the humble efforts I can command, to protect him – that you, finding that he has offended against the justice of the country, should condemn him, not for the misdemeanour which he has really committed, but for the great and deadly crime with which he is charged by this indictment. I therefore, Gentlemen, beseech your calm and patient attention, while I endeavour as shortly, as concisely, and, I will venture to add, as fairly and candidly as I can, to lay before you, subject to the correction of their Lordships, the law, as it affects this high and serious charge. And if I should be fortunate enough to do so, I undertake then to satisfy you – to convince the most doubting among you, if there be any more doubting than the rest, when I shall refer you to the testimony of the witnesses, – that this charge is not only not proved, but that it is absolutely and totally disproved, even by the evidence for the prosecution. The question here is, – not whether a great and alarming riot has been committed; the question is, not whether blood has been shed, whether crimes, which are, as they ought to be, punishable by law, have been perpetrated by many who may be the subjects of this indictment; but the question is, whether the prisoner at the bar has, by competent legal proof, been proved, beyond all reasonable doubt in the mind of any one of you, to have levied war against Her Majesty, with the treasonable intent which is stated in this indictment? The Crown must satisfy you that the prisoner at the bar has levied war; that he has levied war against Her Majesty – that is, that he has conducted these armed multitudes, and committed, if he has committed, outrages with them, and concerted with them, or engaged them, to commit them; and not merely that he has done all these acts, but that he has done them against the Queen, that he has levied war against the Queen and her Government. And then, further, it must be proved to you that that was done with the intent, with the design, which is stated in this indictment." – (I. p. 52, 53.)
Mr Kelly's speech was long, elaborate, eloquent, and most ingenious – adhering closely to the line of defence taken by Sir Frederick Pollock – pressing on the jury in every possible way, with many varied illustrations, the improbability of Frost having contemplated the rebellious objects imputed to him, and the alleged certainty that his only view had been – the rescue of Vincent. He vehemently assailed the credibility of those witnesses who had given the strongest evidence against Frost; and concluded with a most impassioned appeal to the feelings of the jury. When he had concluded, the Lord Chief-Justice accorded still another privilege to Frost – viz., that of himself then addressing the jury, after both his counsel had done so; to which Frost prudently replied – "My Lord, I am so well satisfied with what my counsel have said, that I decline saying anything upon this occasion."11
The Solicitor-General then rose to reply on the part of the Crown; and if any one inexperienced in forensic contests were incredulous as to the potency of the last word (from competent lips) in any case, civil or criminal, let him read the outline of this reply, with the copious specimens of it, given with much judgment by Mr Townsend. It is true that Sir Thomas Wilde's case was in itself crushing, but his dealing with it made that crushing character fearfully clear to the plainest capacity. Its opening passages seem tinctured by some sternness of allusion to the concluding topics of Mr Kelly's address; but the remainder of the reply is characterised by mingled moderation and power; by irresistible closeness and cogency of argument, and by extraordinary skill in dealing with facts, in combining and contrasting them, and pointing out a significancy lurking in them, which the prisoner's counsel had possibly not chosen to see, or skilfully striven to conceal. Our limits restrict us to one or two samples of the present Lord Chancellor's mode of advocacy when at the bar. After explaining that it was the real object contemplated by the prisoner – viz., to raise, rebellion – with which the jury had to deal, the Solicitor-General thus pithily disposed of all arguments which had been drawn from the prisoner's want of power to do all that he intended: —
"It is also immaterial to this Case whether or not he had the power to do all he intended. We need not talk of punishing successful rebellion – it is unsuccessful rebellion that comes under the cognisance of the law. I cannot restrain the expression of some surprise at the course of argument that was taken by the learned counsel who last addressed you. His course of argument was this: when the prisoner was interrupted in what he was doing, 'Look and see what he has done;' where he has accomplished his purpose, 'Do not believe the witnesses.' The party having been dispersed by the soldiers, the learned gentleman says, 'see if they went to the post-office; see if they went to the bridge; see if they went to other places' – he knowing that they were stopped before they reached those places; 'but as to marching there with arms to take the town, that I dispose of by asking you not to believe the witnesses; so that, as regards what was prevented, I ask you to see what was done; and as regards what was done, I ask you to disbelieve the witnesses, and there is an end of the charge.'" – (I. p. 75.)
This single paragraph annihilated a third of the case set up on behalf of Frost; as did the following a second third: —
"They could not have raised these men with a view to relieve the prisoners at the Westgate, because at the time they collected on the mountain they had not been taken. But had it any relation to Vincent? What is their intention? We have been told again and again that Mr Frost must not be supposed likely to do absurd things; that he is a man of the world and a man of intelligence. What then, gentlemen, do you think of an attempt to induce the Monmouthshire magistrates to relax the prison discipline in favour of a person who has been convicted of sedition, or seditious libel, or something of that sort, by marching into Newport with ten thousand men armed? What do you think of a man of the world resorting to that mode of inducing the magistrates to relax in favour of a prisoner? Is Mr Frost a man of intelligence? Is he a man of the world? Suppose he had been the worst foe that Vincent ever had, suppose that he had desired to procure additional restrictions to be put upon him, and had wished that he should sustain the last hour of the sentence which had been pronounced upon him, could he have resorted to a more maliciously effective mode than by showing that those who were connected with Vincent were persons so little acquainted with their duty, so little obedient to the law, so little to be depended upon for their peaceable conduct, as that they would march at that hour of the night into a town, alarming and frightening every body?" – (I. p. 79.)
Again: —
"Gentlemen, will you judge of the criminal intentions of persons engaged in an insurrection by the probability of their success? If you do, you will judge of a mob by a rule that never was found correct yet. They always imagine – and they would not begin if they did not imagine, though they always imagine wrong, but they never will learn wisdom – they always imagine that they can accomplish more than they can; of course they begin, not with the idea of fastening a halter round their necks, but with the idea that they shall succeed, and by their success escape. With those thousands of men (you will see as I pass on what the number of the soldiers were,) was it an unnatural thing that, coming at between one and two o'clock in the morning, they should surprise the poor-house; that the soldiers, not being aware that they were coming, might not be prepared – might be taken by surprise – might be either overcome or murdered before they could put themselves in a condition to defend themselves?
"Are their sayings inconsistent? What conspiracy ever was consistent? You would indeed give the most perfect freedom to conspiracy, rebellion, and treason, if you disbelieved witnesses coming to prove declarations inconsistent if made at the same time, though not inconsistent when made at different times. They may at first think the soldiers to be Chartists and their friends, and, in the next moment, talk of attacking them in their barracks. But will you give a carte blanche to conspirators and traitors by saying, that if witnesses prove inconsistent declarations, they are not to be believed? It is not, gentlemen, the inconsistency of the witnesses, but of those engaged in transactions, the conduct and management of which must vary from hour to hour according as circumstances arise; and that which a man may contemplate one minute, may the following minute or the next hour be inconsistent with the views that had prevailed arising out of the then existing circumstances." – (I. p. 89.)
The circumstance of Frost's having been found with the loaded pistols, and not having attempted to use them, is thus significantly disposed of: —
"Give him the benefit of the circumstance that he did not use the three loaded pistols which he had about him. But I think, unfortunately, that they speak much more strongly as indicating violent intentions when those pistols were provided, than they speak peaceable intentions when he was apprehended." – (I. p. 24.)
There has been no counsel at the English bar, in modern times, whose reply was more dreaded by an opponent than Sir Thomas Wilde; and that reply, in Frost's case, abundantly shows how well founded was that apprehension.
Thus, then, the counsel on both sides having played out their parts in the case, it stood awaiting the intervention of the Lord Chief-Justice – the very model of judicial excellence. Tranquil, grave, patient; exact, ready, profound in legal knowledge, and of perfect impartiality – all these high qualities and qualifications were exhibited by him in his luminous and masterly summing-up on this occasion. In order to give all due weight to the sole substantial suggestion offered on behalf of the prisoner —i. e., that his object had been the liberation of Vincent – the Lord Chief-Justice read to the jury the following important passage from that great authority, Sir Matthew Hale – "If men levy war to break prisons, to deliver one or more particular persons out of prison, this was ruled, on advice of the judges, to be not high treason, but only a great riot; but if it was to break prisons, or deliver persons generally out of prison, this is treason."12 Having taken at once a minute and comprehensive view of the evidence, he left the following as the exact question for their determination, – "Whether it was Frost's object, by the terror which bodies of armed men would inspire, to seize and keep possession of the town of Newport, making this a beginning of an extensive rebellion, which would be high treason; or whether he had no more in view than to effect, by the display of physical force, the amelioration of the condition of Vincent and his companions in Monmouth jail, if not their liberation, which would be a dangerous misdemeanour only; and the jury were to look at the evidence with all possible candour and fairness, and see if the Crown had conclusively disproved this limited object and design."13 We conceive that neither Frost nor any one of his ten thousand dupes, on that "day of dupes" which led to this inquiry, could have taken objection to this mode of submitting the all-critical question to his jury – a jury of his peers, with the selection of whom he himself had had as much concern as the Crown.
That jury retired from court for half-an-hour, and then returned, amidst the solemn excited silence of the court – crowded to suffocation – with the fatal verdict, "Guilty;" adding, "My lords, we wish to recommend the prisoner to the merciful consideration of the court." Sentence was not immediately passed upon him. He was removed from court; and on its re-assembling on the ensuing morning, Zephaniah Williams was placed at the bar, tried, and in due course found guilty; on which William Jones was in like manner arraigned, tried, and found guilty; each being recommended by the jury to mercy. Scared by this result, five of the ringleaders resolved to throw themselves on the mercy of the Crown, withdrawing their pleas of not guilty, and pleading guilty – it having been intimated that the sentence of death should be commuted into transportation for life. The Attorney-General thought it expedient, in the case of the remaining four prisoners, who were less deeply implicated, to allow a verdict of not guilty to be recorded.
On the 16th January, Frost, Williams, and Jones were brought up to the bar to receive sentence of death, which the Lord Chief-Justice prefaced by a very solemn address, listened to in breathless silence. An imposing scene of judicial solemnity and terror, indeed, the court at that agitating moment exhibited. Without were strong detachments of soldiery, foot and horse, guarding the public peace: within were an anxious auditory, commanded to keep silence under pain of fine and imprisonment, while sentence of death was being passed upon the prisoners. There were, in the midst of the throng, two groups awfully contrasted in character and position – the three prisoners, standing pale and subdued; and, sitting opposite, the three judges, each wearing his black cap; while the following heart-sickening words fell from the lips of the Lord Chief-Justice: —
"And now nothing more remains than the duty imposed upon the court – to all of us a most painful duty – to declare the last SENTENCE OF THE LAW; which is that you, John Frost, and you, Zephaniah Williams, and you, William Jones, be taken hence to the place whence you came, and be thence drawn on a hurdle to the place of execution, and that each of you be there hanged by the neck until you be dead; and that afterwards the head of each of you shall be severed from his body, and the body of each, divided into four quarters, shall be disposed of, as her majesty shall think fit. And may Almighty God have mercy on your souls!"
Whether the words placed in italics should ever again be pronounced on such an occasion, barbarously prescribing a revolting outrage on the dead, which it is known, at the time, cannot be perpetrated in these days of enlightened humanity, is a point which cannot admit of debate. The practice ought forthwith to be abolished, and by statute, if such be necessary.
Under the mortal pressure of this capital sentence remained these three unhappy and misguided men, from the 16th till the 28th of January. On the 25th, an elaborate argument was had at Westminster before the fifteen judges, which lasted till the 28th, on a case framed by Lord Chief-Justice Tindal for their opinion, on the point which had been raised at the trial by Sir Frederick Pollock. The Chief-Justice submitted these two questions for consideration, – "First, whether the service of the list of witnesses was a good service, under the statute 7 Anne, c. 21, § 11; secondly, whether, at all events, the objection was taken in due time." There was a great array of counsel on both sides; but the argument was conducted by the Attorney-General alone, on behalf of the Crown; and by Sir Frederick Pollock, Sir William Follett, and Mr Kelly on behalf of the prisoners. The utmost possible ingenuity was displayed on both sides; and with such effect, that at the close of the argument the Lord Chief-Justice of the Common Pleas wrote a letter to the Secretary of State for the Home Department, (the Marquis of Normanby,) announcing the following somewhat perplexing result, – that, "first, a majority of the Judges, in the proportion Of NINE to SIX, were of opinion that the delivery of the list of witnesses was NOT a good delivery in point of law:
"But, secondly, a majority of the Judges, in the proportion of nine to six, are of opinion that the OBJECTION to the delivery of the list of witnesses was not taken in due time.
"All the Judges agreed, that if the objection had been made in time, the effect of it would have been a postponement of the trial, in order to give time for a proper delivery of the list."
The Ayes on this occasion were —
Justices Littledale, Patteson, Williams, Coleridge, Colins, Erskine; Barons Parke, Alderson, Rolfe.
The Noes —
Lord Chief-Justice Denman, Lord Chief-Justice Tindal, Lord Chief-Baron Abinger; Justices Bosanquet and Maule, and Baron Gurney.
Those last (the Noes) decided also that the objection had not been taken in time; and three of the former class, (the Ayes,) viz. Baron Alderson, Baron Rolfe, and Justice Coleridge, concurred in that decision.14
Here was a question for the Executive to decide! A capital conviction for high treason, with a decision of the majority of the Judges of the land, that a statutory requisition as to the period for delivery of a list of the witnesses had not been exactly complied with, but that the prisoner did not make the objection till the time had gone by for making it; and that, had he made it in time, the utmost effect would have been to cause a postponement of the trial for a few days. The prisoner's objection was avowedly strictissimi juris; and he did not affect to show that he had suffered the slightest detriment from the over-anxious kindness of the Crown solicitor. That, under these circumstances, the lives of the three traitors were absolutely at the mercy of the Ministry, is indisputable; and no one, we conceive, could have censured them, if they had allowed the capital sentence to be carried into effect. They inclined, however, to the merciful exercise of their anxious discretion; and the capital sentence was remitted, on the condition of the three prisoners being transported for the term of their natural lives. They have now been ten years at the Antipodes; and how many times, during that lengthened period of bitter, dishonoured existence, they have cursed their own folly and crime, who can tell?
Have they ever appreciated the skill and vigilance with which they were defended? It is true that this one chance objection – which it is wonderful should have occurred to any one at all – was ultimately pronounced, but only by a majority of the Judges after lengthened debate, to have been taken too late; but if it had not occurred to the vigilant advocate when it did – if no one had taken it at any time – would not the three traitors have been executed? Unquestionably: public justice, the public safety required it. Whether Sir Frederick Pollock purposely delayed making the objection till the moment when he did, (and the Attorney-General insinuated, before the fifteen Judges, that such was the case,15) thinking that course more advantageous to the prisoners, or whether the objection had not, in fact, occurred to him till it was too late, we cannot at present say. This much, however, we can say in conclusion, that we are very much indebted to the late Mr Townsend for having enabled us to present this entertainment – for such we hope it has proved – to our readers; who may hereafter look with great interest on a great trial, especially if they have the opportunity of witnessing it. They may then appreciate the exquisite anxieties and responsibilities imposed on those concerned in conducting it – the difficulties with which they have to contend on the spot, without time for consideration, though life itself be the stake played for. They will also, probably, be of the opinion, that in the great game at Monmouth all the players played their parts well – may we not say admirably? – that the uttermost justice was done on both sides. Two practical deductions from the whole may yet be made: first, have a look-out, gentlemen prosecutors, in taking every single step of your course, however apparently unimportant at the time it may seem to you; bearing in mind that, in proportion to the desperate exigencies of the defence, will be the piercing scrutiny to which every formality will be subjected; so that a blot may be hit which might easily have been avoided, but, when hit, is fatal. Secondly, in your turn, gentlemen counsel, be encouraged by the result of this interesting and instructive trial, to watch every single step of your opponents – even those in which error, omission, or miscarriage is least likely – with sleepless vigilance, and be prompt in action. Thus much for the trial of John Frost.