BLACKWOOD'S
EDINBURGH MAGAZINE.
NO. CCCCXX. OCTOBER, 1850. VOL. LXVIII.
CONTENTS.
MODERN STATE TRIALS. PART I., 373
MY NOVEL; OR, VARIETIES IN ENGLISH LIFE. PART II., 393
MILITARY LIFE IN NORTH AFRICA, 415
THE GREEN HAND--A "SHORT" YARN. A WIND-UP, 433
THE FRENCH WARS OF RELIGION, 456
A WILD-FLOWER GARLAND. BY DELTA, 471
THE MASQUERADE OF FREEDOM, 475
DIES BOREALES. NO. VIII.--CHRISTOPHER UNDER CANVASS, 479
* * * * *
EDINBURGH:
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PRINTED BY WILLIAM BLACKWOOD AND SONS, EDINBURGH.
BLACKWOOD'S
EDINBURGH MAGAZINE.
NO. CCCCXX. OCTOBER, 1850. VOL. LXVIII.
MODERN STATE TRIALS.[1]
PART I.
The idea of this work is happily conceived, and carried into effect,
in the two volumes before us, with no little judgment and ability. The
subject is one interesting, useful, and important; and the author was
in many respects well qualified to deal with it by his talents, his
accomplishments, his professional acquirements, and his experienced
observation. It will be seen that we speak of the author, and of his
work, in different tenses; and there is a melancholy significance in
the distinction. Within a very few days of his sending to us these two
volumes, he died, unexpectedly, in the flower of his age, and just as
he had attained an honour which he had long coveted--that of being
raised to the rank of Queen's Counsel. On the first day of last Easter
term, he presented himself in each of the courts at Westminster, in his
"silk" gown, exchanging the customary obeisances with the Judges, the
Queen's Counsel, and the great body of his brethren behind the bar,
on being formally called by the Lord Chief Justice "to take his seat
within the bar, Her Majesty having been pleased to appoint him one of
Her Majesty's Counsel." He looked pleasurably excited: alas, how little
anticipating that the last day of that same term would see him stripped
of his long-coveted insignia, and clothed in the dismal vesture of the
grave! For on that day he died, after a brief but very severe illness,
in his forty-sixth year. A serious attack of rheumatic fever, several
years before, had permanently impaired his physical energies, though
not to such an extent as to prevent the exercise of his profession.
His practice, till latterly, had been chiefly at the Cheshire and
Manchester sessions, from which he gradually rose into considerable
business, both civil and criminal, on the North Wales circuit. On being
raised to his briefly-held rank, the prospect of a successful career
opened before him; for he knew his profession well, as those were aware
who were able and disposed to push him forward. During Easter term he
was engaged before a committee of the House of Commons, to conduct a
case of some importance. This was a lucrative branch of practice, which
he was naturally eager to cultivate. Fatigue, anxiety, and excitement
induced the return of an old complaint, accompanied by new and somewhat
startling symptoms; but though utterly unfit for business, he could
not be restrained from attending the committee room, though it was
necessary to carry him in a chair up the long flight of steps leading
to the corridor in the new House. He was soon, however, obliged to
return as he had gone. The palsying hand of Death had touched the
aspiring lawyer! After much suffering, he expired on the 8th of May,
the last day of Easter term, and on the 13th was buried in the vaults
of Lincoln's Inn, of which he had only a few days previously been
elected a Bencher! He was a member of Queen's College, Oxford, where he
graduated (we believe with honours) in 1824; was called to the bar in
1828; and elected Recorder of Macclesfield in 1833.--As a speaker he
was correct and fluent, though not forcible; as an advocate, judicious
and successful. He was a man of classical tastes, extensively read
in literature, and exceedingly familiar with political history and
constitutional law. What he knew he could use readily and effectively,
both as a writer and a speaker. He was very industrious with his pen
during every interval between his professional engagements; and has
left behind him, independently of his contributions to periodical
literature, three works--the _History of the House of Commons from
1688 to 1832_; the _Lives of Twelve Eminent Judges_, and the work now
before us. The first of these was published in 1843-4, in two volumes
octavo. The author's professed object was to present "a popular history
of the House of Commons, with biographical notices of those members
who have been most distinguished in its annals; and describing the
changes in its internal economy, powers, and privileges," during the
space of a hundred and forty-four years elapsing between two memorable
periods--the "noble introduction" to Parliamentary Records, "afforded
by the Convention Parliament of 1688," and the "eventful close"
witnessed in the second Parliament of William IV., which passed "the
Reform Bill." This space he subdivided into three distinguishing eras:--
"The _first_ includes a space of thirty-nine years--from
the abdication of James to the death of George I.
in 1727--characterised by master spirits, critical
events, and stirring debate. The _second_ era--sort of
mezzo-termino--comprehends the reign of George II., when men
in office were corrupt, and public morals low, and the general
topics of discourse resembled parish vestry discussions, but
still a prosperous reign--the sound common-sense of Walpole
promoting, even by inglorious acts, the national welfare, and
Chatham's genius rescuing the age from mediocrity.
"The regular publication of the debates, and troubles in
America, usher in the _last_ and most glorious epoch,--the days
of North and Burke--of Pitt and Fox--of Windham and Canning--of
Tierney, and Brougham, and Peel,--illustrated by oratory
enduring as the language, and with memories of statesmen that
can never die."
Mr Townsend's second work was published about four years
afterwards--viz., in 1848--also in two volumes, and entitled _Lives
of Twelve Eminent Judges of the Last and Present Century_. These
were--Lord Alvanley, Mr Justice Buller, Lord Eldon, Lord Ellenborough,
Lord Erskine, Sir Vicary Gibbs, Sir William Grant, Lord Kenyon, Lord
Loughborough, Lord Redesdale, Lord Stowell, and Lord Tenterden.
This work consisted of memoirs, which the author had previously
published in the _Law Magazine_, where they had attracted considerable
attention from the profession; as they contained many interesting
and entertaining anecdotes, and information not easily attainable
elsewhere.[2] Both of these works are of an entertaining character.
They are written in an easy, flowing style--occasionally, however,
somewhat loose and gossiping. It must be owned that the author's
_forte_ does not lie in the delineation of character, either moral or
intellectual. If he really possessed a quick and searching insight into
it, he would seem to have felt a greater pleasure in grouping about
each individual who was the subject of his pencil the general incidents
of his position, than in penetrating his idiosyncrasy, and detecting
the operation of those incidents upon it. He does not conceive
distinctly of _his man_, keeping his eye steadily upon him, with a
view to the development and exhibition of character; but is apt, if we
may be allowed so to speak, to lose him in his life. Still the work is
decidedly an acquisition to popular and professional literature, and,
equally with its predecessor, evidences the mild and candid temper and
character of the author. Thus much we thought it only fair to premise,
in justice to the memory of an amiable and accomplished member of the
English bar, and a man of letters; one, too, who in his political
opinions was a staunch and consistent upholder of those to which Maga
has ever been devoted. In no instance, however--in neither of the two
works at which we have been thus glancing in passing, nor in that now
lying before us--did Mr Townsend suffer his political opinions to bias
his judgment, or betray him into the faintest semblance of partiality
or injustice.
It is time now to direct attention to the last work of Mr
Townsend--which he barely lived to see published--his _Modern State
Trials_, spread over two goodly octavo volumes, containing nearly
eleven hundred pages, and these, too, pretty closely printed. Upon
this work much thought and labour have evidently been bestowed in
the collection of his materials, and dealing with them, as in the
volumes before us, in such a manner as to render the product at once
interesting and instructive to both general and professional readers.
It is no slight matter to make one's-self thoroughly master of a great
case, in all its bearings; to seize its true governing characteristics;
to select, condense, and arrange facts and incidents; to assign to
every actor, whether judge, jury, witness, or counsel, his proper
proportion and position; and all this with a view to interesting and
instructing widely different classes of readers--and those, again,
general and professional. To do all this effectually, requires
powerful talents, much knowledge of life and character, practical
acquaintance with the law of the country, a sound judgment, and a vivid
imagination. There is scarcely any point of view in which a great trial
will not appear deeply interesting to a competent observer, watching
how each individual plays his part in the agitating drama. Whether
the judge holds the sacred scales even; whether he sees clearly and
acts promptly, calmly, resolutely, in detecting fallacy, in order
to shield an unsophisticated jury from its subtle and deleterious
agency; whether, for this purpose, his intellect and his knowledge
are superior, equal, or inferior to those of the advocates pleading
before him. How those advocates conduct themselves, intellectually
and morally; whether they be clear-headed, acute, ready, learned--or
cloudy, obtuse, superficial, and ignorant; whether evenly or over
matched; whether they play the gentleman or the scoundrel; whether
they will, however difficult the task, nobly recognise the obligations
of truth and honour, or villanously disregard them, to secure a
paltry triumph in defeating justice! How the witnesses discharge
their momentous duties; whether constantly mindful of their oath,
or forgetful of it, or wilfully disregarding it, from hostility or
partiality to the prisoner, or any other wicked motive. Whether the
judge, or the advocates, are equal to the discomfiture of a wicked
witness. How the jury are conducting themselves--whether with watchful
intelligence, or stolid listlessness. How the prisoner, standing in
the midst of all these--with life, with honour, character, liberty,
everything at stake--and depending on the word which one of that jury
will utter--how _he_ is demeaning himself, knowing, as he does, the
truth or falsehood of the charge on which he is being tried; what he is
thinking of the exertions of his counsel, of the temper and spirit of
the witnesses, of the jury, of the judge; whether he adverts at all to
the spectators around him, and the feelings by which they are animated
towards him; whether he is aware of, or appreciates, the true strain
and pressure of the case--the sudden chances and perils occurring in
its progress.
How striking and instructive to observe the abstract rules of justice
brought to bear, with equal readiness and precision, upon ordinary
and extraordinary combinations of circumstances!--to witness the
dead letter of the law become animated with potent vitality for the
regulation of human affairs!
Again, it has often occurred to us that there is another point of view
from which important trials--nay, almost any trial--may be contemplated
with lively interest by a logical observer, with reference to _the use
made of facts_ by judicial and forensic intellect. How little even the
acutest layman could have anticipated such dealing with facts as that
which he here beholds; how he must appreciate the practised, watchful
art with which the slightest circumstance is seized hold of, and in
due time so combined with others with which it seemed to have no
conceivable connexion, as to justify conclusions exactly the reverse
of those which had till then seemed inevitable! What totally different
aspects the same facts may be made to wear by different dealers with
them, having different objects in view! By their different arrangement
and combination, what _unexpected_ inferences may be drawn from the
self-same facts, and even when similarly arranged and combined! How
exciting to see a defence constructed by experienced astuteness and
eloquence out of the slightest materials--out of a hopeless case--in
the teeth of one overpowering for the prosecution! The desperate
determination, the exquisite subtlety, the consummate judgment, often
exhibited on such occasions by eminent advocates--struggling, too, at
once with their own sense of right and wrong, and the desire to do
their utmost for one who has intrusted his all to them--conscious,
too, that though a jury of twelve plain common-sense people may be
unable to see through the fallacies which are presented to them, it
will doubtless be very far otherwise with one who has to follow,
who has the last word! and with that last word may at once lay bare
the sophistries of forensic effrontery, and perhaps rebuke him who
attempted to trifle with and mislead the understandings of those
so solemnly sworn to give a just and true verdict according to the
evidence. "But what is one to do?" exclaims the anxious advocate. "How
am I to defend yonder trembling being who has selected me to stand
between him and--the scaffold, it may be--if I am to play the judge,
and not the advocate; to yield pusillanimously to an array of fearfully
plain facts, and make no attempt to square them with the hypothesis
of my client's innocence, or persuade a jury that they are--whatever
my own secret opinion--pregnant with too much doubt to warrant a
verdict of guilty?" Only one who has been placed in the situation can
conceive the faintest idea of what is endured on such occasions by the
sensitive and conscientious advocate, who is called upon in desperate
emergencies--in moments of intense eagerness and anxiety--the spasms,
as it were, of which are _publicly_ exhibited, and before gifted and
critical rivals and merciless public censors, to see and _observe_
the delicate but decisive line of right--of duty; to maintain at once
the character of the zealous, effective advocate, and the Christian
gentleman. If sufficient allowances were made for persons placed in
such circumstances of serious embarrassment and responsibility, less
uncharitable judgments would be passed on the manner in which advocates
exercise their functions than are sometimes seen; judgments formed and
pronounced, too, in the closet--by those speaking after the event--calm
and undisturbed by anxieties and agitation, which have probably _never
been personally experienced_. This topic, however, we shall hereafter
treat more at large, in giving to the volumes before us that extended
examination which is at present contemplated. They contain a series
of trials of undoubted public interest and importance. They have been
selected upon the whole judiciously, with a view to the end which the
author had proposed to himself; though the propriety of the title
which he has chosen--_i. e._ "Modern _State_ Trials"--is not at first
sight apparent. The idea conveyed by these words is, trials directly
affecting _the state_, political prosecutions in respect of political
offences. It is difficult to bring trials for murder, duelling,
forgery, abduction, libel, blasphemy, and conspiracy, under this
category; and this Mr Townsend felt. Such, nevertheless, constitute a
large proportion of the trials contained in these volumes, and are,
in our opinion, also those of most popular interest, and worthiest of
being dealt with, as it was Mr Townsend's expressed intention to deal
with them.
The "trials" contained in the volumes before us are fifteen in number,
of which only four, or at most five, (Mr Townsend seems to have
thought six,) have any pretensions to be designated "_State_ trials."
These five are--John Frost, Edward Oxford, and Smith O'Brien for
high treason; Daniel O'Connell, and eight others, for a treasonable
conspiracy; and Charles Pinney, for alleged neglect of his duty as
mayor of Bristol, during the fiery and bloody "Reform Riots," as the
were called, in that place, in October 1831. The remaining ten trials
consist of two for duelling--the late James Stuart for killing Sir
Alexander Boswell, and the Earl of Cardigan for shooting Captain
Tucket; three for murder, (in addition to James Stuart, who was tried
for the _murder_ of Sir Alexander Boswell)--viz. Conrvoisier for
the murder of Lord William Russell; M'Naughton for the murder of Mr
Drummond; Hunter and others for conspiracy and the murder of John
Smith, the Glasgow cotton-spinner, in 1837; Alexander (the titular
Earl of Stirling) for forgery; Lord Cochrane, and seven others, for
a conspiracy to raise the funds; the Wakefields for conspiracy,
and abduction of an heiress; John Ambrose Williams for a libel on
the Durham clergy; and Mr John Moxon, for blasphemy, in publishing
the poems of Percy Bysshe Shelley. It will be observed that all
these are _criminal_ trials, and occurred in England, Scotland, and
Ireland; affording thus a favourable opportunity for comparing the
different methods of proceeding in their respective courts, and the
characteristics of their respective judges and advocates. The English
trials are ten, the Scottish three, and the Irish two in number:
and whether they are precisely those which could have been most
advantageously selected, it were needless, for present purposes, to
inquire. Mr Townsend made his choice, and thus generally states his
objects and intentions:--
"The present edition of _Modern State Trials_ is meant to
include those of the most general interest and importance which
have occurred during the last thirty years. None are inserted
in these volumes which have been previously comprised in any
collection; but the editor regrets want of space, which compels
him to omit several not uninstructive. In making a selection,
he has endeavoured to present a faithful, but abridged, report
of such legal proceedings as would be most likely to command
the attention of all members of the community, and to be read
by them with pleasure and profit. This appears to be the
popular description of the term "State Trials," in which Mr
Evelyn and Mr Hargreave acquiesced, or they would not have
included convictions for witchcraft, and the prosecution of
Elizabeth Canning for perjury, in their collection. Were the
definition restricted to political offences merely, the work,
however logically correct, would be wanting in spirit and
variety."--(Introd. vol. i. p. 5.)
After stating that no technical objection can be raised to those of the
above trials which immediately affect the State, he observes, that,
"for the propriety of inserting the rest under the same title, a just
apology may be made." The trial of the Earl of Cardigan, before the
House of Lords, is represented as interesting, from the rank of the
accused and from the rarity of the trial, as being the first time that
duelling was attempted to be brought within a recent statute, (1 Vict.
c. 85) enacting that the shooting at a person, not with premeditated
malice, but deliberately, and causing a bodily injury dangerous to
life, should be a capital offence; and that whoever should shoot any
person with intent to commit murder, or to do some grievous bodily
harm, should, though no bodily harm were inflicted, be guilty of
_felony_, and liable to transportation or imprisonment. The social
position of the titular Earl of Stirling, and the extraordinary nature
of the evidence, are said to justify the insertion of _his_ trial;
while, "in the records of criminal jurisprudence, there occur few
proceedings of more deep and painful interest than the prosecution of
Lord Cochrane, for Conspiracy to commit a fraud on the Stock Exchange."
The two cases of Courvoisier and M'Naughton respectively "involve
topics of absorbing interest at the period of the occurrence, and of
enduring interest to all time: in the one being involved the rights
and duties, the privileges and immunities of counsel for prisoners; in
the other, the fearful question of responsibility for crime--how far
moral insanity alone may exonerate the alleged subject of it from the
temporal consequences of his guilt." This latter topic is also involved
in Oxford's case. The trials of Mr Stuart for killing Sir Alexander
Boswell, and of Mr Moxon for blasphemy, are inserted for one and the
same reason--namely, "a desire to embalm the very beautiful speeches of
Lord Cockburn, Lord Jeffrey, and Mr Justice Talfourd." As to the trial
of Ambrose Williams, it is inserted on account of the celebrated speech
in defence by Lord Brougham--"one of the most vivid specimens extant,
in either ancient or modern literature, of keen irony, bitter sarcasm,
and vehement vituperation." The prosecution of the Wakefields for
conspiracy, and the abduction of Miss Turner, "forms a singular chapter
in legal history; interesting not less to the student of human nature,
on account of its characters and incidents, than to the lawyer, for the
elaborate discussions on the Scottish law of marriages, and the right
of the wife, even should there have been a legal marriage, to appear as
a witness against the offending husband--matters argued with profuse
learning and ability."
"In setting forth, under a condensed form," says Mr
Townsend,[3] "this and the other most interesting trials of
our time, it has been the object of the editor to free the
work from dry severity by introducing the '_loci lætiores_' of
the advocates, the salient parts of cross-examination--those
little passages of arms between the rival combatants which
diversified the arena, the painting of the forensic scene,
the poetry of action of these legal dramas. He has sought to
give the expressed spirit of eloquence and law, upon occasions
which peculiarly called them forth; pruning what was redundant,
rejecting superfluities, weeding out irrelevant matter, but
omitting no incident or episode that all intelligent witness
would have been disappointed at not hearing."
We present the ensuing paragraph, which immediately follows the
preceding, because it will afford us an opportunity of making a remark
which is applicable to the entire structure of the work before us.
"In the extracts here given from some of the most celebrated
speeches of modern days, the editor has also had the great
advantage of the last corrections of the speakers themselves,
and has thus been enabled to preserve the _ipsissima verba_, by
which minds were captivated and verdicts won; those treasures
of oratory which would have gladdened the old age of Erskine,
could he have seen how his talisman had been passed from hand
to hand, and the mantle of his inspiration caught. The vivid
appeals of Whiteside, the magnificent defence of Cockburn, the
persuasive imagery of Talfourd, will exist as ®kthêmata heis
aehi®--trophies of forensic eloquence, beacon lights it may be,
in the midst of that prosaic mistiness which has begun to creep
around our courts."
The remark to which we have alluded is this: that the work before us
is pervaded by a tone of uniform, excessive, and undistinguishing
_eulogy_, which, however creditable to the amiable and generous
dispenser of it, is calculated to lower our estimate of his critical
judgment, and even--unless one should be on one's guard--to provoke
a harsh and disparaging spirit towards the subjects of such undue
eulogy, and a suspicion that here "praise undeserved," and the remark
is applicable equally to praise "excessive, is censure in disguise!" No
judge, no counsel, can say or do _anything_, in the course of any of
the trials here brought under our notice, without speaking and acting
in such a way as to merit applause for exhibiting the highest qualities
of mind and character. Let it not be supposed, that, in making these
observations, we wish to apply them to the particular instances cited
by Mr Townsend of Messrs Whiteside, Cockburn, and Talfourd--all of whom
are distinguished, accomplished, able, and eloquent advocates; but we
believe that each would, in spite of the fondest self-love, in his own
mind, somewhat mistrust his title to the _amount_ of applause here
bestowed upon him. What more than he has said of them, could he have
said of the greatest orators and advocates whom the world has produced?
In a corresponding strain, Mr Townsend speaks of every one--senior and
junior counsel--and every writer, great and small, whom he has occasion
to mention. Those who knew the late Mr Townsend, and appreciated his
simple and manly character, will refer the defect which we have felt
compelled thus to point out to its true cause--the kindliness of his
heart; and we believe that, had he lived to see these observations, his
candour would have caused him promptly to recognise their justice.
Each of the trials is preceded and followed by "Introductory Essays"
and "Notes."
"The Essays, chiefly historical, have been introduced in order to
familiarise the reader with the subject, and prevent the monotony
which, but for these occasional dissertations, might pervade so many
recurring trials. The notes are added with a similar object."[4] We may
say generally, that these "Essays" and "Notes" always display judgment,
and the writer's complete knowledge of his subject. No reader should
enter on the trial, without carefully perusing the "Essay" which ushers
it in, shedding light upon all its details, and the circumstances
attending the committing of these offences--and indicating with
distinctness the leading features of interest and importance. In the
report of the trial itself, great pains have evidently been taken,
and successfully, to observe rigid impartiality, and secure accuracy
of statement; and the conflicts of counsel with each other and with
witnesses--the temperate, and timely interpositions of the judges,
and their satisfactory summings-up to the jury--are presented to the
reader with no little vividness. The fault of Mr Townsend's style is,
diffuseness, a tendency to colloquiality, and a deficiency of vigour.
With these little exceptions, added to that above noticed, we have no
hesitation in commending these volumes as an acquisition to popular and
professional literature, reflecting credit on the author's memory, and
the bar to which he belonged.
Having thus briefly indicated the general character of this work, and
given the author's own account of it, we propose in the present, and
one, or perhaps two, following articles, to take our own view of some
of the leading "Trials" thus collected by Mr Townsend, incidentally
observing on his treatment of the subject. With him, we regard several
of these trials as exhibiting features of remarkable interest; and are
much indebted to him for having so disposed his materials as to rouse
and rivet the attention of all classes of intelligent readers, but
in an especial degree that of the youthful student of jurisprudence.
Without further preface, we shall commence with that which stands first
in Mr Townsend's collection--the trial of Frost, for high treason.
This affords a very favourable specimen of Mr Townsend's capabilities.
He appears to have worked it out perhaps more exactly to his own
idea than any of the ensuing ones; and, by his able and judicious
treatment of the subject, has given us an opportunity of exhibiting
in glowing colours a forensic battle-field: the stake, life or death;
the combatants, evenly matched, the very flower of the bar; their
tactics clear and decisive, with the odds tremendously against one
party--that is to say, facts too strong for almost any degree of
daring or astuteness to contend against hopefully. Let us see, under
such circumstances, how the combatants acquitted themselves; or, if
one may change the figure, let us see how was played a great game of
chess on the board of life, by skilful and celebrated players. Who were
they? Four in number--Sir John Campbell and Sir Thomas Wilde, then
respectively Attorney and Solicitor-General, representing the Crown;
Sir Frederick Pollock and Mr Fitzroy Kelly, Queen's Counsel for the
prisoner. Ten years have since elapsed, and behold the changes in the
relative positions of these gentlemen! Sir John Campbell is a peer of
the realm, and Lord Chief-Justice of the Queen's Bench: having also,
during the interval, become a laborious and successful biographer of
the Lord Chancellors and Lord Chief-Justices of England. Sir Thomas
Wilde is also a peer of the realm, and Lord High Chancellor, having
been previously Attorney-General and Chief-Justice of the Common
Pleas. Sir Frederick Pollock, having been subsequently appointed
Attorney-General, is now Chief Baron of the Exchequer; while Mr Kelly,
having since become Solicitor-General, lost office on the break-up
of Sir Robert Peel's ministry, and remains--such are the chances and
changes of political life--plain Sir Fitzroy Kelly, but occupying a
splendid position at the bar. These four were the leading counsel; but
besides the Attorney and Solicitor General, the Crown was represented
by two gentlemen of great legal learning and eloquence, since raised
to the bench--Mr Justice Wightman and Mr Justice Talfourd; and by Mr
Serjeant Ludlow, since become a Commissioner of Bankruptcy; and the
Hon. John C. Talbot, now so highly distinguished in Parliamentary
practice. The judges sent as the special commission consisted of the
late Chief-Justice Tindal, the present Mr Baron Parke, and the late
Mr Justice Williams, forming, it is superfluous to say, an admirably
constituted court--the chief being most consummately qualified for his
post by temper, sagacity, and learning.
It was the business of the Attorney and Solicitor General to establish
a case of high treason against the prisoner, and of Sir Frederick
Pollock and Mr Kelly to defend him _à l'outrance_; but God forbid that
we should say _per fas aut nefas_. It were idle to characterise the
intellectual and professional qualifications of these four combatants;
the eminence of all is undisputed, though their idiosyncrasies are
widely different from each other. Suffice it to say, that everything
which great experience, sagacity, learning, power, and eloquence could
bring to bear on that contest might have been confidently looked for.
One circumstance is proper to be borne in mind--that the prisoner's
counsel (of course abhorring the acts imputed to their client) were
stimulated to the very uttermost exertion by the fact that their own
political opinions were notoriously adverse to those entertained by the
prisoner, and those--viz., Chartists--who so confidently summoned two
Tories to the rescue of their imperilled brother Chartists.
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:--
"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.
MY NOVEL; OR, VARIETIES IN ENGLISH LIFE.
BY PISISTRATUS CAXTON.