Blackwood's Edinburgh Magazine, Vol. 68, No 420, October 1850

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.