The Sun.
London, England, 1840-01-02 00:00:00

The Attorney-Genrral—l presum4, so ; as they .re
the parn, ir eli,•tment

Sir F. Pollock—The list of witnesses begin thus :—" A
:ist of witnesses to be produced on the trial of John Frost,
.n an indictment found against him and others in the
sine indictment." It does not mention the nature of the

barge. It does not say high treason ;it does not mend
ion where or when the bill of indictment was found ;

'here is nothing to connect it with the indictment, ex-
eept that in pursuance of the statute, it bad been deli-
.ered along with it. All it says is, that it was merely
.ipon an indictment found against him. There is, then,
nothing but the connection together to show to what it
refers. Charges for high treason in modern times are
fortuaately very rare ; but in former times they have been
exceedingly common. I hope such a period may never
return again; but I believe that there are many instances
n which persons were charged with high treason upon
wo different indictments ; supposing then this—laxity I
sill not condescend to call it—but supposing this illegality

-
were permitted to be practised, why might not happen,
,hat one indictment wonid be sent with a list of the Jury.

and another indictment with a list of witnesses, which did

not refer to it, but to the first indictment? In such a case
how was the prisoner to know to which indictment the
list of witnesses referred ? Therefore it is that I say, if

I am called upon to show it, that the Legislature has acted
wisely and well in making this provision, seeing the scanty
information which such a list gives. I say, that it is wise
and just that the prisoner should have a list of the
witnesses delivered to him at the same time with the in-

dictment, in order that the prisoner may have the means of
knowing that the list applies to the indictment and to
no other. Thus, there might be persons in the un-
happy situation of the prisoner, and who night
be subject to more than one indictment. A copy
of an indictment might be sent with a list of the jury, but
without a list of witnesses, and then there might after-
wards be delivered a list of witnesses without a list of the
jury, or an indictment. Ido not think that this could be
called a compliance with the statute. I suggest these as
matters for the batter judgment of your Lordships; but
after all I say that I haves right to stand upon that which
is the law, and the prisoner is entitled to the benefit of it.
Be the reason, the object, or the policy of the Legislature
what it may, I will now state that, assuming that Mr.
Frost had that, which he certainly had not, the benefit
of Counsel being assigned to him at the very earliest
moment, and that in accordance with the Act, a list of
the jury and a copy of the indictment were sent to him,
and that some days afterwards, I, as his Counsel, being
still with Mr. Frost, and that then an officer of the
Crown came to deliver him a list of the witnesses to be

produced upon his trial. What is the course that
then should have adopted? I have no hesitation in
saying, with the statute before me as an authority—
I should have said, " Put that list in the fire ; I give you
hat advice with fearlessness, and your blood be upon my
head if lam wrong." The provisions of the statute are
,slain and open, and any one who runs may read them. I
shall now call your Lordships' attention to that which
arises out of what my Learned Friend has uttered in the
shape of a protest—that we are not estopped from con-
•ending that the objection comes too late, after he shall
save condescended to give the evidence. I think it right
,o make a few more observations now. In fairness to
-hose who represent the Crown, I do not mean to reserve
any arguments for the reply ; but I state to your Lordships;
in the face of the country, and in the presence of the At-
torney aryl Solicitor Generals, every argument that
occurs to me. I apps ehend, my Lords, that this is the
proper time to take the objection, and that there has
,een no opportunity for taking this objection before.
(here is no practice, my Lords, in the Judges' chambers
upon the subject of high treason. You could not take out
a summons at Sergeants'-inn for a re-delivery of a list,
or to set aside the delivery of an indictment, in order that
it may be re-delivered with a copy of the witnesses. Nor,
my Lords, does any doctrine of laches apply to Sergeants'.
inn. Here it is that the objection is to be made—here,
where the Crown and the prisoner are on equal terms
['he law intended, in many respects, to place the Crown,
nd the prisoner upon equal terms, and it has carried its
tridulgetice farther; for, as Judge Foster remarks, in the
,lelivery of the list of the witnesses, it places the prisoner
in a better condition than the Crown. There cannot be a
doubt of it. But is not laches to be imputed here to the
Crown, and this in a case of importance not only touching
the life of the prisoner, but also in connection with the
grave offence of high treason ? There have been no
lashes on the part of the prisoner to prevent your Lord-
ships from doing him justice the moment the truth of the
facts be made to appear to you. I say, then as I said at
the outset, that ne witnesses can be called, for we have
not had a list of witnesses, in accordance with the provi-
sions of the statute. Here the prisoner has bad no oppor-
tunity before now of making the objection. The Honour-
able and Learned Gentleman then proceeded to comment
upon the evidence of Mr. Maule, and after stating that
though he felt it to be his duty to make the objection that
he had preferred on the preceding day, he did not hope to
succeed in it. Such he said was not the case at present ;
for there were in favour of the prisoner the clear and un-
doubted words of the statute. The prisoner bad lost the
benefit of the objection yesterday, because ~ the practice
that had prevailed was against it ; but to-day, said he, my
Lords, the statute is not to be fritted away by construction.
I know that you are incapable of that, especially where
the practice is entirely with you. I do, then, submit that
the prisoner is entitled to the benefit of the objection—
that the witnesses cannot be called—for the Act of Par-
liament has not been complied with, and the jury will,
under your Lordship's directions, pronounce a verdict of
" Not Guilty."
Mr. Kelly followed on the same side, and contended
that it was imperatively necessary by the statute of
Ann, enacted on the death of the Pretender, and never
since deviated from, that the list of witnesses be delivered
to the party indicted at the same time with a copy of the
indictment. It was impossible that two constructions
could be placed upon the provisions of a statute which
enacted that copies of the two lists should be delivered
at the same time as a copy of the indictment was de.
livered to the party indicted, " on payment of certain
fees." This was the provision of the statute, and it de-
clared that the lists should be delivered not in so many
days, or under such and such circumstances, but " at the
same time when a copy of the indictment was delivered to
the party indicted." Then came another provision, en-
acting that the copy of the indictment, " with the lists,"
should be delivered ten days before the trial, and it
was only by inference that the interval of ten days
applied to the lists at all. Was it possible to at-
tach any but one meaning to the provision of the sta-
tute ? Did it mean that a list of witnesses was to be
delivered at the same time as a copy of the indictment
or not ? If it did not, where was the provision for the
delivery of the lists? That to which he referred was
the only provision foi the ,uhjee.t ; and then, if it were in-
quired bow long before the trial the lists were to be de-
livered, it was found that by their being coupled with the
copy of the indictment they could be delivered ten days
before the trial. This statute first came into operation on
the trial of Lord George Gordon, in 1781, and although
we have not such full reports of those proceedings as of
subsequent trials for high treason, it was manifest from the
records which existed of them, that the Courts of Law,
having its attention directed to the statute, decided that
these documents must be delivered at the same time with a
`copy of the indictment, aad a rule of Court was drawn up to
that effect. Next in order came the trials of Hardy and
Horne Tooke, in 1794, and it was expressly stated in the
very accurate report of the late Mr. Gurney, that ten days
before the trial the solicitor for the Crown delivered a copy
of the indictment with a list of the jurors and witnesses to
the party indicted. The same line of proceeding was ob-
served in the cases of O'Quiglev and others in 1798. There
was then a long interval without the occurrence of any
similar case, with the exception of Despard, of whim' case
there was no part bearing upon this point ; but in 1817
the course for which be contended was pursued in Wat-
son's case. Again, in Brandreth's case, in the same year,
the same proceeding was adopted, and likewise on the
trial of Thistlewood and others in 1820 ; and this, he be-
lieved, closed the catalogue of trials for high treason in
this country until we come down to the present time.
Thus, their Lordships had before them one regular un-
broken series of precedents, beginning in 1786, when the
Statute first came into operation, and ending in 18'20 with
the last case to which it was applicable. In all these
cases the Court, of course, had acted, as he submitted, in
deference, as a Court was bound to act, upon the plain in-
telligible letter of the Statute, and copies of the indict-
ment and lists of the jurors and witnesses were de-
livered together to the persons indicted ten days be-
fore the trial. The Counsel for the Crown now called
upon their Lordships for the first time to disregard the
words of the Statute, and to decide upon what it
might be convenient to them to call the moaning of it. In
referring to recent decisions, a beautiful and a glorious
contrast was to be found between the decisions of those
venerable persons who sat upon the Bench at that period,
and those of the Judges before the revolution in 161111,
which, he grieved to say, had raised a monument of shasne
to the judicial institutions of this country. The Judges
of the land were ever ready, before the Revolution, to
pervert the rational meaning of statutes in favour of the
Crown. The 7th Edward 111. c. 3.
sec. 1, gave to persons
indicted for high treason a true copy of the indictment,
not a list of witnesses--that was not yet included—full five
days before their trial. The first decision under this sta-
tute was Gregg's case in 1707, when there was holden a
meeting of the twelve Judges, and they all laid it down
that it would be safer to deliver a copy of the caption as
well as of the body of the indictment. It was not easy to
see how a prisoner could be prejudiced by the want of a
copy of the caption, but this decision of the twelve Judges was
in a case where no prejudice could easily arise; all the de-
cisions upon this statute also showed that it was looked
upon as a safeguard and a shield against the power of the
Crown, and that it was uniformly construed liberally, and
to the greatest extent of which it was capeble in favour of
prisoners. Supposing that there had been two indictments
against the prisoner, which might have been the case, the
most serious prejudice might have arisen to him from the
non-compliance with the words of the statute ; for the
provision, was not merely to give time to the prisoner to
inquire into the character of the witnesses, or the preju-
dices or opinions of the jurors, but also to enable him to
inquire as to the particular facts witnesses were to prove,
and that could only be effected by the delivery of all the
documents at the same time,
The Learned Judges here
so that he might know that
they all referred to the same transaction.
signified their wish to retire
for a short time, and, upon the application of Sir F. Pol-
lock, permission was granted to the Jury also to retire to
take some refreshments. Advantage was taken of their
absence to throw open the windows and admit a stream of
fresh air, which was an agreeable relief to all present, the
heat o: the Court up to that moment having been most
intense awl distressing, Orr the return of the Judges,
Mr. Kelly resumed his address. He submitted that if
their Lordships adhered to the words of the statute, their
duty was simple, easy of
performance, and clear beyond
doubt. They had only to inquire whether a copy of the
indictment, with a list of the witnesses, and a list of the
jurors, had been delivered to the prisoners at the same
time, and if so, whether that time was ten days before
the trial. But the moment they departed from the
strict provision of the statute, a door was opened for
a series of collateral inquiries, which would be • rectal