The Sun.
London, England, 1840-01-09 00:00:00

MORNING EDITION.

Imake construction greater than that left,by the 25th Ed-
, .vard, cap. 3." Now, Gentlemen, hear the remarks of my
Lord Hale i--" These resolutions being made and settled,
) we must acquiesce in them ; but in my opinion if new cases
happen for the future that have not an express resolution
1 in point, or are not expressly within the words of the 25th
of Edward 111., though they may seem to have a parity of
I reason, it is the safest way, and most agreeable to the
great Act 'of the :15th of Edward 111., first to consult the
Parliam' tit and have their declaration, and to be very wary
in mut, iplying constructive and interpretative treasons, for
, we keiew not where it will end." That, Gentlemen, is
1 eie,t my language. I wish to God I could speak so em-
phatically. It is the language of ono of the greatest
Judges that ever adorn. d the bench of the country, nearly
two hundred years before the time at which I now sneak.
He says, " In whatever is made a d settled we must ac-
quiesce;" but he warns his successors, he warns juries, he
warns the country, he warns the - cople, against ever coming
to such decisions again, or going even one short point be-
yond the law, and "to be very wary in multiplying curl-
structive and interpretative treasons, for we know not
where it will end." And these words, Gentlemen, apply
emphatically to the case before you. If you magnify, if
you extend, if you distort, if ,ou exaggerate a riot, how-
ever dangerous it may be in. its tendency or mischievous in
1 its consequences into hion'n treason, how do you know hut
you yourselves may utenappily in a moment of excitement
i _some of you pro'oably entertain strong political opi-
nions; I know not how that may be, but one may be
i' easily drawn 'into acts which the law will not justify—and
how do you, know but you may, in a moment of heat or
1 excitement, give utterance to intemperate expressions
i which Inny excite the passions of a multitude? And if
they teeeak into open violence, instead of you being sub-
ject 'to fine or imprisonment, or any punishment which the
hies awards as proportionate to your offence, you may,
1
1 'on the very precedent which you yourselves will
have laid down this day, stand indicted by an Attor-
r ney-General for high treason, and the lives of your
children: and children's children, their name, property,
character, and welfare, be placed in danger and in jeo-
pardy for ever. Gentlemen, remember the emphatic lan-
, guage of Lord Hale " We know not where it will end,"
He you not parties to carrying the law one hair's.-breadth
• beyond the limits where you find it. We see, Gentle-
men, that in earlier times the great man was favoured be-
-1 yond the humble and the helpless; not before the trial by
jury was known, but before it became the great shield of
I the lives, liberty, and happiness of the people; and this
i i 3 important with regard to the levying of war, for I am
going to show you that disturbances, marches of a much
more palpable, dangerous, and destructive character than
anything that has been attempted to be proved here, have
ye: not been held to be treason, or a levy ing of war against
th 3 Sovereign. lam about to read what stands recorded
w :is regard to a serious disturbance which took place
*rem after the passing of the statute, in which there was
ranching in military array, and yet it was not held to
be high treason. Lord Hale. says_" In the Parliament
of 10:h Edward I. now punted in Mr. Riley, page 77',
it appears there arose a peivate quarrel between the Earls
' of Gloucester and Hereford, two great Lords Marchers,
and divers of the Earl of Gloucester's party, with his
consent :---• Corn tnultitudine, tarn equitum quam pedi-
turn exierunt de., tena ipsius comitis de Morgannon, cum
vexillo de arrnts, ipsius comitis explicato versus terram Co. mitis lieref ,',e Brecknock, et ingressi fuerunt terram illam i per 3patihret duaram leucarum, et illam deprmdati fuerunt
1 et bona l',la deprre data usque in tenam dicti comitis Gloces-
; trine a':duxerunt,' and killed many, and burnt houses, and
cownitted divers other outrages; and the like was done
• by the Earl of Hereford and his party upon the Earl of
renoucester's. They endeavoured to excuse themselves by
i certain customs between the Lords Marchers. By the
judgment of the Lords in Parliament their Royal franchises
were seized as forfeited during their lives, and they corn-
, mitred to prison till ransomed at the King's pleasure."
Althoresgh here was a war levied between these two Earls,
yet, inasmuch as it was upon a private civarrel between
' tilt- m, it was a ereet riot and contempt, and no levying of
Tear against the King ; and so neither ree common law, nor
I within the statute of the 25th of Edward 111., if it had
been then made, was it high treason, Gentlemen, I pray
your attention to the expression, " That it was indeed
an offence to raise an army 7eithout the King's commie-
Rion," becawe in the only part of my Learned Friend's
' opening in which he professes to give a direct opinion to this
tumultuous assemblarne he talks of superseding the au-
thority of the Crowel_a very vague and indefinite expres-
sion indeed, but ;.n the times of Henry I V., as well as of
Edward 1., the authority of the Cr iwn was actually su-
perseded. l'i the latter reign we find the Earl of Nor-
thumbed tn raising a large and powerful army—marching,
' it ihre'4".n the northern counties, and for which, having
been tri.ed, he considered himself very leniently treated in
being only compelled to pay a fine. It appears by Weis-
inaieam, sub anno 1403, a great rebellion was raised
tar e'rist Henry the Fourth by Henry Percy, son of the
l an; rl of Northumberland and others. The Earl gathered
great force, and actually took part with neither, but
marched with his force, as some thought, towards his son,
and as others thought towards the King—pro rerliente
yrando pads negotio He was hindered in his march by the Earl of Westmoreland, and returned to his house at
Warkworth ; the King had the victory; the Earl pets_
tioned the King; the whole fact Was examined in
Parliament.—Rot, Per;, 5 Hen. n. 12. The King
demanded the opinion
of the Judi an d
uhi
' Counsel touching it. The Lords protest the ' dgs
merit belongs in this case to them. The Lords,j by
-
the King's command, "take The business into examination,
ao:.1 upon the view of the Statute of 25th of Edward the
"i hird and the Statute of, Liveries, " Adjugerent ge coo,
isle fiut fait par le couate, n'eat pas treason, ne felony, mes
trespass tantsolement„ pui quel trespass le dit counte deust
faire fine et ransom a volonte du Roy ;" but Henry 3, the
son, was attaint ,-,f treason. It appears not what the rea-
son of that jiedgment was, whether they thought it only a
compassing 'to levy war, and no war actually levied by him,
because o'ot actually joined with his son, or whether they
thought. his intention was only to come to the King to
medi-ate peace, and not to levy a war, nor to do him
aan bodily harm ; that it was indeed an offence in him
eo vaise an army without the King's commission, but
not an offence of high treason, because it did not appear
that he raise, arms to oppose the King, but posnbly
to assist barn; but, whatever was the reason of it, it
was a veey mild and gentle judgment, for the Earl was
doubtfed of a more severe judgment; note, he returns
thar'es to the Lords and Commons, de leer bone et entyre
. co ers a lii monstre, and thanks the King for his grace,
, Gentlemen, I shall show you that here, in this very case,
this riot was not so great as that in which the Earl of
Hereford was implicated, and that, although not arising
• out of a private quarrel, it weis for so limited a purpose that
I it cannot, without a base overstraining of the law, be
t pronounced high treason, or a loving of war. I know
you will find it to be a grievous offence, but you will not
,I be parties to overstraining that law which is the safeguard
and the protection of the people, by pronouncing this to be
a levying of war. There ) is another case, and, perhaps, a
still more important one—" If men levy war to break
prisons, to deliver one or more particular persons out of
prison wherein they are lawfully imprisoned, unless such as
are imprisoned for treason, this, upon advice of the Judges
upon a special verdict found at the Old Bailey, was ruled
not to be high treason, but only a great riot (1668) ; but
)if it were to break prisons, or deliver persons generally out
of prison, this is treason.'—Coke, P. C., p. 9.
Tbc Foreman of the Jury—It was the son who was pre-
; sent on that occasion, not the father.
, Mr. Kelly—The son, the gallant Hotspur, as he was
called, was certainly arrayed in arms against the most gal-
lant Monarch of the day, Henry the Fifth, then Prince of
i Wales ; but what I was reading, Gentlemen, was done by
the father, who raised in Northumberland a numerous and
powerful army, and marched through Northumberlend and
across the country, as every one thought, to assist his son.
1 There can be no doubt that this was a levying of war,
although it, was not high treason, and if he hold joined his
son and e.ttacked the King's forces it would have been
4 high treason. I only refer to it to show that the mere
i leryie,g of war, unless it be against the Sovereign, does
i not amount to high treason. If the gentleman who was
i k;nd enough to suggest the question means that the son
. 'only, and not the father, was in arras, the matter is mis-
-1 taken. The father was at the, head of an army, and
f marched to Shrewsbury, where, he was met by the Earl of
II Westmoreland. He guided area led the men on the march;
l;ut a lenient construction was put, as it must be put, upon
1 every act connected with A charge of so grave a nature as
, high treason. At the ',tittle of Shrewsbury Hotspur was
present, and fell by ',pie hand of the Prince of Wales ; but
' the father, being met, fortunately, and stopped by the
I Earl
of ~,
i
4 had lost his ':,....te, and although the Earl of Northumberland
J Lad marci-,ed at the hoed of 10 or 12,000 men, he was not
held gu'aty of treason. And why ? Because the Lords
i of Pa'tiament, who were the Jury to try him, thought that
be might not have intended to attack the King's forces.
fhe Attorney-General—Possibly to assist the King.
Mr. Kelly—Pressiblv to assist him. If there be a doubt.
and you, Gentlomen deal as mercifully by the prisoner as
1 the Lords of ' ,e' arliam'ent did by the Earl of Northumber-
;t land, he wilt. go free from that bar. Here was Hotspur,
prress, edibv. It. gallant and accomplished warrior, in danger
re, that .ite which he afterwards lost. His father marches
at tl'.,. bead of 10,000 or 12 000 men. And the clues-
i Lion for the Jura, the Lords of Parliament, was, " Did
i ,
; .se march to assist the King or his son ? Why, Gen-
t tlemen, can there be a doubt that he marched to
save his son's life, but came too late ? And when the
question came before the Jury they decided it fa-
-,curably, although, I should have supposed, no man
could have a doubt about the intentions of a father ha
such a case. I only refer to it to show that where there
is a doubt in a charge of treason, whether in the case of a
peer or peasant, the Lords in Parliament, or you, Gentle-
men, sitting in that box, are bound to put the best con-
struction, and, if you can raise a doubt, to give the pri-
eoner the benefit of that doubt. There is, Gentlemen, a
Astill, later case—one of comparatively modern times —to
wiaich I shall shortly call your attention ; and it is not
i unimportant to repeat here that I was upon the question
f of " intention," because I have admitted to you that Mr.
; Frost became a party to the marching of armed multi-
! tudes through the country, and if a treasonable intent
Icould be shown it might amount to a levying of war. The
i case, Gentlemen, to which I am going to- allude is the
4 case of Lord George Gordon, a young nobleman of great
; power, great talents, great influence, and I believe no small
; powers of eloquence. He assembled no less than 20,000
men, in order to petition Parliament, and to made a
l strong demonstration by force and numbers in sup-
port of their petition against an Act of Parlia-
ment which had been some little time before passed
1 for the relief of Roman Catholics, called S:r George
Savile's Act. In that case 2,000 men marched from St.
George2-6elds down to the House of Commons—not,
Gentlemen, as at Newport, at a distance from the seat
of Government, the Ministers, and the Parliament—
but marched down to the House of Commons at a time
when certain resolutions relative to the repeal of Sir
George Savile's Act were debated in the House. This
multitude, convened, prompted, and directed, and encou-
raged by Lord G. Gordon, appeared at the House
eel Commons to present their petition, and almost filled
the lobby; so that when the House was about to divide,
eteordini
to the arrangements of that time, they could
tint died a MI 4CCOUtit of the presence of these strangers.
'thu question arose whether treason had been committed
gallw00616•••••••••••••••••••----

by Lord George Gordon. This multitude having
first proceeded to the House of Commons to iripe
rnidate and overawe the Legislature while aliieussing
public measures, they increesed in n'utribers, and
such flagrant outrages were committed that during
two or three days and nights All London was it a
blaze. I believe that at one time there were '.ter, 'less than
36 tires raging in the metropolis, and stet Greet and avowed
ehiect was to cause a repeal of tilt Act for the relief of the
Roman Catholics. Lord George Gordon was indicted for
high treason. It weee then clearly laid down by the
Learned and etecellent Chief Justice who presided, and
no doubt, as the law now stands, correctly laid down, that
the acts charred did amount to a levying of war. The
question then was whether the object and intent of Lord
George Gordon, the prisoner at the bar, as proved by his
acts to the satisfaction of the jury, were treasonable Or
not. It is important to bear in mind that this Was ecknow.
!edged to be a levying of war, and the question still re-
mained behind as to what was the intent or object in the
mind of the prisoner, whether he did not intend to com-
pel the Legislature to alter the law or subvert the Con-
stitution. The evidence given in that case was incom-
parably stronger than any that has been offered against
the prisoner at the bar; and yet, after being
tried before Learned Judges, and by a bold and un-
compromising jury, Lord George Gorden was acquitted.
There is no doubt that it was a high misdemeanour, for
many were punished with miner penalties for their parti-
cipation in it; and if Lord G Gordon had been indicted
for a riot and tumult he would have suffered the punish-
ment awarded by the law for that offence. But the ques-
tion having been raised of levying war to dethrone the
Sovereign or to alter the laws or subvert the Constitution,
the prisoner was acquitted. Gentlemen, I have troubled
you with references to these cases in order that you may
keep it quite clear and distinct in your own minds, that
there may be a levying of war—that a party charged
with treason may have levied war, may have ben present
at acts of violence, may with his own hand have sacri-
ficed human lives, may have destroyed a whole regiment of
her Majesty's troops, and still the question remained be-
hind,svith what intent was this done—whether it was a mere
levying of men, or a levying of waragainat the Sovereignand
to subvert the Constitution. Whatever may have been the
mischief—.whatever may have been the riot—whatever may
have been the bloodshed, if you will, the question, still is
what was the intent and design on the mind of the pri-
soner at the time when he committed those acts. Be-
cause if we are to say that whenever a riot, a tumult, or
bloodshed occurs, it is a levying of war against the So-
vereign, you know on every occasion when an outrage
occurred, the individual would be indicted for high
treason, and, instead of suffering the fine or imprison-
ment which would be appropriated to his offence, he would
be consigned to the most awful of all deaths which the law
can inflict upon a human creature. It is therefore of un-
speakable importance to observe the distinction between
riot, tumult, and even bloodshed on one hand, and, on
the other, that treason alone with which the prisoner now
stands charged. The question, therefore, for you will be
what was the real intention and design of the assembly of
people who met on the 4th of November, and how far Mr.
Frost was a party to any criminal intention. I shall now,
Gentlemen, refer you to the charge of Lord Mansfield in
the case to which I referred-the case of Lord George
Gordon—because it extremely resembled in many of
its principal features the case which you have now to
consider. In both, multitudes of people assembled
together—in both great outrages were committed.
I have described to you those which occurred in
Lord George Gordon's case—you but too well know those
which are connected with the present. When the case
was gone through, and Lord Mansfield had laid down the
law as it was recognised by the most eminent lawyers, he
said, " There were two questions for the consideration of
the Jury. First, whether this multitude did assemble and
commit acts of violence"—of that you know, Gentlemen,
there could be no doubt—" with intent to terrify and
compel the Legislature to repeal the Act called Sir
George Savile's. If upon this point your opinion should
be in the negative, that makes an end of the whole; the
prisoner ought to be acquitted. But if 3 our opinion
should be that the intent of this multitude, and the vie_
I lence they committed, was to force a repeal, there arises a
' second point, whether the prisoner at the bar incited,
encouraged, promoted, or assisted in raising this insur-
rection, and the terror they carried with them with the
ii tent of forcing a repeal of this law ? This, Gentlemen,
is the whole of the evidence on either side ; you will
I weigh this evidence, and all the observations made at
the bar or which occur to yourselves upon it—l avoid
making any. The points for you to determine are, whether
this multitude were assembled and acted with an intent
to force a repeal of this so-called Sir George Saville's
Act ; and if you think such was their intent, whether the
share the prisoner had in getting together such a number
of people to go down to the House of Commons—in
meeting them in St George's-fields—in talking to them in
the lobby—in wearing the cockade on Friday and Satur-
day—or in any other part of his conduct—had the same
iintent, by the terror of an outrageous multitude and the
violence they committed, and threatened,sto force a repeal
of this Act. If there was no such intention either in the
mob or the prisoner, he ought to be acquitted ; but if you
think there was such an intent in the multitude, incited,
promoted, or encouraged by the prisoner, then you ought
to find him guilty. If the scale hang doubtful, and you
are not fully satisfied that he is guilty, you ought to lean
on the favourable side and acquit him." Lord Mansfield
leaves two questions, the one as to the intent of the mul-
titude and the other as to the intent of the prisoner ; and
his Lordship added, as my Lords will add to whatever in-
structions they may give you, Gentlemen, " If the scale
hang doubtful, and you are not fully satisfied he is guilty,
you ought to lean on the favourable side and acquit him."
That is the charge of my Lord Mansfield in that case ; and
although there a tumult occurred and outrages were com-
mitted—although a multitude came to the verge, ti the
very door of the Legislature, twenty thousand in number,
to overawe the Members in their debates—and although
Lord George Gordon was so closely connected with them
in their subsequent outrages that lie, like Mr. Frost, gave
a protection to a person who applied to him for it--vet,
although hie acts were wrong in deed, they were not held
to
be done with a treasonable intent, and he was acquitted.
Before I leave that part of the subject I may tell you what
that
othrehmig,hantdreyaesoto.how far Short his acts may be of the guilt
During the riots a mais• ofethe name of
Pond, who had heard that his house was next to be pulled
down—for you know, Gentleman, they were pulling
down, burning, and destroying —applied to the prisoner for as- phrootuescetsionin,
whiimll,ini
hope,these teprrmoste: whichevery directionh o
gave
protect and lel o
true friends of Protestantism
praetoran y true
of
thia Protestant,prop eno injury to the property of
ignn
ordere d ) George
thate()r g
it
is
aam well assured that the pre-
cause.
protection property is
Gordon."
and true friend of the
(Si
them
auoltditouoddeewr hitichtheweprreopaes
migohnt.bil'ieadve an influence over
The prisoner gave this
property was saved ; and yet the
for committing out-
rage,Jury held that although he might be guilty of riot,of
dition, of unwarrantable, nay, even of criminal
,tIZY.
were not satisfied that he intended to subvert the Gore, •mn-
ment or dethrone the Sovereign, and they acquitted him
of high treason. Gentlemen, my' object in alluing to all
this is to guide your minds to this proposition, that what-
ever may have been the loss, whatever may have been the
outrages, whatever may have been the painful and melan-
choly consequences attendant on the transaction of the 4th
November, still the great question in the case—that upon
which your verdict must depend—is what was the intent
and design in the minds of the multitude—what was the
intent and design in the mind of Mr. Frost, the prisoner.
And their Lordships will tell you that, in order to come
to any conclusion importing the guilt of the prisoner, it
must be proved to your perfect conviction that he en-
tertained the intent and design stated in the indictment.
I propose now, Gentlemen, shortly to call your attention to
that intent and design as stated in that indictment.
Because, if upon the evidence you should find no proof or
proof insufficient to satisfy you that the prisoner intended
to do that which has been stated to be his intention in
the indictment, then there is an end to the case and the
prisoner will be entitled to a verdict of acquittal. The
indictment contains several counts. I shall not complain
of the number of those counts, but I do think that the
Attorney-General would have afforded a better opportu-
nity for the accomplishment of justice, and would have
exhibited a more indulgent spirit towards the accused, if
he had said that the count which he meant to sustain by
evidence was that charging the prisoner with intent, by
force, to subvert the Constitution and the Government, or
to force an alteration in the law. That, in my judg-
ment, would have been the better and the more indulgent
course. For, my Lords, when we look to the indictment
I think it will be found that the parts of it charging the
prisoner with, by force, endeavouring to subvert the Con-
stitution and Government of the country, to change by
force the law, and to compel her Majesty to alter her mea-
sures—l think that this is all contained in the indictment,
which has been endeavoured to be sustained by evidence,
or which it was the intention of my Learned Friend to
sustain.

The Attorney-Gencral—There is nothing about intent
in this.

Mr. Kelly_My Learned Friend is mistaken. The first
count states that the prisoner and others did levy war
against the Queen, and further, that, with arms in their
hands, " with intent, by and with the said last-mentioned
arms, to arm themselves, and the false traitors, in order to
attack, fight with, kill, and destroy the soldiers, troops,
and forces of our said Lady the Queen, and other liege
and faithful subjects, and to raise, make, and levy insurrec-
tion, rebellion, and war, against our said Lady the Queen,
in this realm, and thereby to subvert and destroy the Con-
stitution and Government of this realm as by law esta-
blished, and to altar and change the laws of this realm by
force." Then there is a count for levying war, and then
for compassing to depose the Queen. With regard to this
lastwer were
oltitnot ,it
wastew oauwl
rd upon doubtless
it
abnedesteemed
can t o
oossi
purpose of reference when I come o
deal with the overt
acts alleged against the prisoner Then to ffortitme
e
h
there is a count
charging the prisoner and others with c ir:ng to seize
upon Newport, and upon the Post-otlice there
count is for levying public war against thce, and the last
seems to me, Gentlemen, that without goin Queen.
the indictment, it will be sufficient for my p
i °uo
rgh all
ur
to it generally. It is said in the indictment posethtefer
prisoner, with others charged with levying war andatoththe
overt acts, with intent to subvert the Government er
Constitution of the country, and to compel the Queen to
alter her measures, or, in other words, the charge may be
reduced to this—that acts were done by them with the
intention of compelling the Queen to alter her measures,
and, by force, to compel an alteration of the law. Gen- 1
tlemen, this is the question in this case, upon which the
life of the prisoner hangs. His life depends upon these
averments in the indictment being made out; and, being
so, it became the Counsel for the Crown--it wes the

duty of the Attorney-General, to you, Gentlemen, to

public justice, and, above all, his duty to the unhappy
prisoner—to state the charge which he was about to sup-
port by evidence. I conceive that my Learned Friend
_ .

felt this to be his bounden duty to do ; for, although
it is their privilege, yet it is not the custom for the
other law officers of the Crown to address the Court be-

fore the Counsel for the prisoner. We, therefore, t
whose advocacy the life of the accused is entrusted, hay

to deal with. the case, can only deal with it; ae it lie; been
opened, sustained, and placed. before us by my Friend the
Attorney-Generel. We Cannot anticipate the arguments
which rney ocfered by the Solicitor-General when he
eettes to make his reply, but can only grapple with the
case as it stands at the close of the evidence which has
been produced for your consideration ; and we therefore
naturally look to the Statement of the Attorney-General
for the intent) the object, and declarations which he set
forth in it, and which can be the only guides by which the
Counsel for the prisoner can be governed. My Learned
Friend, in the statement he made--and let us see how he
looks at the case-._l observe, after elaborately referring to
the law of treason, and adverting to the bearing of the
law upon some of the facts, proceeds, and this is the first
indication or "purpose" we find in his opening speech.
My Learned Friend said, " It appears that there has
been an ermed insurrection of a public nature in this
realm for the purpose of superseding and destroying the
law and the authority of the Crown." Now, Gentlemen,
I certainly looked for something more explicit than this
in reference to the charge against the prisoner. I
know of eu statute, Gentlemen, in which it is made high
treason to supersede or destroy the authority of the
Crown. Why, you supersede the authority of the Crown
by laying hands upon a constable, and obstructing hirn
in the performance of his duty, and if you subvert the au-
thority of the Crown, which
you may do many acts of
themselves innocent, you supersede the authority of the
Crown. I notice this, Gentlemen, as it is the declaration
of the Attorney_General, but still it leaves the case exactly
as it we; before ; and for the purpose of saying that my
Learned Friend needed not to have reverted to a decla-
ration so vague, so unsatisfactory, and undefined. Further
on in his speech my Learned Friend, with respect to the
intent of the prisoner, states, and, Gentlemen, I entreat
your attention to this definition of the Attorney-General,
affecting, as it does, the life of the prisoner at the bar ;
and I hope not only that I shall satisfy you, but their
Lordships, when the time comes when they will address
you, will also inform you, that the Crown has no right to
prove the commission of a number of illegal acts, and then
to leave the Counsel for the prisoner to show that the pur-
pose, object, and the intent with which they were committed
is short of treason. Gentlemen, the Crown has no right to
leave the case in that position. The law is, not that they may
prove the levying of war, the collecting of a number c 1
armed persons, nay, the assembling an overpowering re, ee
and then say to the Counsel for the prisoner, It is :se,
you to show that these acts do not amount to tress
No, they are bound by the indictment—they are bound by
the law—they are bound by mural duty in a ease where a
human life—where many lives are at stake—they are
hound, I repeat, to state explicitly, plainly, and without
leaving over them the shadow of a doubt, the purpose and
the object which the prisoner had in view when he com-
mitted the illegal act charged against him. I protest, there-
fore, against the right of the Attorney or the Solicitor-
General, more especially the last—l protest against his
right to bring forward proof of' the commission of five, six,
seven, or eight illegal acts, and then to say to the Counsel
for the prisoner, " It is for you to show that the purpose
with which those acts were committed falls short of trea-
son." No, Gentlemen, it is he who must show the pur-
and and
shall
a asl
indubitably
now
tell yo that h a
wt
ha tit thusthe
pose, the object, and the intent, clearly, palpably, and
distinctly, which the prisoner bad in view, and he must
clearlyyeontreaasson;
aprnroovuenttso t
Attorney-General has said in reference to this
After
consultations
observing that meetings and consul *
had
taken
place, he eays—" There was particularly
a meeting held
at a place called Blackwood, en the Friday before
of November; various deputies thatattended ore the 3d
There was a return made of the armed force meeting.
bewhich could
mustered, and it would appear that there
the plan or
scheme was laid down which was afterwards to be carried
into effect." This,
Gentlemen, was the statement of
my
Learned Friend, and I appeal to you if it has been sup-
ported with one particle of
proof. It is proved, certainl
that the prisoners Mr. Frost, William Jones,and 7epha
niah Williams, had met at a
üblic-houseen t heFriday
before the 3d of November, arid that there were several
other persons there But has it been proved with what
purpose they met ? Has it been proved that any re-
solutions were passed by them ? Has it been shown
that any deputies were there, or whether a return of
the numbers or the armed force which could be mus-
tered was made ? In reference to these points, Gentle-
men, I ask you if there has been a single iota of proof?
Why, the only evidence at all upon the matter is that of
the landlord of the house, who states that a number of
persons assembled there, but that he neither knew them nor
what had taken place amongst them. But now, again,
with regard to the purpose of the prisoner. This, Gen-
tlemen, is the object which the Attorney-General states
the prisoner had in view, and on which he calls upon you
to consign the deceased to death. This is his case, and if
in this he fails, you are bound to pronounce a verdict of
acquittal; but if he succeeds in proving it, the law is, as
I must acknowledge it to be, the prisoner must suffer the
death which it decrees. With regard to this, the object of
the prisoner, the Attorney-General said, " Arriving at
Newport they were to attack the troops who were there ;
to take possession of the town ; to break down the bridge
which is there across the Usk ; to stop her Majesty's
mails ; and then by signal rockets, which were to be
thrown up, the success of the scheme was to be an-
nounced. The mail not arriving in Birmingham in an
hour and a half after its usual time, those who were in
concert with them in that town were to know by that
circumstance that the plan had succeeded, and there was
to be a rising there ; and generally in the north of Eng-
land, and the Charter was to be proclaimed as the law
of the land." That, Gentlemen, is the treasonable
purpose with which the prisoner is accused--the Charter
was to be proclaimed the law of the land; and I hope
I shall not prejudice the case of the prisoner by what I am
now about to say. I admit that if Mr. Frost intended to
attack the troops, to stop hezMajesty's mail, to seize upon
the Post-office, to make a signal of the success of his
plans to his confederates at Birmingham and elsewhere, on
which they were to rise in rebellion, in order to proclaim
the Charter the law of the land—I admit that if these
were the intentions of Mr. Frost, then has he committed
the treason with which he has been charged, and that he
must go to an untimely grave for that offence. But,
Gentleman, as I said when I began, I will go through it
step by step, sentence by sentence, and word by wordeand
I will shave-that ,the evidence proves positively, -convince
ingly, end beyond a shadow of elbubt, that it was impos-
sible he could hrive entertained such a design, and that the
Attorney-General might as soon take a knife and stab
the prisoner to the heart as ask you to believe, from the
evidence, this was the intent of the prisoner, and upon that
belief to convict him. Then, as to the rest—the ac.s
by which this object of the prisoner was to be carried
' out, although some of the evidence proves these to be in-
credible—impossible—yet I shall address a few words to
you now in reference to this, as I do not wish at another
stage of my observations to perplex myself, or to harass
your attention. You will remember that, according to the
statement of the Attorney_General the prisoner was to
have seized Newport, by attacking the military there, to
seize the post-office, to blow up the bridge in order to stop
the mails, in order to make a signal to his confederates in
Birmingham to rise—nay, to congregate in open rebellion
—but all these acts were merely conducive to an ulterior
end. They did not want to destroy the mail-coaches ; of
what utility could this be ? They could derive no advan-
tage from the mere. destruction of the bridge or by the
seizure of a few letters, or by the people of Birmingham
occupying the highway. These matters could have been
of no benefit to the Chartists, and the acts alleged, there-
fore all come down to this--that the Charter shall be at
once proclaimed the law of the land, That, Gentlemen,
is the only statement of the Attorney-general as to the
ulterior treasonable object with which the other acts were
to be committed ; and if, Gentlemen, I show to you and to
their Lordships that this end, this object, has no existence
but in the statement of the Attorney-General, on this ground
alone I shall be entitled to ask that my client shall be
acquitted ; and, Gentlemen, we have been now here
for a week occupied with this trial—the evidence took
up more than three days—and, I ask you, have we
been afforded a particle, a tittle of testimony, or a single
declaration in it to shew what this Charter was, or what
that law was which was to be proclaimed throughout the
land ? Gentlemen, there has not been any evidence what-
ever to show this. Certainly my Learned Friend, Sir F.
Pollock, conscious of the innocence of his client, and be-
lieving that he could not be injured by what he stated,
blundered a little—l may be allowed to say—for there
was nothing whatever in our briefs to lead to it--in his
address to you, and told you something of the first four or
five articles of the Charter, and that gave us the first in-
sight into what this Charter was. But, Gentlemen, before
the Crown can call upon you to send fifteen fellow-erea-
tures—fifteen human beings to an untimely tomb, must
they not show you, not by statements speculative or imagi-
nary or presumptive, but upon evidence clear, palpable,
uncontradieted, and upon oath, what the nature of
the alteration of the law of the land which that
Charter would effect, and also that this was
the object of those who arc alleged to contemplate
the alteration ; and, Gentlemen, having attended to the
evidence produced during the three days I do believe that
not a single point was elicited in reference to the position
which the opening of the Attorney-General rendered so
essential to be proved—not the remotest point was proved
as to this proclamation of the Charter as the law of the
land. Nay, Gentlemen—and if lam wrong I hope I may
he corrected—l do not believe that the word " Charter"
was once introduced or mentioned, and yet men are to be
tried and sent to a bloody grave for conspiracy, to make
the Charter the law of the land, whilst by the 39 witnesses
who were examined out of the 70 who should have been
called, not one word concerningthe Charter was mentioned,
and yet this is an accusation of a conspiracy to establish it.
This is not the way in which the predecessors of my
Learned Friends dealt with men who were placed on
trial for their lives. In the case of Lord George Gor-
don he was distinctly charged by the law officer of that
day with the design by force to compass an altera-
tion of the law ; and were the Jury left in doubt as
to what that alteration was ? No. The case 19113
opened by the Attorney-General of the day, and it was
proved that an illegal meeting had been assembled
to compel the repeal of Sir George Savile's Act in
favour of the Roman Catholics, and thus the Counsel for
the prisoner, the illustrious Erskine, knew what he had to
deal with—the charge of levying war with intent to com-
pel the repeal of Sevile's Act. He knave that this was a
palpable and a tangible object to grapple with. Again, in
the cases of Watson, Horne Tooke, and Hardy, the
charges were plain and substantial. They were charged
one after the other with the intent to subvert the law of the
country, to set aside the Parliament, and to establish a
esonvention in its place. Here there was something to
meet—something to grapple with—and the same was the
mode of proceeding in the cases of Watson and Thistles
wood, whereas in this case the only object stated by the
Attorney-General in his opening speech to be that of the
prisoner, was the establishment of the Charter as the kw of
the land, whereas there hes not been the slightest approach
to proof or any attempt or design of this kind, or even of a
declaration to that effect from one of the ten thousand per-
sons who are said to have assembled in order that this Cha-
rter law should be proclaimed. Well, then, if I have thus got
rid of the " object" of the prisoner, I hove now only to deal
with the means, and I trust I shall be able to show, although
as to the means there has not been the same failure as
regards the evidence adduced to prove them—yet that

there is a failure in substantiating any of the purposes said
to be entertained with a view to accomplish the ultimate
object of the prisoner; and I shall now go to show that it
was impossible those purposes could have been entertained,
and I shall first come to the important question of the at-
tack upon the soldiers. If the prisoner had the intention
of overturning the Government, and of dethroning our
youthful and beloved Sovereign, there can be no doubt
but that one of the first means that would be adopted for
attaining such lawless objects would be the disarming of
some of her Majesty's troops. According to my Learned
Friend's opening the case they were to have attacked the
troops. The first observation I have to make upon this
part of the case is this, that it is exceedingly remarkable
that in that which is laid as an overt act in the indictment
that those persons intended to attack the troops, that the case
rests upon the evidence of some witness as to some state-
ment supposed to have been made by Mr. Frost, or by some
one else, as to attacking the troops ; and yet it is exceed.
ingly remarkable that, having, as it is said, this hostile
intention, that they should have passed by the poor-house
in which the troops were assembled, and yet that it never
entered into the contemplation of Mr. Frost, nor of any
one else, to attack, no, nor to mark them, nor to keep watch
upon them, nor to see whether they were likely to come
down and mingle in the affray ? Is it not, then, wonder.
ful that when you have, as you do here, to try men for
their lives upon a charge, the very essence of which is that
they intended to. do a certain thing, and vet, when you
conic to look at the things which they actually have dose,
you do not find that that particular thing with which they
were charged was even attempted. Upon looking at the
map you will see the poorhouse where the soldiers were,
excepting the few that had gone down to the Westgate.
There, then, you see these men passing by that which was
said to be their object. You see them passing it by, and
taking no notice of it.
The Chief Justice remarked that the poorhouse was
about 100 yards from where the mab were.
Mr. Kelly—And yet disa-ming the military was said to
others.
utohruner
r,
be one of their first objects, and at the very first opportu-
tunity they pass by that object.
The jurors here retired for a sh art time; upon their re-
turn,
theandti attention
dt
tattheed a
an question,
att attach
uapsonit t
the
et a
mn
isi
tuapryo.n t e
isv ia
Mr. Kelly continued by saying-_I was about to direct
Jt
I,,,,Ntare,ils:vielavaegaatintasctketdhethpermis,onseord
'fence, whether the prisoner at the bar, in concert with
idfesptrroo ;
; important question in this case, although it would not
„a have intended to attack the military, lie might af-
eeCdl;every tunaen he
tet the whole company, or in the whole regiment, still the
question would have remained between us, did he do all
ihat for the treasonable purposs stated in this indictment ?
If,
therefore, the fact were proved, as I think I shall show
you it is distinctly
disproved, that they either meditated an
attack upon the soldiery, or knowingly made an
attack on them, still you would have to consider what was
the object and the ultimate purpose and object of the at-
tack. Ido deny upon the evidence that there is any proof
that either the prisoner at the bar, or any one of that nu-
merous multitude that came down troon Newport on the
4th November, for one moment of time ever had the se-
rious intention of making an attack upon the soldiers. I
deny it totally, wholly, and confidently, on the evidence.
My Learned Friend says that one of the objects of the pri-
soner was to attack the military, and I will show you by
and by how it is that his witnesses sustain the charge.
These men come down to the number of &ON or 10,000,
their first purpose being, as it is said, to attack the military.
Observe that Mr. Frost is an inhabitant of Newport, and
that is the place where the military were stationed ; and
yet, having such an intent upon his mind, he passes
within 100 yards of the place, and pays no attention to it ;
he and the multitude march away from it ! The whole of
them intending to attack the military 1 Why did he and
they do this ? Do you believe the part of the evidence
upon this risk ? Why, even, if it were true that one of
the boys told Mr. Frost that a portion of the soldiers were
gone to the Westgate, was not that an additional induce-
ment to him to attack them, at a moment when their
forces were divided? Yeti will be told by the Solicitor-
General that you are to judge the intentions of the
prisoner from his acts. If you are to do so, then
are you to infer, from this large body of men
passing within one hundred yards of them, and yet not
attacking them, that they intended to attack them ? Recol-
lect, that if the contradictory evidence given upon this
point is sufficient to raise a doubt on your minds, you are
compelled to acquit the prisoner. If it is true that in all
insurrections, in all rebellions, in all revolutions, one of the
first acts done or compassed by those who take such things
into their meditation is, first to seize upon the military in
the neighbourhood of the spot in which the revolution or
rebellion is to break out, it is naturally then that the first
thing to be done would be to call witnesses who would at-
tempt to prove this. But, in the outset, I ask you, can it
be true? If the whole of the ten thousand persons intended
to attack the military, why did they pass the poorhouse,
in which were the military with diminished forces? Now,
isi • m is the first witness who spoke of attacking the
military? It is Harford, and he makes Frost
declare that the first thing he- intended to do 'was to go
to the Law poorhouse, and there take the soldiers
and their arms. This was said on the night of the
3d of November. This is used as evidence of a guilty
intent on the part of Frost, and you see him pass the
new poorhouse the next day and not attack the military.
In God's name, if he intended it, why did he not do it?
It is •
a.so said that he declared his intention to at-
tack powder-houses, and yet no pewees-houses are
attacked. The only evidence we have upon this point is
the Attorney-General. From the testimony which liar-
ford has given respecting himself, and from hs manifest
perjury, I ask you if you would find a verdict in a civil case
upon the evidence of a man like that ? You have next the
evidence of the man Hodges to show the same intent on the
part of Frost to attack the military, and while he tells
that story he introduces the story of a man with a glazed
hat saying that all the soldiers were Chartists, and had
their arms ready and were only waiting for the rioters to
come down. You find, then, in this case, that instead of
treason being made out by plain and distinct acts, it is at-
tempted to be proved against the prisoner, by a combination
of minute circumstances which are brought together, in
order that by the mass, the prisoner may be over-
whelmed. And now let me remind you, that' among the
witnesses Which the Crown has thought proper, in 'the.dis-
charge of its duty, and that the Government has sent for-
ward as worthy of being adopted by a Jury of Englishmen,
there are those to be found, those who have either sworn
falsely now, or who have sworn falsely on a former occasion.
You have had before you one of those admitting he swore
falsely, and yet that man is one of the witnesses, upon
fora whom the Attorney-General reliesverdict, and re-
lying too upon whom, he calls upon you to take the life
of a fellow•creature. I think that my Learned Friends
would better have consulted their own character, and the
character of the Government they represented, if they had
abstained from calling upon such witnesses. What lis
their case so weak, so feeble, and so meagre, that they
must rest it upon the testimony of an avowedly perjure.:
witness? Is their case to stand or to fall ? Is it to turn
upon a witness that it is a shame to the Government they
could have produced him, and yet hoped by his means to
endanger the life of any Englishman upon such a charge
as this ? But I leave to my Learned Friend to deal with
his own witness and his own witness's testimony as best
becomes his own honour and character. I tell it to you
fearlessly, and careless what remark my observation may
call forth, that it is not to the honour and it cannot be to
the credit of the Government that they should, on such
an occasion, have brought forward such a witness
as Hodges, even admitting that the charges of
treason would not be complete without him. They
knew before-hand all that this man ( Hodges) had sworn;
they knew how contradictory was that swearing, and then
they brought forward the witness before you, obliged to
admit that he is a perjurer. Let my Learned Friend an-
swer that as he thinks proper. The man admitted that be
had sworn falsely on a former day. Supposing, then, that
the prisoner had been tried for his life on the evidence
that the prisoner gave, not to-day, but formerly—suppos-
ing that there had been a conviction, and that the prisoner
had thus been sent to his bloody grave by you. Suppos-
ing that this wretch afterwards admitted that he had de-
luded you by his perjuries, what must:not be the agonies and
the remorse you would have endured ? And yet this is
one of their choice witnesses 1 He is one of the seventy
on the back of the bill ; he is in the list of 230 delivered
to us ; he is amongst the thirty-nine examined ; yes, this
monster is one of these selected by them to hang the un-
fortunate man at the bar. But I cannot trust myself
with observations further on this part of the case. I
now come to the attack on the military at the West-
gate. It is plain that once the military were un-
masked, and that the mob were sure they were in
the Westgate, that not a shot was fired at them. The
Mayor and Sergeant Daly were wounded when the shut-
ters were taken down. They were the only persons
wounded. None of the military receivod any injury once
they fired on the mob. The mob fled once they saw the
soldiers arrayed against them. And this is in accordance
with the evidence of Sergeant Daly and of all the wit-
nesses. What did the Attorney-General say, in opening
his case, upon this point ? He said the soldiers were then
ordered to fire. "At this time the insurgents had gained
the various advances to the hou-e.
fhey were in the
passage leading to the room in which the military were as-
sembled, and if the order to file had not then been given
there is no reason to doubt that the military would have
all been massacred. The order, however, was speedily
and effectually discharged. The insurgents in the pass-
age were fired on, and several of them fell and were
killed. The shutters being all removed from the windows
the men directed their pieces through it, and thus had
command of the space in which the insurgents were drawn
up. They accordingly fired into the street, and several
of the insurgents were wounded and fell, and the others
were speedily dispersed." Does my Learned Friend
attempt to say that that mob returned the fire, or that
the mob offered the slightest resistance to the soldiers after
they were unmasked ? No ; he says " Mr. Frost had not
been seen after the firing first began, and they it'd in every
direction." This was the whole case before him, and it
was not till Lieutenant Gray was examined that any wit-
ness ever suggested that the mob might have fired on the
military in return, and be without knowledge of the fact,
but merely becausejle seems not to have thought it pos-
sible that an armed body of Englishmen would have re-
ceived the fire of troops without returning- it. Now then,
Gentlemen, let us consider on what evidence rests the
_ _

statement that Mr. Frost was aware that there were sol-
diers at the Westgate at all ; simply upon the testimony of
the two boys, a couple of idle lads, upon whose evidence
and whose intelligence, even if they meant to speak to the
best of their recollection the truth, no reliance is to be
placed. For I will show you, by referring to the uncon-
tradicted evidence, that it was impossible Mr. Frost could
be aware there were sole bcrs in the town at all. He knew
there were soldiers in the barracks, but he could not know
there were soldiers in the• town, since the soldiers were
not marched down to the Nestgate until the very period
when he is represented as m aking the inquiry if there were
soldiers there, and the ix gives him the information
which I will show you it was impossible that he could have
given. I shall not dwell up m this part of the evidence,
because it was the duty of the Crown to bring it home
clearly against the prisoner, , and it is sufficient for me to
show you that the evidence ,'a such as ought to raise a
reasonable doubt on your mind to entitle me to call on you ,