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

Judge Parke suggestCtitht.t, the question which was de--
sired to be put should be subniltied to the Court.

The Solicitor-General then said the question which I
wish to ask is this, 6. Were you at the door of the West-
gate Inn ? Did you ask any of the insurgents what they
ranted, and did any one answer that question?
Sir P. Pollock objected to the quesatm being put. It
was not because she witnesses for the prisoner gave a dif-
ferent account of that tearizaetion, the whole of whieli
the Crown might have proved; it was not because that
' a man who as a witness gave the name of another
witness that the Cromi had a right to renal that wit-
ness so named, for the purpose of contradicting the
statement made by the witness for the defence.
He would put this case. Supposing in the course of a
conversation cez taro matters are supposed to page', and the
persons who were present are called, three or four indivi-
duals, to prove what was the conversation upon the one
side, and others are called to give a statement upon the
i other. If, on the other side the men called gave, a dif-
ferent complexion to the conversation, and if in the
course of it he mentions a statement made by John Oakes,
a person who might have been called as a witness, but who
was not examined as to any part of the conversation, and
the witness being asked as to the conversation, says yes,
I do recollect it, and John Oakes made remarks, John
Oakes, he apprehended, could nut be recalled so as to say
he had n.t made those remarks, and still motes, he could
not be recalled to disprove something which he had the
opportunity of disproving in the first instance. The
Counsel for the Crown could in their original case have
given any explanation of the transaction which they might
have thought necessary. They had that man ( Hopkins)
in the box for that purpose, and they did not examine him.
An account had been given on one side, and then upon the
other. The Crown, therefore, could not call a witness to
disprove a part of the case of the defence which they
might have pulled out. If the one side proved one new
fact, and the other proved some other new fact, he appre-
hended that gave the first no right to call back a witness
to, disprove the new fact stated in the second instance.
Mr. Kelly considered that the evidence of Hopkins was
inadmissible on the very clearest grounds. In this case
words were things. This was the very essential part of the
case upon which the life or death of the prisoner depended.
The question was, what vaTs the intention of the multitude
in attacking the Westgate ? This could be only collected
from what was said at the time, thus making every word
that was uttered upon the one side and the other an essen-
tial and important point of the transaction. In cast's of
high treason they were bound to produce all the witnesses
in their power that were cognizant of the transaction.
Here the witness had been examined before as to all that
he had learned of that transaction. Here he might have
been called upon, in the first instance, as to what he had
known about the matter. He apprehended that anything
said was not merely a specific declaration, but it was a
fact in the case, and constituting a part of the transaction.
He submitted that whatever was said on one side or the
other should be proved in the first instance. If this wit-
ness was permitted to come and say he did net ask such or
such a question, they, for the prisoner, might call another
witness too, and prove that he did ask such questions ;
and thus they might go on calling half dozens of witnesses
on each side for the mere object of contradicting each other.
The Attorney-General said he should confine himself to
this point—whether or not this evidence in reply was that
or was not which they had a right to produce. He sub-
mitted that it was strictly evidence in reply. The first
question they proposed to put to the witness was, whether
be asked the insurgents what they wanted? Now, he
wanted to know could not that question be put to Edward
Hopkins ?
Judge Parke—That is not exactly the case. It is whe-
ther you can get the answer to it.
The Attorney. .General—That is the first question.
Chief Justice Tindal—That is the only question you want.
The Attorney-General—We should be contented by
asking that.
The Chief Justice said that he considered that the ques-
tion should be put. In ci iminal as well as in civil cases,
where a matter arose ex improviso, and that no man could
have foreseen, it was but right that the Crown as well as
the plaintiff should have an opportunity of explaining that
matter, though bound to make out their case in the first
instance. Even if the Crown had examined Hopkins all
through the transaction, they never could have foreseen
that a witness for the prisoner would have referred to Hop-
kins as making a particular declaration, and therefore it
never could have occurred to them to put this question.
Judge Parke stated the• if it could have been foreseen
Hopkins could not be recalled. But here a new fact was
stated by the witness for the prisoner.
Judge Williams said that the Crown must be confined to
that question only.
The Solicitor-General (to witness)—Did you ask any
of the mob on the 4th of November what they wanted ?
Witness—l did not.

i Sir F. Pollock then (addressing the Jury) said-1 have
I but one word to say to you, Gentlemen, with respect to
the evidence which has been called in reply. My Learned
Friend Mr. Kelly will, I am sure, do justice to all the
topics which may arise on that part of the case as well as
I the rest of it. I should be sorry to abuse that indulgence
' which I have already received from you and my Lords, in
the long, very long address which I made to you yester-
day, if I now occupied your time more. My address to
you now arose simply from an anxiety that no part of the
defence of the prisoner should be prevented by anything
that has occurred this day. I shall make but this simple
remark, that Hopkins and a number of other witnesses that
might have been called were not called. They were, with
Mr. Williams, in the list of witnesses for the Crown. Mr.
Williams was not examined, and you may judge of the
value of the testimony that has been given by the evidence
of those who might have been called and yet were not, as
well as by those who have been called and examined. You
can do this with effect when searching into the truth of
that which really did occur.
Mr. Kelly then rose to sum up for the prisoner—My
Lords, and Gentlemen of the Jury, the time has at length
arrived when the duty devolves on me of addressing you in
defence of the life of the prisoner at the bar—for, Gentle-
men, his life is committed to your hands—a duty by far the
most solemn, the most painful, and the most awful which I
have ever yet been called on to discharge. Gentlemen, if
I bad felt that the fate of the prisoner depended on my
ability to perform the task allotted to me, I never would
have consented to place myself under so fearful a responsi-
bility. But I have felt that he is amply protected by the
law and by the Constitution of this country, by enlightened,
learned, patient, and impartial Judges, and above all, un-
der Providence, by that mighty and impregnable rampart
which yet encompasses and covers every subject of teie
realm, guarding him in the enjoyment of his rights, his
liberties, his property, his character, and his life—a Jury of
his fellow-countrymen. Gentlemen, it is to this protection
that I commend the prisoner at the bar, and,in the observa-
tions which I shall feel it my duty to make to you, let me
beg you to bear with me if I, perhaps from inadvertence, or
from the pressure on my mind, perplexed and troubled
as it is by the responsibility which rests upon me, I
should, by repetitions, which may appear to you needless,
or by calling your attention to matters which you may deem
to be irrelevant, press rather too heavily upon your patience
and attention. Let me in the outset, Gentlemen, beg your
forbearance, because I hope, nevertheless, by calling the
attention not only of their Lordships, but of you also, to
the law of Ent land ns affecting the dreadful charge now
brought against the life of the prisoner at the bar, to con-
vince their Lordships, and every one of you now assembled
to try this great question, that by that law the prisoner is
clearly entitled to a verdict of acquittal at )our hands.
From some remarks that fell from the Learned Attorney-
General in his opening, it seemed to me that he antici-
pated we ought in some measure to deviate from the direct
and honourable course before us in defending the prisoner
with something like an attempt to induce you to depart
from the strict letter of the law. I may have mistaken
my Learned Friend ; but if I did not, let roe assure him,
your Lordships, and you, Gentlemen of the Jury, so far
from it, I implore you solely to be guided by the law in the
verdict which you give. It is in the law, in the strict,
undeviating predominance of the law, that I place my
hope, my only trust ; and my prayer to you, therefore, is
that you be governed by the law—that you adhere to the
law alone—because by that law I shall prove to you,
clearly and satisfactorily, that the prisoner, whatever be
the extent of his crimes and misdemeanours, however high
his crimes and misdemeanours for which in another form he
can be, and yet may be, indicted and punished, by the
law of high treason is as guiltless of high treason as any one
of you, Gentlemen, whose duty it will be, I trust, ere long
to pronounce him so. Gentlemen, if the prisoner at the
bar be at this moment in any jeopardy, it is from the
danger of the law not prevailing, or from its not being
clearly and perfectly understood. It is from this that the
facts now in evidence before you, which undoubtedly dis-
close a case of guilt against him, which prove him to have
committed a great and serious violation of the law which
in another shape subjects him to indictment and punish-
ment, should induce you to punish him, not for that crime
which ho has really committed, but for that greater and
higher degree of guilt which is imputed to him by this
indictment. I therefore, Gentlemen, earnestly claim your
attention whilst I proceed to make you, so far as I
can, and subject to the correction of the Learned
Judges, acquainted with the law as it affects this high
and serious charge, and if fortunately I cats succeed
in making you clearly understand what the law is as affect-
ing the charge of high treason laid in this indictment, I
undertake to say that the most doubting amongst you,
if there be any one so doubting when he refers to the
evidence of the witnesses, will not only find that the
charge has not been proved, but that it has actually been
~.
is t
h oefduty I
all doubt that the Crown high
disproved by the witnesses for the Crown themselves. It
is the duty of the Crown to establish
beishtfhe r
e charge
io
treason as laid in this indictment
t whether
not
o u succeeded
a greatof the prisoner to rebut it, and I shall show you beyond
guidc the ws, f
i
and in i
aeas
lt
aaribmt li s, i
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here
: take
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for
in
g Inc thisque proof.stion i s nLoet?'
riot has been committed—the
question is not even whe-
ther blood has been shed—the question is not whether
high crimes which are sought to be punishable by the law
have been perpetrated—but the question is, whether the
prisoner at the bar has been, by legal and competent
witnesses, proved to be guilty beyond all reasonable
_doubt in he minds of any one of you here prescat of having
levied war against her Majesty with the treasonable
intentions stated in this indictment. And, Gentle-
men, it is important that no confusion or uncertainty
should exist in your minds as to what the law is in
this case, for it requires many propositions to be esta-
blished. The Crown cannot succeed in this indictment by
establishing one proposition only, but it is required to es-
tablish several, to which I am about to call your attention,
and they all must be proved to your satisfaction by compe-
tent legal evidence. Let me say, then, that is not merely
by what is called levying of war that Mr. Frost is to be
proved guilty of high treason. It is not because Mr. Frost
may have been proved to have been himself at the head of
an armed band, or vast and alarming numbers, who marched
through the highways of the kingdom into the town of
Newport, and there committed an outrage which may
amount to a levying of war, that is not enough to satisfy
the law of high treason. The Counsel for the Crown must
satisfy you that the prisoner at the bar has levied war__
certainly, that is the first point ; but then they must pro-
ceed to satisfy you that he has leeied war against her Ma-
jesty. It is not enough that he conducted an armed baud
and a multitude of persons, nor that he acted in concert