The Sun.
London, England, 1840-01-25 00:00:00

COURT OF EXCIEQI!:,R.
DAY.

CASE OF FROST, WILLIAMS, AND JON
This inoriiin.4- the ab,)ve case came on to be
the twelve sludges, upon the poit:t of Itw w'!iol,
by Sir Frederick Pollock in favour of the above prix. iti
The interest xeitesi scented to be very great, as the Coin t eas
very match crowde,l. Under the .e,i' occupie,.t by the leading
Counsel sic observed Mr. Feargus O'Connor, who irequently
conversed with Sir F. Pollock before the proceedings com-
menced.
At fifteen minutes past ten o'clock, the Judges entered the
Court, and took their seats upon the Bench.
The ATTORNEY-GENERAL then rose and said—My Lords,
may I beg your Lordships will intimate in what order the argu-
ment in these cases should be conducted. There were three
convictions had, and I should wish to know how many Counsel
may be heard, and in what order with respect to the whole pro-
ceedings.
Sir F. POLLOCK.—My Lords, I appear in this case on be-
half of the prisoner Frost; the other two cases are somewhat
different as regards the statement—Air. Kelly appears here on
behalf of Zephaniah Williams, and Sir William Follett on
behalf of Jones. lam wholly anxious to consult the con-
venience of your Lordships, but at the same time not
to lose the benefit of making a claim of having this point
argued in the. same manner before this Conrt as had taken
place in the Court at Monmouth. It has been held that there
were two Counsel assigned to each prisoner charged with the
crime of high treason, but I shall be willing to agree to any
course of proceeding wherein the ends of justice will be more
speedily accomplished.
Chief Justice DENMAN—I understood the Counsel on each
side had arranged the mode of proceeding.
Sir F. PoeLocic—We had arranged, my Lords, that one
Counsel should be allowed to speak for one of the prisoners—
that I should address the Court on behalf of Frost—that Mr.
Kelly should then proceed on behalf of Zephaniah Williams,
and that Sir William Follett should call their attention to the
case of Jones.
Mr. Keeey—l was instructed to appear for each of the
three,prisoners, but I think it better for one Coui.sel only to be
heard for each ; but I wish to observe that if I abandon now
that course which I conceive to be right, it may not be consi-
dered hereafter as a precedent to be followed in any future
cases of a similar nature, and I should pray your Lordships not
to come to any decision in the matter.
Chief Justice DENMAN—I think the course pointed out by Sir
F. Pollock will be the fairest and best that could be pursued.
The ATTORNEY GENERAL—I would not venture to inter-
fere further than to know what is your Lordship's pleasure, as
I was not aware of this arrangement, until I came into Court
this morning, and I protest as yet I don't know precisely what
that arrangement is.
CHIEF JUSTICE DENMAN—Sir F. Pollock called upon me
on Saturday last, and stated the point which he had raised in
this case. and he then expressed a wish that each case shou:d
be heard separately and distinctly, and that one of the party
concerned should not be bound by the decision come to in the
case of another.
sza F. Poenocx— I shall first state the arguments I shall
make in favour of the first prisoner Frost, and the Counsel on
the other side can reply.
The ATTORNET.GENERAL—The Counsel for each of the
prisoners should address the Court consecutively ; and my
Learned Friend, the Solicitor-General, should have a right to
be heard after I had addressed the Court.
The Couivr—Yes ; provided they don't use the same
arguments.
Sir F. Poteocx—With respect, my Lords, to a general
reply, inasmuch as the cases certainly resemble each other, I
beg to say that I have not in any degree considered those points
that will arise in the other cases. r don't mean to reply in an-
other case in which I am not retained, and to which I will
frankly say I have not given any attention. There may be
separate replies in the two cases, although these cases may be
precisely similar. In the case of Frost, I apprehend you will
allow me to reply for hint ; and the course 1 would suggest is,
that you would permit me to answer the Attorney-General.
Mr. KELLY—My Lords, I wish the course to be pursued
would be exactly determined. I would, with submission suggest
dm+, in the first case of Frost, Sir F. Pollock would address the
Court, and that the Attorney-Gesieral would reply. And that
I should be entitled to speak on behalf of Williams, and that 1
should then be replied us by a counsel on the opposite side;
then that Sir William Follett should argue the case in favour
if Jones and be replied to in due course.
Sir F. Por.r.ocic—The course I wished to have adopted was in
consequence of a communication I had with your Lordships. I
am not instructed to act as counsel for any person but Frost.
Mr. KELLY—I am desirous of consulting the wishes and
convenience of your Lordships. If the other course be adopted
the two last prisoners will lose the benefit of a reply from their
counsel. Let each case be argued distinctly ; such was the
course that we understood would be taken. s.
Chief Justice DENMAN—WeII, let each case be distinctly and
separately heard.
Sir F. Poeeocx—My Lords, I can assure you most sin-
' serely that there will be no disposition on my part to prolong
this discussion longer than the exigency of the case requires.
Sly learned friends who have been engaged here for the other
drisoners, will attend to the arguments I shall have the honour
rf making, and shall take a note of them, with a view of ab-
,taining from a repetition of them, or dwelling unnecessarily
on any argument that had already been laid before the Court.
shall trouble your Lordships by reading the particulars of
the case as it stands, before I proceed further. " The prisoner,
John Frost was indicted for high treason; there were two
counts in the indictment, as he was charged with levying war
tgainst the Queen in her realm ; and on the 31st of
December, 1839, lie was indicted upon that charge ; the
srisoner pleaded not guilty, and all the other prisoners
severally pleaded separately. Mr. Frost was then
iiut upon his trial, and the Jury were sworn. On the first
witness being called, and before he was sworn, the Counsel on
ais behalf made an objection to the entire proceedings, grounded
sport the fact that the list of the witnesses and the Jury that
were to try him were not served upon the prisoner, at least
en days before he was put mon his trial. By the statute of
.tone, sec. 7, it is clearly laid down that the names and profes-
sions of the witnesses to be examined in cases of high treason
.siould be delivered to the prisoner ten days before his trial, in
;he presence of two or more witnesses. In the 7th of Wm.
i 11., chap. 3, it was also laid down that all persons accused of
'Ugh treason should have a true copy of the indictment, but not
the names of witnesses, five days, at 1-ast, before the prisoner's
vial would come on, for the purpose, as it stated, of advising
with his Counsel upon the matter, his or their agent or
,gents requiring the same, and paying all reasonable fees
that might be demanded. In 6th George IV., chapter
sO, section 21, it is laid down that a list of the Jury should
be given at the same time with a copy of the indictment,
it least ten days before the prisoner's trial, and in
the presence of two or more witnesses. In the case of
Frost, the bill of indictment was found ;on the 11th of De-
cember, 1839, and a copy was served upon prisoner; and on the
17th of December, a list of the witnesses, which were to have
been produced, was served on each of the prisoners. In the
opinion of the Counsel for the Crown this was considered a
good service. With regard to the case of Zephaniah Williams
and Jones, I have nothing to do with them. I have to call
your attention to the arguments 1 intend to make use of, but
before I begin, I wish to state that I consider myself here to-
day (and I have a right so t do, especially after what has been
said), as arguing this objection in the same manner pre-
cisely as if I was before the Court at Monmouth, and
that the subsequent proceedings which then took place,
are not in any manner to prejudice the case of the prison-
er, whom, you must consider, as it
,he stood before your
Lordships not convicted, but standing for his trial, and sup-
posing the objection to the witness ' Simmonds" being ex-
amined to have been just made by the prisoner's Counsel Your
Lordships will then be pleased to view me as if I were making
use of the same arguments as I were in the Court at Mon-
mouth. I shall now endeavour to hasten over that part of the
case which lass already been presented to the Court at Monmouth,
and shall occupy as small aportion of your time as possible in call-
ing your attention to the main points then discussed. It will be
then my duty to enter more at length in calling your attention
to anything new, which I may deem necessary to enter upon.
Two questions seem to arise upon the point reserved, the first
is, as to the correctness of the proceeding itself, in not deliver-
ing a list of the witnesses to the prisoners ten days before the
trial, but five days after the indictment was delivered to them.

,glue:i before
issed

The second question which arises is, whether it was competent
for the prisoners to take the objection at that moment when
the case was called on. I ?hall then procer dto call your LVen-
tion to the authorities which I mean to rely on, first as to
the construction of the statute of Anne, and the other
statutes which were in force before that statute passed.
'Secondly, as to the authorities which exist in England, either
with reference to that statute, or any'dther case that could
throw any light upon the law as r, garded high treason ;
Thirdly, with reference to the Scotch law upon the subject ;
and this I consider to be very important. Iha statute of Anne
communicated to Scotland the law of high treason in England,
but borrowed from Scotland certain matters of proceeding,
which it will be necessary for them to consider.- It borrowed
from the law of Scotland the necessity of delivering a list of
witnesses, together with a copy of the indictment at the same
time, to the prisoners charged with high treason but I believe
it did not borrow the period of ten days beore trial.
The facts of this case are already laid before your L
The bill was found on the 1 lth of December last, and on the
12th a copy of the indictment and a list of the Jury were de-
livered in the presence of two witnesses, and in five days after-
wards a list of the witnesses was also delivered in the prese nee
of two witnesses—whether that is a compliance with the pro-
visions of the statute of Anne, and whether delivering; a copy
of the indictment and a list of the Jury five days before the
list of the witnesses was delivered was in compliance with
the statute requiring that all the three should be delivered
at the same time. The statute of William, I mean the 7th and Sth
of William the Third, chap. 3, had provided that the accused
party should have a true copy of the whole indictment, but not
the names of the witnesses mentioned in the statute of Anne,
but those witnesses whose names were on the back of the in-
dictment. I don't know whether it was by ancient usage, or
by a direct and positive enactment of the statute that the mints
of the witnesses shall be endorsed on the back of the in-
dictment, that all such should be produced at the trial;
but it is very clear that the witnesses mentioned under the
statute of William are not the witnesses mentioned Under that
of Anne. This copy was to be delivered live days before the
prisoner's trial, but subject to the condition of his or their
attorney requiring the same, and paying the officer his fees.
In the same statute a direction is positive with respect to the
delivering a list of the jury two days before the trial of the
prisoners; that part of it is absolute, without any condition
whatever, and free of expense. Then comes the statute of
Anne, which identifies the law and the practices of England
and Scotland with respect to high treason, enacting that what-
ever is treason in England shall be treason in Scotland, and,
having made a provision for the introduction of a grand jury
into Scotland, it then proceeds to enact, apparently borrowing
from the Scotch law, ;that the list of witnesses and jury, and
copies of the indictment, shall be delivered together.
That was a distinct and positive enactment, standing wholly by
itself, and wholly irrespective of the time when the proceed-
ings were to take place.: It was a distinct substantive provision,
declaring emphatically that the two lists should be delivered
at the same time, with a copy of the indictment, to the party
indicted; and if no other provision had been made, the statute
of William would have been still in operation as to the indict-
ment, and would have had to have been delivered) five days
before the trial. The statute of Anne substantively and dis-
tinctly said that the two lists must, be delivered at the same
time, with the copy of the indictment, to the party indicted.
The question was, had these words " at the same time" a clear
and undoubted meaning, independently of the following
Section. which enacted that the lists shall be delivered ten
days before the trial took place. He would contend that
they had. There were here two distinct things ordered to be
done—two distinct and positi. e enactments, one directing abso-
lutely that the two lists should 'hi -delivered at the same time
that the copy of the indictment was delivered ; and the second
enactment directing the peri,,d at which such delivery should
take place. It enacted that a copy of the indictment, wi h
such lists, should be delivered ten days before the trial, so that
in this last section the enactment of the preceding section with
regard to the simultaneous delivery of the lists, and the copy of
the indictment—that such was the plain construction of that
Act of Parhament it was scarcely possible to imagine that sny
doubt could exist in the mind of any lawyer.
The second
Statute to which he would direct their Lordships' atten-
tion was the Act 6 George IV., cap. .50, commonly called Peel's
Act. He wished to draw the att,nt;on of their Lordships
to the 21st section of that Act. They would find that that Act
was passed w.th a view of colfeeting into one statute all the
different provisione which were to be found in various acts and
decisions that might be considered avilicable to any matters re-
lating to Jurics, and of those consolidating into one Act the