The Sun.
London, England, 1840-02-04 00:00:00

TM- SUN, LONDON, TUESDAY, FEBRUARY 4, 1840.

had been decided in the country. Since then the '
objection had been decided. That understanding,
as be was authorised to state most distinctly,
was, that they were to be put upon the
same footing, provided the objection was sustained
and approved of by a majority of the Judges, as if the ma-
jority of the Judges at the trial being pressed for the deci-
sion had decided in favour of the prisoners. If the majority
of the Judges at the trial had decided, upon
being pressed for their decision, they must needs have
instantly been acquitted. It was an objection fatal to
the whole proceeding —it applied to every one of
the witnesses. The Jury were impanelled—the plea
had been pleaded—nay more than that, again they
could not have been tried. That was the first
and principal ground he wished their Lordships
to consider, and the other was altogether independent
of the former. The Counsel for the prisoner had a
right to press for judgment at the trial, and it now turned
out, because they knew what the Judges had &u—
-lt turned out, too, that two out of those three
Judges were in favour of the objection made
at the trial, and of the party waiving the
objection until after arraignment, and plea pleaded.
It consequently followed as a matter of absolute
demonstration, that if they had exercised their right
of pressing the objection at the trial at Monmouth—it
consequently followed as a certainty, that the objection
would have been sustained, and the trial at once
put an end to. He (Lord Brougham) knew, in point of
fact, that that was not an opinion taken up after the argu-
ments in town, but it was their opinion at Monmouth,
at the trial. A stronger case—but infinitely strength-
ened by the bargain made with the Counsel—a
stronger case for absolute acquittal, in the
whole course of his professional experience,
be confessed he had never known.—(Hear, hear.)
He had stated to their Lordships that he should
add one word explanatory of his regret at what
had taken place. He repeated that it was deeply to be
lamented upon such an important question criminal jus-
tice should have been so defeated. Whose the fault
might have been he did not stop to inquire ; but it was
due to a most experienced, able, and excellent officer of
the Crown, that he should add that his Learned Friend
Mr. Maule, the Secretary for the Treasury.—(A Noble
Lord—" Tne Solicitor for the Treasury.") He begged
pardon, it was the Solicitor for the Treasury he meant
to express his commendation of.—(Hear, and a laugh.)
He was a Gentleman who had served under various
Governments without being offensive to any, and with
the good-will of most. In this case he had not served the
list of the witnesses at the same time with the copy
of the indictment. This was an om'ssion which was
easily accounted for ; no doubt it was done in the
hurry of business, and without reflection. But the
nature of the objection was such that if it had been taken
at the proper time, there would only have been a post-
ponement of the trial. The Counsel for the accused had a ,
right to take the objection at the time which would
best serve the interest of his client. But what if the
prosecutor was aware of the irregularity ? (Hear.
bear.) It was stated before the fifteen Judges
that Mr. Maule was quite aware of it.—(Cries of
" Hear, hear, hear")—that the Counsel for the
prosecution were aware of it. In fact the Judges were
aware, before they went down on the Commission, that
the objection would be taken, and they went with the
expectation that they should have to come back
for a month.—(Hear, hear.) They never dreamed
that for the purpose of keeping Members of Parliament
lour weeks longer in the country, the risk would be
run of allowing j'istice to be defeated.—(Hear, hear.)
However, a great error of judgment had been coin-
' mitted, which must lead to a complete defeasance of the
criminal law in this case. He had several other petitions
to present to their Lordships, and he thought it necessary,
indeed it was kis duty, to inform them that numbers of
his countrymen had done him the honour of sending
him addresses, begging him to exert his influence in
favour of those persons, and they had also done
him the honour of sending him addresses to for-
ward to the fountain of mercy, which he had done.
He believed ho might say that he had presented peti-
tions to the Queen upon this subject to the amount of
about 100—one of them signed by 54,000, another by
upwards of 40,000, and another signed by upwards of
20,000. All this showed there was an understatement
in the petition, which estimated the number at 200,000.
He (Lord Brougham) considered, looking at the cir-
cumstances of the case, that these unfortunate indivi-
viduals were entitled to a total release, an extension of
mercy it could not be called, because he conceived that a
total release was a legal right and justice. The addresses
that were presented to the Crown, proceeded on three
different grounds. One class prayed the extension of
mercy upon the special circumstances of the case—an-
other upon' the illegality, or as some called it the
inexpediency, and others the unlawfulness of the
conviction ; and the last proceeded upon a
view of the evidence that the matter had not been
rightly decided upon by the Judge and Jury.
With the first ground he agreed, but he differed from
the second, and he felt convinced that he should have
the unanimous concurrence of that House, as a
Court of Judicature, when he stated the objection
which he had to the second and third grounds.
He was against all capital punishment for trifling
offences, and even for great offences, where the public
feeling was against them. He had assisted their Lord-
ships in putting an end to capital punishment in
cases of larceny and forgery. But there were cases of
an atrocious nature—murder and high treason—in which
he considered it necessary that life should be taken away.
It was for the purpose of preserving life that lie
would take it away—it was sacrificing one life
in order to preserve many.—(.Hear, hear, hear.)
and therefore he did not agree with those who said,
that in no case ought there to be an exception to the
rule of abolishing all capital punishments. But upon
the third point there could not be any doubt. It was
absolutely necessary for the administration of justice
that every investigation should be carried on, firmly and
deliberately ; and he held it to be an intolerable pre-
sumption in any class of men, be they ever so power-
ful, or ever so numerous, to sit in judgment upon a Jury,
and to say, had we, who have read the evidence in a
newspaper, been in the jury-box, we would have arrived
at a different conclusion from them—from the twelve
men who, on their oaths, with the assistance of an ex-
perienced and enlightened Judge, and with the incalcu-
lable benefit of having seen and heard every witness give
his testimony upon his oath. He held it to be intoler-
able to object to the verdict of a Jury, directed by a
Judge who had heard the whole of the arguments.
He should have given an imperfect opinion if he had con-
fined his observations to one point ; and he was bound
to say that he had never put the case before one depu-
tation without finding that a calm statement of his objec-
tions found their weight. He trusted, therefore, that in
consideration of the extraordinary importance of this
matter, touching neither more nor less than the inter-
ference of the people with the administration of justice,
their Lordships would excuse him for having detained
them so long in stating au opinion which he believed
was the unanimous opinion of all whom he then ad-
dressed.—(Hear, hear.) He cared not, the matter
might be misrepresented elsewhere. He set a due
value on popular opinion and excitement where he
thought it was applicable—in cases of exped.ency, of
right and interest to the public, in which the people
were entitled to judge, but not in questions touching the
administration of justice by sworn Judges and sworn
Juries. He would, therefore, after having troubled
them so long, present those petitions, which were all of
the same nature, to the House.

The Marquis of NOM,' ANBY said that their
Lordships would readily suppose that if he arose merely
for the purpose of offering his individual opinion upon a
subject of that nature, in opposition to that urged by
his Noble and Learned Friend, with so much force and
with all the authority of his name, he should do so with
the greatest hesitation. But he had had an opportunity
of appealing on the question to that party to whom his
Noble and Learned Friend had alluded in the course of
his address—be had liad an opportunity of referring to
the Learned Judges who had given on the matter their
deliberate decision. He would be able to refer to that
decision not only in general terms, and in a matter
which might be supposed a loose one, but as his Noble
sftn
noe
u inga,e hadpwoht
oti
ohoadopo Ft communi-
catedthe
esnudtb,oj
subject,
hncitrot, the course
schoianuatresrneetficooro:
referred
dhf the
r e at
h e t
pre-
sided at the Commission at Monmouth, and he obtained
his permission to give the House the substance of those
communications which had passed between that
learned person and other parties on the occasion.
But before he would urge on their Lordships' notice all
the weight due to that authority, that they should not
listen to the prayer of those petitioners, he would say a
few words on that to which his Noble and Learned
Friend had alluded, viz., the unfortunate conduct of the
parties who had conducted the trial. His Noble and
Learned Friend stated that he knew not where the
blame of the proceeding rested, and he bad afterwards
alluded to a person for whom he (Lord Normanby) en-
tertained the highest respect, he meant the person who
had prepared that prosecution, and on whom, no doubt,
it was intended to make that blame rest. He would
say on behalf of Government, that it was impossible for
Government to trust the prosecution to any other than
to the Learned Gentleman who had conducted for so
many rears and for so many Administrations public
prosecutions of a similar nature. As to the time at
which the objection should have been taken, all he could
say was, that those who had been trusted with
the conducting of the case were convinced that that
objection of itself could be of no force or weight.
So much for that unfortunate error, which, from a per-
son of all the experience and character of the Hon. and
and Learned Gentleman, must be considered as such,
and which he most deeply regretted, but which did not
operate with any degree of hardship upon the prisoner,
but was occasioned by the desire to furnish him with
some information which it was thought he ought to
have on the first 'opportunity ; and let the result to that
objection be what it might, it was not complained the
parties had suffered any substantial injury from it. All
that was urged by his Noble and Learned Friend was
urged upon the day after the decision of the Judges by
those two Gentlemen, with intense anxiety, and they
stated verbally that the very objection now made was

considered valid by two of the Learned Judges who
presided at the Special Commission at the time, and
urged that it ought to have been decided at Mon-
mouth. He informed Sir F. Pollock and Mr. Kelly
that he was anxious to receive any representation they
chose to make on the subject, and should feel it his
duty on receiving such, to refer it to those Learned
Persona whose conduct were involved in the represen-
tation they made. He told them at that time the sub-
stance of the communication with the Learned Judges,
as far es he was at liberty to do so. He would now
read to their Lordships the communication received ,
from the Lord Chief Justice on the decision of the
Judges on that occasion :—" My Lord, I have the
honour to inform your Lordship that the arguments on
the three cases of the Queen v. Frost, the Queen v.
Jones, and the Queen v. Williams, closed this day be-
fore us, that the Judges after consultation, have come
to the following determination. First, a majority of the
Judges, in the proportion of nine to six, are of opinion
that the delivery of the list of witnesses was not good
in point of law ; secondly, a majority of the Judges, in
the proportion of nine to six, are of opinion that the
objection to the delivery was not taken in due time ;
but all the Judges agree that if the objection had been
made in due time the effect would have been the post-
ponement of the trial, in order to give time for proper-
ing and delivering another list. I shall have the honour
of waiting on your Lordship if you wish any thing fur.
ther." The result, therefore, of the determination of
the Judges was that the conviction was right. He
stated that communication to Sir Frederick Pollock
and Mr. Kelly. 'They on that occasion used, he
believed, the word " bargain ;" that was one of
the points to which he immediately directed the
attention of Chief Justice Tindal, who distinctly de-
nied that any thing of the nature of a bargain had
taken place. He would only say that Sir Frederick
Pollock and Mr. Kelly were in complete misunderstand-
ing as to the nature of the point on which the Judges
were then deciding, but that he never saw two gentle-
men more convinced that they were really right in their
recollection. They,in accordance with his recommenda-
tion, forwarded to him a memorial of considerable length
on the understanding that it should be referred to the
Judges. In it they stated that when the objection was
taken, John Frost, in the open Court, discharged them
from further interfering in his defence, he insisting that
he had a right to have the decision of the Judges upon
the objection at that time ; it went on to state that it
was after much persuasion that he allowed them to
appear for him, and Chief Justice Tindal said the
prisoner would not be prejudiced by the adjournment of
the question, but he would be placed in the same
situation as if the point had been decided at the Special
Commission. Upon receiving the memorial he con-
sulted with the Chief Justice, and he put the question
to him, whether Mr. Justice 'Williams and Mr.
Baron Parke would feel themselves bound by the opinion
of the Judges, although they were in the minority, and
lie reported that as a matter of course, upon the trial of
an indictment they would feel themselves bound by the
decision of the majority of the Judges. Therefore, the
whole came to this—whether in this particular instance
they should establish and confirm a wrong which could
never be repealed. The decision on the point in no
way depended on their discretion, and the Judges had
decided the point against the prisoner. With respect
to one statement in the memorial, the Learned Counsel
for the prisoners, it appeared, according to the state-
ment of Lord Chief Justice Tindal, laboured under
complete misapprehension. The Learned Judge stated
that he had said distinctly at the time, that he could
make no distinction whatever between that and the
other cases tried at the assizes. He moreover stated
that all the Judges entertained doubts, and if the law
had obliged them to come to a decision at the time,
' which it did not, that it was clear that on this
point the Learned Counsel for the prisoners ivere la-
hourin,g under misapprehension, and that they could
not have pressed for an immediate decision, they were
vet prepared to come to a decision withont much further
consideration, and without hearing the conclusion of the
arguments offered by the Counsel for the Crown. It
was therefore clear, said the Judges, that the statement
which had been relied on so much, that two of the
Judges who were on the Special Commission had de-
cided against the point, made no difference whatever.
The law must be taken from the majority of the Judges
when they had consulted together, and in their opinion
there was no ground whatever to entitle John Frost to
a free pardon. Lord Chief Justice Tindal, in answer
to that part of the memorial of Sir Frederick Pollock
which related to what fell from the Bench at the trial,
said that he had explained the position in which they
stood to the Counsel for the prisoners, that the Court
would reserve the point to consult the Judges on the
subject, and if the Judges decided in their favour they
would be in that case entitled to stand in the same po-
tion as they would have stood if the point had been de-
cided in their favour, they would be in that case entitled
to stand in the same position as they would have stood
if the point had been decided in their favour at the trial,
so that their Lordships would seethe point was reserved
for the decision of all the Judges, and not of the Judges
only who sat on the Special Commission. Mr. Baron
Parke also stated that on the Special Commission he had
said, in answereto the Counsel for the prisoners, that the
point would be reserved for the opinion of the Judges, and
if the opinion of the Judges were in their favour a par-
don would follow as a matter of course on a recommenda-
tion to the Secretary of State. These were the obser-
vations of two out of the three Judges who presided at
that time, and as far as Mr. Justice Williams was con-
cerned, what he had stated showed that he did not con-
template anything peculiar having been pressed upon
them. After reading these opinions of the Judges, ho,
together with his colleagues, were of opinion that the
conviction was legal. We were also of opinion that the
prisoners had had no substantial injustice committed
upon them ; but, taking into consideration the decision
come to by the Judges—looking upon the question
whether the extreme sentence should be carried into
execution or not, we could not help yielding, to a certain
extent, to all those differences of opinion, and upon
that ground it was that we determined that the extreme
penalty of the law should be carried into effect. In
stating this, however, he must be allowed to say
that it was that consideration, and that consideration
alone, which forced us to come to that conclusion. If
it had not been for those differences of opinion, and all
the communications which had taken place as to the
misconception of the prisoners' Counsel, which threw
doubt and difficulty and hesitation upon the case—if
they had not taken place, the opinion of my colleagues
and myself was, that never were lives more justly for-
feited to the laws of the country—( Hear, hear)—and
there would not have been the least hesitation, looking
at the atrocity of the crime, at the influence of the
character of the person, and the numbers involved in
this criminal design, there would not have been the
slightest hesitation in withholding any recommendation
to the Crown for the extension of the prorogative of
mercy, and we should have felt it our imperative duty
to have allowed the law to take its course. He had felt
it necessary VS make these explanations, and after them
he trusted their Lordships would consider that no
ground whatever had been made for their addressing
the Crown, praying her Majesty to grant a free pardon,
and that justice only could be done by inflicting the
extreme secondary punishment of the law, by transpor-
tation for life.—( Hear, hear.)
Lord WY NFORD then rose, and made a few ob-
servations, but in so very low tone, that it was with
great difficulty we could hear a word lie said. We
understood him to say that, upon no grounds, in his
opinion, were the prisoners entitled to a complete ac-
quittal. If they had a free pardon, Chartism would
increase. It was quite clear it would be a dreadful
failure of justice, if that were not done,which it was the
intention of her Majesty's Government to do, with re-
gard to these prisoners. He agreed with the course
which the Noble Marquis (Normanby) had taken, but
he could not excuse those who had had the conduct
of the cause, in acting as they did, when they knew what
was the effect of their objection.
Lord BROUGHAM said his Noble and Learned
Friend had totally mistaken him in thinking that he in-
tended to cast any blame whatever on Mr. Maule ;
he had intended to throw all the blame upon the Crown
Counsel, who were to blame in persisting that there was
nothing in an objection that had been decided by the
majority of the Judges to be a valid one. It was denied
ththe
t prisonersth e
wouldhad
h helde hoeuet any
e fi ted
ipte swt
ahsa t
utehe re
rctauseee
toef
that there should be a difference between the statements
made by the Learned Judges and the Learned Gentle-
men who were Counsel for the prisoners, but he was
bound to adhere to the statement made by the Learned
Judge ; he would, however, state his opinion—nay, his
conviction, that no case could be found wherein a Judge
had refused to give a decision when called upon by a
party. The prisoner's case might be compromised by
his objection, without being decided upon at his trial.
The prisoner might object to be convicted, and be
mheigaht dfateamlaend thatne,sh neualdol•hejeccdtn
decided
he
evdat
the
ethmouogmhetnmt
;might
this case two out of the three Judges had little or ne
• doubt as to the objection, acrd the prisoner having a
tight to press for their decision, had it been then
given, they would have been acquitted ; they were
now to suffer because the Judges had not decided when
the objection was taken.

The LORD CHANCELLOR said the usual course
had been pursued upon the present occasion. The
Learned Chief Justice reported that, when an objection
was taken before a Judge who presided at the trial
of an indictment, if he
the three Judges being had any doubt upon
the matter he decided against the prisoner, reserving
to himself the opportunity
of being set right by the
Judges. Even in the ease which bad occurred, two of
in favour of the objection, but
having doubts upon the matter, reserved the point for
the consideration of their brethren. Of what use would
it be to reserve a point at any time unless the opinion
of the majority
of the Judges were to prevail ?
Lord BROUGHAM presented several petitions
with a similar prayer. Ho would not detain the House
further than reiterating that the three prisoners were
now to suffer almost the last punishment of the law be-
cause the Judges had not decided a point of law at the
trial.

SOCIALISM.

The Bishop of EXETER presented a petit on
from the President, Vice-President, and Members
of a Literary Institution, praying the House to
take measures for putting an end to the atroci-
ous doctrines of Socialism. Ho would take that
opportunity of staring that on his road down to the
House that night, he had been most earnestly re-
quested by the Most 11..verend Prelates the Arch-
bishop of Canterbury and the Bishop of Loudon, to
postpone his motion until to-morrow. They were
very anxious to be present at the discussion, he would
therefore postpone his motion. _ _ _

Lord VI..YN FORD hoped that the Police of Lon-
don would be more active than the Police of Bir-
mingham, and put an end to the propagation of such
doctrines by prosecutions.
The Duke of WELLINGTON presented a peti-
tion from the comity of Southampton to the same
effect. As Lord Lieutenant of the county he had
advised the Magistracy to proceed against those insti-
tutions whenever they committed any violation of the
law. He trusted the Government would approve of
his conduct on that subject, and that they would
feel it their duty to make the same repre-
sentations in other parts of the country. The Noble
Duke concluded, by moving that the petition should
lie on the table.

Several petitions having then been laid on the table
of the House,
The Marquis of NORM ANBY said that, as the
Noble Duke stated that the Government seemed to have
approved of the course he had taken on the subject, he
(the Marquis of Normanby) should say for his part,
that nothing was more judicious than the course which
the Noble Duke had recommended—that of advising
gentlemen to prevent their servants from sharing in
those doctrines, and of informing Magistrates on tho
subject that they might know how to proceed against
them. Nothing, he should repeat, could ba more judi-
cious, and he should be very happy to receive from the
Noble Duke any communication he might have to offer
on the matter.