The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1840-01-28 00:00:00

THE QUEEN V. FROST AND OTHERS.

The judges met a few minutes after ten o'clock this morn-
ing to hear the arguments of counsel on the point of law.
reserved at Monmouth on the trials of Frost, Williams, and
Jones, for high treason. On the judges ta!iing their seats,
The Anorney-General applied to their lordships to deter-
mine in what order the counsel were to he
-Sir F. Polloek -said for the prisoner Frost
alone ; his case dlfferedsotriewhat from that of the others.
His learned ~friend. Mt% • Kelly, appeared for the .Prisioner
Williams, and Sir William Follett for the prisoner -Jones,
He (Sir 'Pollock)! hOped-LjivioSt"ankibtislyildpek that the
prisoners would not lose the benefit of their-lordships hear-
ing two counsel in each case, just as if each prisoner stood
alone... .

Lord Denman.—We understand that some arrangement
has been made by the counsel on both sides.
\lr. Kelly understood that their hirdships had been pleased
to say that it would suit their convenience that the case of
each prisoner should be taken separately.

-
Lord Denman said that he had intimated to Sir -Frederick
Pollock, when that learned counsel applied to him, that in
his (Lord Denman's) opinion, the best course of proceeding
would he for the court to hear one counsel on behalf of each
prisoner, and then, if necessary, to call on the Attorney-
General te reply.
The Attorney-General said he felt bonnd to claim, on be-
half of the Crown, liberty for his lehrned friend, the Solicitor-
General, also to address their lordships. his learned friend
would be in town befbre the arguments could be concluded.
He thought they could not refuse to hear the Solicitor-Gene-
.ral after

Lord Abinger—l do net think that we can object to bear
more counsel than one; but in that case it would be advis-
able for. learned gentlemen not to repeat and follow up the
same line of argument. _ _

Sir F. Pollock could assure their lordships that there was
lo disposition on the part of the prisoners or the counsel to
prolong the discussion. He only wished impartial justice to
Jeadministered.

After some further discussion, of no interest in its details,
it was arranged that Sir F. Pollock should be heard on be-
half, of
.Frost; Mr. Kelly on behalf of Williams, and Sir W.
Follett on behalf of Jones; and that the• Attorney-General
should have the.right to reply to each separate ease ;' that in
fact, each case should be separately and distinctly argued and
deeidecL

7.7§1; F. Pollock then procOsded to address their lordships
on behalf of the prisoner Frost, and commenced by reading
the case reserved for the opinion of the fifteen judges.
[Our readers will find in our report of the trials at Mon-
mouth the circurustgrices on 7hich Sir Frederick' Pollock
appealed to the court for its opinion.]

The learned counsel then proceeded to say that he consi-
himself precisely in the same situation is if he were before
the Court at Monmouth, and as if Mr. Frost had not been
convicted-4 any offence, but was simply standing at the oar
for his trial, and objecting to the competency of the witness
Simmons, to be examined under the circumstances under
which that witness was produced in court. Two questions
arose upon the point of law which had been reserved : the
first was, as to the correctness of the • proceeding itself, the
delivery of a list of 'witnesses ten days before the trial, but
live days after the delivery of a copy of the indictment and
the list-of the jury. The second point was, whether it was
competent to the prisoner to take the objection, if the objec-
tion could arise out of the matter, at the moment that he did,
when the Witness was called. The statute of Anne commu-
nicated to Scotland the law 'of treason in England, but bor-
rowed from the law of Scotland certain matters regulating
the form and mode of proceeding, amongst others, the
necessity of delivering a list of the witnesses contempora-
neously with the indictment, though not the period of ten
days. It enacted that " when any person is indicted for
high treason, or misprison of treason, the list of witnesses
that shall be produced on the trial for proving the said in-
*dictinent. &c., be, given at the samQtime that the copy of the
indictment is delivered to the party indicted." That was
a distinct and positive enactment, standing entirely by itself,
wholly irrespective of of the time before the trial when this
was to be done. It was a distinct and substantive direction
that the lists and the copy of the indictment should be deli-
vered at the same time. The question here was, whether
" at the same time" had a distinct, precise, undinibted mean-
ing; independently of what came next=namely, an enactment
prescribing the time prior to the trial at which all these
must be delivered : for the statute went on thus, " and that
cdpies of all the indictments- for the offences.aforesaid, and
such lists, shall he delivered to-the party indicted ten days
before the trial, and'in the presence of two or more credible
witnesses, 'any law or statute to thecontrary.notwithstand-
. ing,." He contended that there were two things to be done.
_One prescribed absolutely that the lists should be delivered
at the same time With the eopy of the indictment, and the
second enactment, which prescribed the period, did not for-
get the preceding one, for it stated that the " copy of the
indictment, with such lists, shall be delivered ten days be-
fore the trial." He submitted, that upon the plain construc-
tion of the act, it was scarcely possible for a 'doubt to exist
in the mind of any lawYer.
[Sir Frederick Pollock then quoted. several authorities in
support of his construction of the laW.]
Lord Denman said that with all respect for the authorities
cited, he was doubtful whether they. ought to be received.
He thought the cases should be Clear and distinct with re-
ference to the ease before- them.

Sir F. Po'thick then continued at great length to argue this
point; and, in conclusion said, he was confident that when
their lordships had considered all the cases that had been
put, and all the principles he had advanced, they --would co-
incide in his, opinion, and say the proper time was when
the witness was put into the box.
The Attorney-General argued the case on the part of the
crown. Ile thought that no one.would deny that his learned
friend did well in 'hiS objection till the jury had
•been 'sworn. Ile might, howeveri- have taken it most un-
questionably When Mr. Frost was called on to plead, or when
he (the Attorney4leneral) had moved that Mr. Frost should .
have tirSi taken his, turn. But rib-objection had been made
in one,or other of those stages, and for this reason, that if
the judges lad'- then held 4t to he valid, there would have
been a posttiOneMent,: if notan abarfonirient-Of the trial. It
could not then have been brought forward to defeat the ad-
ministration ofj-i-otlee, and to prevent a person charged with.
guilt froM -re iving correction and punishment. The ques-
tion was; wh ther the objection was well fourilied, whether it
rotibe tAke kfte.r the Jttry -had been chatted with fin! in-
dierrireht. 43ht whateveemighe be the result. of this delibera-
tionc'it- would
,give him heartilt satisfaction to know that
the alleged illegility could het have precluded any injury to
the accused party ; on the eontraty, he thereby de facto en-
joyed an advantage—he had' a greater opportunity - of pre-
paring for the trial than he was by law entitled to. Now,
what was the 'objection? Why, his learned •friend 'had-said
that there had been,no list of withesses.secved ;• but that was
not the fact; for there had Leen such a list defacto served on
the 17th of December. That list of witnesses was bond fide
served' in pursuance of the statute. If it- had not been •
strictly served simultaneously with the other two lists, and
within the time, it'had- nesierthelesS been' served ten days
before the-trial, in pursuance of
.the same statute. .Then it
was clear that the act had been one of irregularity, and not of
nullity. • - • - . - - • - ' - ' '. - . .
- Lord Abinger—You say that it was an irregularity and not
a nullity—that-is, that it was irregular from the circumstance
of the list not having bean delivered at the express time con-
strued to have been intended by •the statute, and that it was
not a nullity because the delivery of the list was made 10 days
before the trial. • .- ' '
The Attorney-General—Yes ; there had been:a service of
the list of witnesses more than 10 days before. the trial. Ile
would submit' that it ought not to be competent, by the rules
of law, for any party to take such an objection at the particu-
lar time at which the objection in this case had been taken,
inasmuch as that it ought to have been made at a proper
time, when the evil effect to which it was—supposing the
court were to hold it to be a good and fatal objection—calcu-
fated to lead, namely, the escape of a guilty person, might
have been avoided.. In fact, the objection should have been
taken at an earlier period of the proceedings. If the service
was bad in one case, it was equally bad in all ; if the simulta-.
neous service was a matter of absolute necessity in the one.
instance, it was equally a matter of necessity in all.
Sir. F. Pollock then rase to reply, and in the course of his
observations said that the statute ought to be read and;Con-
strued literally, or as nearly so as possible. -
Lord Abingrer.—But the. judges were compelled to make
sense of the different statutes. .
Sir F. Pollock meant to say, that the learned judges of a
century, or a century' and a half since, had not been in the
habit of construing•acts of Parliament so literally, or so near
to that which it had been intended their meaning.: or opera-
tion should be ; in other words, that greater liberties had been
taken by the judges informer times than in the present thy.
ELord, Abinger.-7And did not Sir Frederick know the chief
reason why it was so? It was that in for Mer days acts of
Parlianienl were excessively short, thereby leaving very much
for the then Sudges to put a construction upon. But now-a-
days acts of Parliament were not only very long, but were
drawn up in such a form as to comprehend, and to stand
forth with the possession of, all the ornaments, embellish-
ments, and style of the special pleader and conveyancer.
That fact might. and would perhaps account for the judges
of the present time haying become distinguished by their
more literal construction of acts of Parliament. (Laughter.)
Sir Frederick Pollock submitted that the prisoner had
taken the objection at the only period at which he .was at
liberty to do so according to the law of England, and he
would further contend, that the question ought to have.been
then put to him, had he received a list of the witnesses ?
And if the solicitor of the crown committed blunders in the
management of the proceedings, ought such blunders to be
passed over by the court because they might operate in fa-
your of the prisoner? He must say that instead of having
discovered the error, and amended it, they had gone into
court, and covered it as much ns possible.
• The Attorney-General hoped their, lordships would not
alloW a public man to be thus assailed, when he had no oppor-
tunity of defending himself.
Chief Justice Tindal—Yon should have stated these
opinions before, and have given the Attorney-General an
opportunity of remarking upon them.
• Sir F. Pollock begged their lordships' pardon, but he had
expressed the very same opinion when he had addressed the
court as in the present instance. .He considered that lie
was at liberty to observe on the conduct of the prosecution,
in a case such as the present, where a man was on trial for
his life, and the question so often referred to, he would
contend, ought to have been put in the form of the law. It
had been said that it was the prisoner's business to point
out and to take the objection. Ile would deny this asser-
tion. When it was charged upon them that they wished to
defraud the law of its delinquents, his answer was that they
ought not to stir in the matter more than the necessity. of
the case required ; and that it was not for the prisoner
nor the prisoner's counsel to have made the objection in
the first instance. He had only one more remark to
make in this case. It was not for him to - cite authorities
where there were none, because the statute had been regu-
larly observed ever since the trial. It was not for him to
' say that the point was clear beyond all doubt, but it was for
their lordships to say whether it was so dark, so uncertain,
• so without authority, that they-could come to an unanimous
opinion in one way or the other. The proper time to object
to a witness was when lie was called, but could any one there
say that there was not that sort of doubt hanging over the
matter whichAmdered it impossible for any lawyer not deeply
to regret the difficulties which surrounded this case could not
be removed, could not be cured, seeing that the causes from
' which they resulted could easily be dealt with. '
Lord Denman then said that the court would hear the
further arguments on Monday; and woaid sit at ten o'clock.
The court was excessively crowed during the whole of
the day.. Mr. Feargus O'Connor and several other chartist
leaders' were present.

SEASONABLE BEN EVOLIEN CE.—We have pleasure in
stating that W. Turner, Esq., M.P., distributed fifty pairs
of blankets to as many poor families in this town, during the
late Christmas week ; and we understand that he every week
presents sixpence each, through his housekeeper at Mill Bill,
to fifty-two decayed old women. This; charitable conduct is
worthy of all praise.—Blackburn Standard.
'FATAL Doer..—The Charleston Courier learns from a
gentleman that a duel was fought, near Tallahassee, on
Thursday evening, the • 12th inst. between General L. Read,
and Colonel Augustus Alston, in which Colonel Alston was
killed. The weapons were rifles—distance twenty paces.—
The difficulty which occasioned this fatal affair, originated
during a political;contest, and has been the cause of much
.excitement for several weeks past.